Iowa Railway & Light Corp. v. Lindsey

The error of the majority in this case appears to me fundamental. The opinion is predicated upon premises which contravene what would seem to be the clear purpose and intent of the legislature. The primary and first right to the use of the highways is in the public. This right is not subordinate to the claim or privilege for permissive use by any person or entity. As was said in substance by Mr. Justice Wagner, in Central States Elec. Co. v. Pocahontas County (Iowa),223 N.W. 236 (opinion withdrawn), the highways are established and maintained for the benefit of the public, from side to side and from end to end. Lacy v. City of Oskaloosa, 143 Iowa 704;Quinn v. Baage, 138 Iowa 426; Perry v. Castner, 124 Iowa 386.

The opinion of the majority, in terms, recognizes the principle, but, in practical effect, subordinates it to the mere permissive right of a franchise holder. The assumed extent and scope of the franchise granted appellant to erect its transmission line in the public highway are so emphasized as to make them the controlling factor in the case. Permissive rights or privileges granted to utility companies in the use of public highways are always to be construed most strongly in favor of the public. In Application of Russell, 163 Cal. 668 (126 P. 875). The opinion of the majority proceeds on the opposite theory.

It is quite inconceivable that the legislature, in the enactment of the statutes applicable to this case, intended to in any way subordinate the public welfare to the benefit of individuals or corporations desiring to operate electric transmission lines upon the public highway. Every provision of the statute touching the subject-matter of this discussion clearly and unmistakably sustains the right of the public. The authority conferred upon the railroad commission to grant to owners of electric transmission lines a privilege or franchise to erect their poles and other equipment upon the public highway is not exclusive. The same power, and by the same section of the statute, Section 8309, Code, 1927, is conferred upon boards of supervisors. The power conferred upon these respective bodies is identical, and is to be exercised in the same way. Section 8309 opens with a prohibition against the right of persons or companies to erect transmission lines on the public highway, again emphasizing the superior right of the public. The very purpose for which Chapter 383 was enacted was to provide all necessary safeguards for the protection of the public highways. It was the obvious legislative purpose and intent that nothing should be permitted thereon that would interfere with the free unobstructed use thereof. The form of the franchise to be granted, whether by the railroad commission or board of supervisors, is to be prepared by the commerce counsel. The commerce counsel is a public officer charged with the duty of interpreting the statutes so as to give effect to the legislative intent. There is neither word nor clause in any provision of the Code which gives authority to the railroad commission to designate the location of transmission lines at a particular place upon the highway, nor is there any conflict in the statutes at this point. This duty, under Section 4838 of the Code, is to be performed by the county engineer, if there be one; otherwise, by the board of supervisors of each respective county. Under the language of this statute, — "New lines, or parts of lines hereafter constructed, shall be located by the county engineer upon written application filed with the county auditor and shall thereafter be removable according to the provisions of this chapter. If there be no county engineer, the board of supervisors shall designate said location," — the power here conferred is absolute. It is the only power conferred upon any body or person to designate the location of the line. If statutes are to be construed most favorably to the public, then full scope and extent must be given to the authority conferred by the legislature upon the engineers and boards of supervisors. The county engineer does not exercise his power in contravention of any authority conferred upon the railroad commission, but solely in the exercise of a right specifically conferred by Section 4838 of the Code, and in compliance with the duty thereby imposed upon him. The grant of a franchise by the railroad commission carries with it no right or power upon the part of anyone to interfere with the exercise by the county engineer or the board of supervisors of their statutory powers and duties. The duty and authority of the railroad commission and those of the county engineer are separate and distinct, and both originate in legislative enactments. The power conferred upon the county engineer, or, in his absence, upon boards of supervisors, to designate the location of the line, is in strict harmony and keeping with other duties imposed upon county and township officers.

Section 4840, Code, 1927, is as follows:

"It shall be the duty of all officers responsible for the care of public highways, outside cities and towns, to remove from the traveled portion of the highways within their several jurisdictions, all open ditches, water breaks, and like obstructions, and to employ labor for this purpose in the same manner as for the repair of highways."

This statute imposes the duty upon officers responsible for the care of the public highways of maintaining the same free of obstructions. It confers an absolute duty upon certain officers, and imposes no limitations upon them in the performance thereof. As a further indication of the legislative purpose and intent to maintain authority in boards of supervisors and township trustees to maintain the public highways free of obstruction, the specific duty is imposed upon them by Section 4834 to "cause all obstructions in highways under their jurisdiction to be removed." The sole limitation emphasized is that poles used for telephone, telegraph, or other transmission purposes shall not be removed until notice in writing of not less than 30 days has been given to the owner or company operating such lines. In case of fences, the notice must be in writing, of not less than 60 days. It is also provided by Section 4837 of the Code that all fences and poles shall, within the time named, be removed to such line on the highway as the county engineer may designate; or, if there be no county engineer, then the board of supervisors shall fix the location. If the obstruction is not removed within the time fixed in the notice, the public authorities are authorized to move them forthwith. New lines constructed under a franchise granted by the railroad commission are, by specific provision of Section 4838, made subject to the same rules and authority of the public officers to remove such lines to a different location, designated by the county engineer or the board of supervisors. The state has not undertaken to subordinate the use of its public highways to certain permissive uses which the railroad commission and board of supervisors are authorized to grant to individuals or corporations. The only part of electric transmission lines in any way entering the public highway are the poles and guy wires. The state has not undertaken either to grant or procure an absolute franchise for telephone, telegraph, or electric companies to erect and maintain transmission lines throughout the state. It has given the permissive use of the public highways upon certain conditions, so far as such use may not interfere with the higher right of the public. If the franchise is inadequate to meet all of the requirements of the franchise holder, when exercised in accordance with the law, then it is up to the company to make such further arrangement as may be required. Suppose application were made to a board of supervisors for a franchise, would not the statute, which imposes certain duties upon such officers to keep the highways free from obstructions, be binding upon such board, as it would be under any other circumstances? The same board that might be called upon to grant a franchise might also be charged with the additional statutory duty to locate the line. In the performance of such duty, it might find itself in some embarrassment to know which statute to observe. The authority of the railroad commission in granting a franchise for the purpose under consideration is limited by other statutes, in the light of which it must be construed. It is not plenary, and guarantees only the right of the applicant to use such portion of the public highway as is not demanded or necessary for the use of the public. Just what portion is necessary and what will constitute an obstruction in the road are to be determined by the officers designated by the statute to perform that duty. The railroad commission does not, in exercising the authority conferred, determine just how the line shall be constructed. Section 8311 requires certain things to be stated in the petition, for the information and advice of the commission. The matters referred to aid the commission in determining whether or not it will grant the franchise petitioned for, but, when it is granted, do not determine the exact method of construction. When we give effect to the several applicable statutes, the conclusion of the majority cannot, in my opinion, be upheld.

I am authorized to say that Justices EVANS, MORLING, and WAGNER concur in this dissent.