190 Iowa 216 | Iowa | 1920
The day of sale was fixed, as well as conditions thereof, and the right was reserved by the court to reject any sale, and by supplemental decree or order to require a readvertisement and resale, and jurisdiction was retained to enter any further orders or decrees. This decree also established priority of certain labor claims, and directed the proceeds of the sale to be applied (1) on costs, (2) on certain claims, and (3) on the mortgage indebtedness. The property was not sold at the time fixed, and, on October 24, 1918, the receiver applied to Judge J. H. Applegate, one of the judges of the district in which the railroad was located, in vacation, for an order directing the sale of the property pursuant to the decree, representing that the expense of operation of the railroad exceeded its income; that he was without means to pay for insurance under the Workmen’s Compensation Act; that the roadbed was in such run-down condition as to render it much more dangerous to operate trains over than ordinary railroads, and that a large outlay would be required to put it in good working condition, which the receiver did not have; that, owing to the high price of labor, coal, and other things required to continue to operate the road in its present condition by a receiver, operation thereof will result in further loss and debt; that there is at present, as this receiver believes, an opportunity to sell the said property; and that a sale of the property to persons able to handle the road will be for the best interest of all persons concerned. His honor fixed the date for hearing, directed five days’ notice to be given to attorneys! in the foreclosure proceedings and to claimants therein and to the board of railroad commissioners, by registered mail, which was done, and, on the day designated, made an order, in vacation, directing the receiver to sell the property described above on November 9, 1918; “that the sale be made with the right to the purchaser to operate said property or to discontinue such operation or to dismantle the said property, at his election. ’ ’
The clause quoted does not appear in the original decree, nor was it asked in the application of the receiver. The sale
This recital, though somewhat extended, seems essential to a correct understanding of the questions raised, which we shall dispose of in cofivenient order.
“When the decree of foreclosure was entered, and the road sold, and the sale approved, and the property conveyed, the old company was, for all practicable purposes, wiped out of existence. With the sale of its road, right of way, depot buildings, side tracks, and all the appliances necessary to operate the road, the franchise, or right to operate the road, passed with the sale.
‘ ‘ The possible effects of the exercise of such a claimed power are utter disaster to the great interests of the state, certain destruction of private property, in which whole communities created and existing upon the faith of the continuous use of the chartered powers are interested; and, indeed, the life of the citizen, as well as his property rights, are thus jeopardized. Upon principle, it would seem plain that railroad property once devoted and essential to public use must remain pledged to that use, so as to carry to full completion the purpose of its creation; and that this public right, existing by reason of the public exigency, demanded by the occasion, and created by the exercise by a private person of the powers of a state, is superior to the property rights of corporations, stockholders, and bondholders. ’ ’
Railroads are constructed to answer a public object, and are bound to the state for the performance of their public duty. Their owners can do no act which would amount to a renunciation of their duty to the public, or which would directly and necessarily disable them from performing it. If the railroad is mortgaged, this is subject to its obligations to the public, and a purchaser upon foreclosure acquires the property subject to its trust relation to the state. In State v. Dodge City, M. & T. R. Co., 53 Kan. 377 (42 Am. St. Rep. 295), an injunction to restrain the company from tearing up and removing the track, ties, and iron from the roadbed was denied in the trial court, and, in reversing the ruling, the court said:
“While the title to a completed railroad is vested in the corporation, it is only private property in a qualified sense. Railroads, like all other public thoroughfares, are public instrumentalities. The power to construct and maintain railroads is granted to corporations for a public purpose. The right to exercise the very high attributes of sovereignty, the power of eminent domain and of taxation, to further the construction of railways, could not be granted to aid a purely private enterprise. The railway corporation takes its franchises subject to the burden of a duty to the public to carry out the purposes of the charter. The road, when constructed, becomes a public instru
See, also, People v. Louisville & N. R. Co., 120 Ill. 48; Pierce v. Emery, 32 N. H. 484; State v. Sioux City & P. R. Co., 7 Neb. 357; Brownell v. Old Colony R. Co., 164 Mass. 29 (49 Am. St. 442).
Manifestly, the judge in vacation might not terminate the obligation to operate this railroad for the use of the public, when that issue had not been presented in the pleadings; when the parties directly interested had not been afforded the opportunity to be present; and in contravention of statutes prescribing the manner of such termination.
II. As seen, the company held the railroad property impressed with the obligation or duty of operating it for the public good. The mortgage or trust deed covered the railroad in its entirety, and was subject to the burden mentioned. The decree of foreclosure directed the sale of the property in its entirety. The order of the judge in vacation, purporting to so modify the decree as to confer the right to dismantle on a purchaser, Was void. Since it is void, it is immaterial whether this suit is
“The question is whether the court will compel, or attempt to compel, the railway company, a bankrupt corporation, to relay the track and repair the roadbed. The court will not make a useless or futile order. It will not do a vain thing. The order prayed for should only be issued in the interest of the public. If the track is replaced, there is no reasonable probability that the road will be or can be operated. If a railway will not pay its mere operating expenses, the public has little interest in the operation of the road, or in its being kept in repair.”
That case was much like the one at bar, as was State of South Carolina v. Jack, 145 Fed. 281, where a like conclusion was reached. Defendants may not be compelled to restore at a large outlay and operate at a loss. Brooks-Scanlon Co. v. Railroad Com., 40 Sup. Ct. Rep. 183. See Northern Pac. R. Co. v. Washington Territory, 142 U. S. 492 (35 L. Ed. 1092). We are of opinion that, in view of the showing made, defendants ought not to be required to rehabilitate and operate the railroad.
IV. As seen, a railroad, having been constructed under a franchise and with powers conferred by the state for a specific service to the public, may not abandon such service or appropriate the property thereof without the consent of the state, manifested in such manner as by statute prescribed, nor can the property so set apart or the proceeds thereof be disposed of otherwise than pointed out by the statutes apparently enacted to meet such a situation. Section 2092 of the Code provides that:
Section 2093 of the Code:
“A public notice to all whom it may concern of the time of filing such petition, the object thereof, and the term of court at which the application will be made for authority to make the change, and requiring all persons desiring the repayment of money or return of property, as in this chapter provided, to appear and present their claims therefor, must be published in a newspaper printed in each county in which the change is to be made, for a period of ten successive weeks before the term of court at which the application is to be heard. The court may order any additional notice or publication that it may think proper. ’ ’
Section 2094 of the Code:
“No railway company shall be allowed to change or remove its line of road, after a permanent location and construction, without repaying all moneys, and restoring all property, or its value, which were donated to the company building the same exclusively in consideration of said railroad’s being located and constructed on such line, to the parties donating the same, their heirs or assigns, nor without first procuring the consent of all parties having liens upon the railroad, and of any township, city or county that by taxation or by the issuing of bonds has contributed money to aid in the construction thereof; but the consent of such township, city or county shall be necessary only with reference to the change to be made within its own territorial limits. ’ ’
Section 2095 of the Code:
“If the court finds that notice has been given, and the
Section 2096 of the Code relates to a situation where the railroad is relocated, and Section 2097 of the Code provides that:
“For the purpose of this chapter, the trustees of each township shall be served with notice and shall represent and act for it. No vested right of any person or persons living on and along the line of any railroad thus removed shall be defeated or affected by the removal.”
Section 2098 of the Code relates to a situation where the road is relocated.
V. Counsel for Harris and Greenberg contend that no evidence of donations “to the company building the same exclusively in consideration of said railroad’s being located and constructed on such line” was adduced. This may be conceded. Old Colony Trust Co. v. Wickard Bros., 224 Fed. 913. There was evidence, however, that taxes were voted and collected in two townships through which the railroad was constructed, amounting to about $30,000, and that such amount was collected and paid over to the railway company, to aid in the construction of its railroad. True, the exact amount was not shown. It was enough, if any such taxes were received, to exact that the company should not remove the railroad without resorting to procedure under the sections of the Code quoted. The amounts may be fixed when the action contemplated is brought.
VI. It is suggested that the statutes do not apply to individuals owning a railroad. Section 2092 of the Code reads: “Any railroad desiring to change or remove,” etc. Evidently a word has been omitted, or railroad has been personified, for use in lieu of ‘ ‘ owner. ’ ’ Construed in the light of the context, it is evident that “owner” of a railroad is intended, and we are of opinion that the word “company” is employed in that sense. Surely, the general assembly had no intention of discriminating between corporate and individual owners of railroads “permanently located and constructed.”
It is said that it was not made to appear that the railroad in controversy was ever so located and constructed. The evidence without conflict showed that it was completed early in 1913, and was operated for more than a year by the company, and thereafter for several years by a receiver. Nor had the operation of the road been entirely abandoned when the defendants purchased it.
SUPPLEMENTAL OPINION.
— The point that this court had not acquired jurisdiction, for that the abstract did not show that the final decree had been spread on the record book, was overlooked in preparing the opinion. This is the only question presented by appellees in their petition for rehearing. The abstract recited that:
Then followed a form of decree, duly signed by the trial judge, duly filed. The notices of appeal were served on April 2, 1920, mpre than two months subsequent to the filing of the said form. Did this recital of the abstract show a decree spread on the record book kept by the clerk, as required by Section 288 of the Code ? An appeal may not be taken or perfected until the decree rendered is entered in the record book, and for this reason jurisdiction of this court appears from the abstract only when enough is stated to indicate (1) the entry of the decree of record, and (2) the service of necessary notices of appeal. That the appeal was perfected is not questioned. The point made is that, though the form of decree was signed and filed of record January 30, 1920, this was not sufficient showing that it was spread in the record book April 2d following, or more than two months afterward. The language construed in Martin v. Martin, 125 Iowa 73, was: “On the 12th day of September, 1901, the court made and filed the following judgment and decree; ’1 and later on, that the appeal was taken “within six months of the rendition of said decree.” Notices of appeal were served on the 20th of the same month and year, or only eight days subsequent to the filing of the form for decree. The appeal was there dismissed, for that the abstract did not show the entry of the decree in the record book kept by the clerk.