75 Iowa 722 | Iowa | 1888
— I. This proceeding grows out of the litigation which originated between the Des Moines Street-Railroad Company and the Des Moines Broad-Gauge Street-Railway Company, two rival street railways in the city of Des Moines. It is in fact another feature of the contention between said companies which was so elaborately considered by this court in the case of Des Moines St. R. R. Co. v. Des Moines Broad-Gauge St. Ry. Co., 73 Iowa, 513, and other cases. After the filing of the opinion on rehearing in the cases named, the city council, by certain resolutions duly passed, determined that the accommodation of the city, and the welfare of its inhabitants, required that improved motive power, other than animal power, and by which cars can be moved at an average speed of not less than eight miles an hour, should be used upon all broad-gauge street-car lines then in operation in the city, and upon all present and future extensions of said lines ; and, by an ordinance passed by the council, authority was given to the Broad-Gauge Company to change its motive power from animal power to electricity, or to such other motive power as may be found practicable to move its cars at the required rate of speed. These acts of the city council were done in pursuance of an application made by said railway company to the council. The plaintiff Teachout is a stockholder in the Broad-Gauge Company, and is surety for it upon some of its indebtedness. He was active in procuring permission from the city council to the company to change its motive power. After the permission and authority were secured he instituted this proceeding, in which he claimed that the corporation in which he was a stockholder could not acquire any valid authority from the city couñcil to operate a street railroad in said city by any propelling power. He was overruled by act of the corporation before this proceeding was commenced. The agreed statement of facts sets forth this matter of difference, and the question presented to the court for its determination was whether the city council had any power or
“ This cause having been heretofore submitted to the court by and between the parties, upon the written submission and statement of facts filed with the clerk on the fourth day of February, 1888, and the court, being fully advised in the premises, finds that the equities are with the plaintiff, H. E. Teachout. It is therefore ordered and decreed by the court that the defendant,*726 the Des Moines Broad-Gauge Street-Railway Company, be restrained and enjoined from equipping and operating its lines of street railway, now laid in the city, with electric or other motive power other than animal power, and from expending the funds and moneys of said company in so equipping said line of road, or in constructing, for operation in said city, other lines of street railway, and that the costs of this proceeding be taxed against ■the defendant. The Des Moines Broad-Gauge Street-Railway Company excepts. And the Des Moines Street-Railroad Company is refused leave to file its petition of intervention, to which the said Des Moines Street-Railroad Company excepts, and has five days in which to file its bill of exceptions.
“ M a ecus Kavanagh, Je., Judge.”
“Now upon this eleventh day of February, 1888, this cause coming on to be further heard upon the petition and motion of the Des Moines Street-Railroad Company that the court decline to receive and determine this cause upon the submission and agreed statement of facts by the said Teachout and the said Des. Moines Broad-Gauge Street-Railway Company, for the reason that there is no real controversy between said parties, but the same is a fraud upon both the court and the said Des Moines Street-Railroad Company, pursuant to the order of this court made thereupon on the sixth day of February, 1888; and the said Des Moines Street-Railroad Company appearing by its counsel, Galusha Parsons, and the said H. E. Teachout by his counsel, W. L. Read, and the said Des Moines Broad-Gauge Street-Railway Company by its counsel, R. N. Baylies, and the same having been taken under advisement: Now, upon this thirteenth day of February, 1888, it is ordered that the said petition and motion be, and the same are hereby, in all things denied ; to which ruling and decision the said petitioner, by its counsel, in open court, duly excepted. And the said Des Moines Street-Railroad Company having presented its petition for leave to intervene to the merits of the said submission, the said petition and motion are denied ; to which ruling*727 and decision the said petitioner, by its counsel, in open court, duly excepted. It is further ordered and adjudged that the said H. E. Teachout recover of and from the said Des Moines Street-Railroad Company his costs of said proceeding, taxed at —=-, to which the said Des Moines Street-Railroad Company duly excepted; and it is further ordered that, in the taxation of such costs, the clerk of this court will not tax, as a part thereof, any fees for the said Teachout, or the other officers of the said Des Moines Broad-Gauge Street-Railway Company.
“Marcus Kayanagh, Judge.”
In view of the general discussion of the subject in the original opinion, the following language was used in the opinion upon rehearing : “ It is proper, however, that we should say, in order to prevent any misconstruction of our opinion, that it was not óur intention to hold, and it is not held, that the city is precluded, by the ordinance under which the plaintiff is acting, from availing itself of any improved street railway to be operated by other than animal power, if reasonably necessary to meet the public wants. We did not regard that question as in the case, and on that we express no opinion and the decrees in those cases do not require the Broad-Gauge Railway Company to remove their railroad tracks from the streets. They are enjoined from operating their lines of road by cars moved by animal power after the first day of May, 1888. This supplemental opinion and these decrees are a sufficient answer to the argument of counsel based upon the reasoning of the opinion in the cases cited. It was purposely left as an open question; and, as the personnel of the courtis now nearly the same as then, it is not
It seems to us, keeping in mind the fundamental rule that corporations are invested with such powers only as are expressly conferred upon them, and such other powers as are necessary to carry out those expressly granted, that there is little room for discussion or debate as to the powers conferred upon the Narrow-Gauge Company by this ordinance. It has the exclusive right to operate its railways by animal power; and it has no more right to interpose objections to the building and operation of other street railroads, to be operated by other power, than if no grant of power had ever been made to it. The city, it is true, agreed, by section 10 of the ordinance, that it would not “confer upon any person or corporation any privileges which will impair or destroy the rights and privileges herein granted to said company.” It is strenuously contended that the granting of the right to operate other street cars will necessarily impair the rights of the Narrow-Gauge Company, by diminishing its revenue, which is derived from the carriage of passengers. Perhaps this argument is sufficiently answered by the thought that, when the city made the contract based upon this ordinance, the parties thereto were dealing with the known, and not with the unknown. It may well be questioned whether the city had any power to contract that no other means of public travel should be allowed upon the streets of the city except by cars drawn by horses for the period of thrty years. If so, the establishment of hack-lines or omnibus-lines, or other means of public conveyance, would impair the revenue of the Narrow-Gauge Company, and thus impair its rights under this ordinance. Its right is to operate a horse railroad. It is entitled to the exclusive right to do so, and to use all improvements that may be made thereto ; but to nothing more. The city cannot impair that right; but it does not follow that it may not authorize other means of street travel. It did not
We think the decree of the district court should be reversed, and a decree will be entered in this court in accord with this opinion, er the cause will be remanded to the court below for that purpose.
Reversed.