54 Iowa 463 | Iowa | 1880
Lead Opinion
It is provided that an “ appeal may be taken to the Supreme Court from an intermediate order involving the merits, and materially affecting the final decision.” Code, § 31G4. The motion involved the merits, and when it was sustained the final decision was vitally affected; for as the pleadings now stand in the court below the plaintiff cannot introduce .any evidence in relation to the steam motor, nor can the right of the defendant to authorize its use be controverted in this ■action. By sustaining the motion the Circuit Court has stricken all allegations upon which such question can be based from the pleadings. By the express words of the statute an appeal lies in such case. By what authority can an appeal properly taken be dismissed? None other, we think, than statutory authority. Counsel have not called our attention to such a statute, and we know of none. If the remaining cause 'of action had been tried, it is possible, whatever might have been its result, it would be deemed a waiver of •the appeal if brought to the attention of this court at the proper time. Code, § 3212. It is probable also that the court below would have the power to postpone a trial there until the appeal was disposed of. There is nothing in- the record which tends to show the plaintiff has done anything since the appeal was taken which amounts to a waiver, or will authorize a dismissal of the appeal. In fact the record .fails to show that an issue has been formed, or that either party desires a trial below until this appeal is determined.
In 1878 the city granted “I. M. Davies permission to run one of Baldwin’s Noiseless Steam Motors on Brady street hill on probation for thirty days.” The Motor was run and operated on the track of the street railway company.
It has been held that cities have the authority to grant railway companies who use steam in operating their roads the right to occupy with their tracks a street or streets of the city. Milburn v. Cedar Rapids, 12 Iowa, 246, and numerous other cases. These decisions were based on a statute providing that “any railway corporation may raise or lower any turnpike, plank road or other highway for the purpose of having its railway pass over or under the same, and in such cases said corporation shall put such highway as soon as may he in as good repair and condition as before such alteration.” Code, § 1262. In the Milburn case the words “ pass over ” were construed to mean “ upon ” or “ lengthwise,” and this construction has been several times followed in subsequent cases. As thus construed the legislative assent had been given to the laying down of railway tracks in streets and the operation of the same by the use of steam, subject, however, to proper equitable control and police regulations. Newton & S. W. R. R. Co. v. The Mayor, etc., 36 Iowa, 299. But it never has been held that cities had the authority to grant such privileges in the absence of a legislative grant to that effect. Whatever may have been said by judges who have written opinions in the cases in which this question has been determined or discussed, it is quite apparent, we think, that all the cases subsequent thereto are based on the Mil-burn case, which, as we understand, is based on the statute. It is worthy of note that, notwithstanding the several decisions following the Milburn case, it has not been deemed sat
Finally, in 1874, the General Assembly enacted a substitute for Code, § 1262, which provides- that railway corporations may “ cross over or under ” any highway with its railway. Chapter 47, Laws of Fifteenth General Assembly. To cross over or under does not mean upon or lengthwise. Under the circumstances the legislative intent has been clearly expressed, and it is to the éffect that railways operated by steam cannot be constructed upon streets and highways except as provided in a section of the Code hereinafter referred to. Or, if this be not true, the legislative assent contained in section 1262 of the Code has been withdrawn by the enactment of the statute of 1874. We are not called on to vindicate or condemn the wisdom of this statute; to construe or ascertain its meaning is our only province. The various decisions above referred to are not now correct expositions of the law, because they have been superseded by that branch of the government whose province it is to enact, but not to construe, the law.
The defendant was organized under a special charter,. and it is stipulated by counsel that neither the charter or ordinances of the city expressly prohibit the street railway company “ from using other than animal power in operating its
The charter empowers the defendant to “open, alter, abolish, widen, extend, establish, grade, pave, or otherwise improve and keep in repair, streets, avenues and alleys,” That the requisite power is not contained in the charter we regard as beyond serious controversy. We feel the more certain of this because the learned counsel for the city does not claim such authority is contained therein. It may be that cities organized under the general incorporation law have such authority; if so, it is because there is a statute to that effect. Code, § 464. Such statute, however, is not applicable to the defendant.
The fee of the streets is in the city, and yet it is held in trust for the use and benefit of the public. The city does not have the authority to sell and convey the title held by it or authorize the streets to be used for private purposes. Nor can it without legislative authority grant the use of a street for a public purpose, which renders it dangerous for the public to travel over it in any other manner. The power partakes of that of eminent domain, which, under our government, can only be granted by the law-making power of the state. ■ ■
Streets and highways are under the exclusive control of the general assembly. It matters not if the fee of the streets is in the city, it has no authority to control or grant rights and privileges thereto or thereon, unless it has been so authorized. The power and authority of the city is contained in its charter and bounded thereby. It. has no other or different control of the streets than is- prescribed in the charter or the general statutes of the state. A distinction has been drawn between a railway operated by horse and steam power,
The strong current of the authorities, as we understand, is in accord with the views herein expressed. 2 Dillon’s Municipal Corporations, 567, 568; Davis v. The Mayor, etc., 14 N. Y., 506; Milshaw v. Sharp, 27 N. Y., 611; Commonwealth v. W. E. R. R. Co., 27 Pa. St., 344; Protyman v. I. C. R. R. Co., 9 Ind., 468; State v. Inhabitants of Trenton, 36 N. J. L., 83; Memphis City R. R. Co. v. Memphis, 4 Coldw., Tenn., 406.
The modern doctrine we understand to be this: “ Whenever an action for an injury to the property or person of another will lie against an individual, corporations will in like circumstances be equally liable for injuries committed by their officers and agents, acting within the apparent scope of their authority.” It was, therefore, held in Lee v. The Village of Sandy Hill, 40 N. Y., 442, that the defendant was liable for a trespass committed under the direction of the village trustees. The trespass consisted in removing a fence which they erroneously supposed encroached upon the street. In The City of Pekin v. Newell, 26 Ill., 320, the city was authorized “ to birild and construct an embankment and plank road across the Illinois river bottom oj>posite said city.” Instead of so doing a pile bridge was constructed in such a negligent manner that the horse of the defendant in error
Reversed.
Dissenting Opinion
dissenting. — Decisions in relation to the occupancy of streets by ordinary railroads, not designed for street purposes, are, in my judgment, not strictly applicable to this case. A street railroad; whether operated by animal, steam, or other power, is not an obstruction to the same extent. It is consistent with all the legitimate uses to which a street is put, and has come to be deemed a public necessity.
In my opinion a city council may regulate the use of streets without any special grant of power in this respect, and may, in its discretion, with a view to promoting the public interest; allow cars to be drawn thereon for street purposes, either by animals, steam, atmospheric pressure, or other power, and that, too, though the cars or motors may be such as to cause fright to some extent to timid horses. It must, I think, be allowed in each case to judge of the objectionableness, if any, of proposed cars or motors, and whether the inconvenience, if any,’ resulting to any persons, as causing fright to horses, would be such as to overcome the. considerations of public necessity or advantage.
Steam fire engines are well calculated to frighten timid horses, yet no one supposes that a city council may not permit them to be drawn upon a street. Many other things may be done in streets which are calculated to frighten timid horses, but they are not necessarily to be forbidden for that reason. Private convenience must oftentimes yield to what is deemed a paramount public convenience..
When the city council of the defendant city granted permission to use a motor upon one of its street railways, we must presume that it did so because it considered that the
Whether a city council, without express authority from the legislature, can grant an exclusive right to operate a street railroad, by the use of a motor or otherwise, or what right it can grant, if any, are entirely different questions. Upon them I think that the decisions have not been entirely uniform. If the city council can grant no right, then an attempt to do so would be void, and the ground of the plaintiff’s complaint would be simply that the city suffered the motor to be used. But such sufferance would not in my judgment be negligence, because I think that a city council may exercise a discretion in relation to what it shall suffer, and what it shall forbid, so long as it acts in good faith, and with a view to promoting the public convenience. I see no error in the ruling of the Circuit Court.
Rehearing
ON REHEARING.
A rehearing was granted on the application of the defendant, and it is deemed best to restate the material question determined in the foregoing opinion, and state more fully the reasons inducing us to adhere thereto.
The pivotal question is, although the fee-title to the streets is in the city, yet it is held in trust for the public, subject to the control of the general assembly. Assuming for the present this proposition to be correct, it necessarily follows the sovereign power may, or may not, grant to cities the power to grade or otherwise control the same. Therefore, the claimed power, whatever it may be, should affirmatively appear to have been expressly granted in the charter, general statutes, or can be necessarily implied therefrom. So far from this being so, we think the contrary has been clearly indicated. Section 4.64 of the Code provides that cities may authorize or forbid the construction of railways in streets, but such authority can
Afterward there was enacted chapter 47, of the acts of the Fifteenth General Assembly, repealing § 1262 of the Code, and enacting a substitute therefor. See IVIcClain’s Code, §- 1262. This last statute authorizes railways to cross over or under any highway. There are no other statutes bearing on the subject under consideration, therefore, it can be safely-affirmed there is none giving the consent of the sovereign power to the construction of a railroad lengthwise along any highway.
It is insisted the Milburn case was not based on Code, § 1262, and that the foregoing opinion overrules that case. To this it may be said, in the first place, that such statute was in existence when that and all other cases were decided in which the question under consideration was before the court, and, therefore, no such question as the one now before us could have arisen in those cases. But it seems to us there can be no doubt as to what was decided in the Milburn case, or the ground upon which it was placed. It is there said: “Now the law making power of this State has thought proper, as we construe the statute, to give to railway companies the right to construct their railways upon streets of cities, and they have invested the local governments of those cities both with the fee of the soil of the streets, and the exclusive control over the same, and if, in the exercise of their proprietary rights and police regulations over streets, they should determine that iron rails and their use are a legitimate street improvement, upon what ground can the court determine otherwise, or control their authority in this respect. We apprehend none, for the reason that both the company a/nd the city have derived
It is said that “ cities, by virtue of the original dedication of the streets to the corporation, obtained authority to devote them to railroad purposes,” and that this doctrine was announced in Cook v. The City of Burlington, 36 Iowa, 357. The same point was made by counsel in Hughes v. M. & M. R. Co., 12 Iowa, 261, but the case was determined on the ground stated in the Milburn case. The only point decided in the Cook case was that the city might voluntarily do what the railroad company could accomplish by calling into ex ercise the power of eminent domain.
It is not claimed the dedicator in the act of dedication provided that said roads might occupy the streets, but as the act of dedication is silent as to the uses that may be made of the streets, the authority “given to cities by the statute regulating their dedication to the public” cannot be abridged. This implies there is an affirmative statute other than ,the charter giving cities control of the streets. We fail to find any such. There have been several enacted from time to time regulating the dedication of streets and public grounds. They are all in substance the same, and provide that “ the acknowledgment and recording of such plat is equivalent to a deed in
- The title is vested in the city for the use of the public. The city holds the title in trust for the public. The latter is, and can only be, represented or bound by the sovereign or law-making power. The city is much less than this, being the creature of such power, and possessing, only the powers expressly granted or necessarily implied. 1 Dillon on Municipal Corporations, § 55.
It is admitted on all hands the highways of the State are subject to the law-making power, and their use is controlled and governed thereby. Mills on Eminent Domain, § 203.
It is conceded the city, having first obtained the legislative assent, has authority to grant railway companies the right to use, and occupy with their track, a street of such city, and there is nothing in any of the opinions cited in Kucheman & Hinke v. The C., C. & D. R. Co., 46 Iowa, 366, which can be properly construed as going beyond this.
This whole doctrine is summed up in 2 Dillon’s Municipal Corporations, §§ 575, 576 and 577, after an examination of the reported cases by the learned author, and it is there said : “Where the fee of the street is in the municipality in trust for the public, or in the public, the control of the legislature is supreme, and it may authorize or delegate to municipal bodies the power to authorize either class of railways to occupy streets without providing for compensation either to the municipality or the adjoining owners.”
Our examination of the authorities leads us to the conclusion that the stated proposition is undoubtedly correct.
Counsel cite Moses v. The Pittsburgh & Fort Wayne R. R., 211 Ill., 516; I., B. & W. R. R. Co. v. Hartley, 67 Id., 439; Lexington & Ohio R. R. Co. v. Applegate, 8 Dana, 289; Atchison & Nebraska R. R. Co. v. Garside, 10 Kan., 552; and other cases. Lengthy quotations are made from some of the opinions for the purpose of establishing the proposition that cities have the power to authorize railroads to occupy a street
No adjudicated case to which our attention has been called, and we believe it may safely be affirmed none exists, in which it has been held a city may authorize a railroad operated by the use of steam to occupy the streets of a city, unless authority to this effect has been granted by the sovereign power.
It is said: “All courts'everywhere have for the last fifteen years, without a dissenting opinion, conceded the authority of cities to grant the use of streets for horse-railways.” Because of this, it is further' said when it is admitted cities have authority to decide that one kind of advanced mode of travel may be allowed, their jurisdiction is coriceded, and cannot be controlled by the courts. We shall not stop to discuss either proposition. It will be conceded, if no change is made in the grade of the street, the weight of authority seems tq be the city may authorize a horse-railway to occupy the same. This doctrine is based on the ground “ there is no annoyance from fire, smoke, steam-whistles, or rapid progress, and it does not signify that the street railroad has an exclusive right to use its own track when occasion requires.” Mills on Eminent Domain, § 205. .It was so held in Henchman v. The Patterson Horse R. R. Co., 17 N. J. Eq., 75; and in that State the fee of the streets is in-the abutting owner. It had been previously held in Starr v. Camden & Atlantic R. R. Co., 24 N. J. Law, 592, that a highway could not be occupied by a railroad operated by steam, with legislative consent, without compensating the abutting owner. Both these cases are referred to with approval in Jersey City & Bergen R. R. Co. v. Jersey City & Hoboken Horse R. R., 20 N. J. Eq., 61, upon the ground, it is presumed, stated in The Inhab
The question before the court was whether the defendant had authority to permit the steam motor to be used on tlic street named in the petition. This question was determined in the negative. This being so, the further question arose whether the defendant was liable, conceding the allegations oí the petition to he true. This was determined in the affirmative. And beyond these two questions we had no occasion to go, and nothing short of this would have met the exigencies of the case.
The former opinion is adhered to¡
