Citation Numbers: 188 Iowa 272
Judges: Evans, Preston, Salinger, Weaver
Filed Date: 2/16/1920
Status: Precedential
Modified Date: 7/24/2022
The Cascade Bridge is a structure erected by the city of Burlington, about the year 1896, over a deep ravine. Its construction was instrumental in connecting the city proper with a pleasure resort known as Crapo Park. The bridge is 476 feet long, 30 feet wide, and is suspended 97 feet above the bottom of the ravine. After its construction," the city council, by an appropriate ordinance, authorized the plaintiff corporation to extend its railway line over it, and to lay its rails upon it. By an appropriate ordinance in 1919,
The broad defense urged by plaintiff is that, by virtue of the ordinance under which the plaintiff was authorized to extend its railway and to lay its rails upon said bridge, it was provided that the plaintiff should pay “$100 per year for the maintenance and repair of the bridge.”
The contention is that this ordinance and the acceptance of its conditions by the plaintiff became, in legal effect, an inviolable grant and contract, and that it is now beyond the power of the city council to impose upon the plaintiff any additional burdens, under the guise of special assessments. A consideration of the defense thus put forth involves the possible consideration of two questions:
(1) Did the city, through its ordinance, purport to enter into such a contract as claimed?
(2) If yea, did it have power to enter into such contract?
If both of these questions must be answered in the affirmative, the plaintiff should prevail. If either must be answered in the negative, the plaintiff must fail.
Section 1 of the ordinance relied upon by plaintiff, and. enacted August 5, 1896, was as follows:
“Section 1. That the Burlington Electric Railway Company of Burlington, Iowa, in consideration of their laying a double track street railway on South Main Street in said city from Cedar Street to Moltke Street and extending said double track on South Main Street from its present terminus at Moltke Street to the entrance of Crapo Park, and the equipment and operation of the same in all respects, in conformity with the ordinances of the city of Burlington
It will be noted that this section incorporated by reference an existing ordinance, adopted January 29, 1890L, Turning to this incorporated ordinance, Sections 7 and 11 thereof are as follows:
“Sec. 7. In case said city shall at any time pave or otherwise improve the surface of any street or part thereof along which such street railway may run, said company shall pave or otherwise improve the space between the rails of its tracks, switches and turnouts so that it shall correspond with the paving or the improvement of the street outside of the tracks. Said paving or improvement to be done under the supervision of the internal improvement committee and city engineer, and as provided in the ordinance, ‘Requiring Street Car companies to Pave or Macadamize/ adopted July 2, 1888, except that said company shall not be required to pave outside of its tracks.
“Sec. 11. The space between the rails on all streets, whether improved or unimproved, upon which said street ' railway is situated, shall be kept in repair and even with the top of the rails, and if said company shall fail to keep the space between the rails in good repair and even with the top of said rails, the said city may make the said repairs and
It is to be noted also that Section 7, here quoted, incorporates by reference a previous ordinance, adopted July 2, 1888. Of this incorporated ordinance, Section 1 thereof is as follows:
“Section 1. Whenever the city council shall order any street or part of street paved or macadamized upon which street railway company is located, it shall be the. duty of such company to pave or macadamize and maintain three and one-half feet in width each way, commencing at the center of the space between the rails, and such paving or macadamizing shall be done in the manner, at the time and like material as required of the owners of the property abutting upon the street or part of street paved or macadamized.”
Construing, therefore, the ordinance of 1896 in the light of the incorporated ordinances of 1890 and 1888, we are agreed in the view that it evinced no intention to relieve the street railway company of its obligation, under the preexisting ordinances, to “pave” or “otherwise improve” the space between its rails, whenever such paving or improvement should be ordered by appropriate action of the city council.
We find nothing in the record on which the charge of fraud or misappropriation can be predicated. $100 per year is not such a princely sum, as compared with the current expense of maintaining and repairing so large a structure,
“Sec. 1619. The articles of incorporation, by-laws, rules and regulations of corporations hereafter organized under the provisions of this title, or whose organization may be adopted or amended hereunder, shall at all times be subject to legislative control, and may be at any time altered, abridged or set aside by law, and every franchise obtained, used or enjoyed by such corporation may be regulated, withheld, or be subject to conditions imposed upon the enjoyment thereof, whenever- the general assembly shall deem necessary for the public good.”
The foregoing was a substantial re-enactment of Section 1999 of the Code of 1873. The effect of this section was to reserve to the legislature full power of future legislation) which should be obligatory both upon the city and upon the operating corporation.
Section 1056-a44 of the Supplement of 1913 is as follows:
“Sec. 1056-a44. That in every such city the owner of
It is clear, therefore, that this statute imposed upon the plaintiff corporation the very obligation which is sought to be enforced by this special assessment. No question of impairment of the obligation of a contract is involved, nor any other constitutional question. If there were, it would be fully answered by Section 12 of Article 8 of the Constitution of Iowa, as follows:
“Sec. 12. Subject to the provisions of this article, the general assembly shall have power to amend or repeal all laws for the organization or creation of corporations, or granting of special or exclusive privileges or immunities, by a vote of two thirds of each branch of the general assembly; and no exclusive privileges, except as in this article provided, shall ever be granted.”
It follows that the order of the district court was right, and it is, accordingly, — Affirmed.