laying down of tracks." The plaintiff contends that we have virtually placed a construction upon this statute in the construction given to words of similar import in the charter of the city of Burlington. The case relied upon is Burlington & H. Co. Ferry Co. v. Davis, 48 Iowa, 133. In that case it was held that the power to grant or refuse a ferry license involved the power to make a granted ferry license exclusive for a limited time. The defendant contends that that construction is not authoritative even in respect to that charter, because the decision of the case might have been placed upon other ground, and besides, it is said that the same or similar words should not be so construed when applied to a street railroad. The court having elected to put the decision in that case upon the ground which it did, it appears to us that the construction given should be deemed authoritative, so far as the precise question is concerned which was before the court. Whether the case of a ferry stands upon such peculiar ground that a court would be justified in finding, in given words, a power to grant an exclusive license more readily than it would find in words of similar import respecting a street railway, the power to grant an exclusive right of construction and operation, is a question upon which much might be said. A ferry is looked upon as an extension of a highway. It must be maintained in a safe way, and at stated times, so that the public can rely upon it. It is not probable that the requisite service could always be secured without contract, and in some instances we presume a contract could not be obtained which did not provide for an exclusive right. As to a street railroad it is said that there is no such exigency, as street railroads furnish only one mode of travel in the midst of others.

But street railroads certainly are coming to be regarded as of great importance, if not indispensable. The tendency of modern cities is to spread over large areas for the purpose of securing better light and air. This is made possible principally by the cheap and easy mode of transit which street railroads furnish. They are not simply a present convenience, but they anticipate and promote the growth of cities. They create, to some extent, their own patronage, by the promotion of the growth and the distribution of the population. Without question, they are of sufficient importance to call for very careful consideration, both by legislatures in the enactments of statutes concerning them, and of courts in construing the same.

We are justified in assuming that Iowa has to-day a considerable number of cities contemplating the inauguration of street railroad service. In many, probably, if not in most, instances, the lines must at first be operated at a loss. In the case at bar it is said that the lines were operated at a loss for 14 years, being nearly half of the time during which the city undertook to provide an exclusive

right. The losses were sustained, and additional tracks laid, involving an investment of over $200,000 in reliance upon the future. Almost immediately after the plaintiff's road became remunerative, the defendant company sought an opportunity to compete, and to divide the very patronage which the plaintiff, at its loss, had aided in creating. The question presented is as to whether there is any way in which cities can contract against themselves, so as to furnish any security that the losses of the early years may be repaired by the profits of the later ones. The defendant company contends that there is not. Its position is that it would be unsafe to allow a city to contract even for a limited time, because it cannot anticipate its own wants, and the power, if given, would be improperly exercised. Its argument is that city councils, as a rule, have neither sufficient honesty nor foresight. It cites and quotes largely from an opinion of Judge Brewer, in Jackson Co. Horse R. Co. v. Rapid Transit Co., 24 Fed. Rep. 306. In that case the learned Judge said: "The city may to-day determine that one street railroad will answer all the wants of the public, and so give the privilege of occupying the streets to a single company. Ten years hence its judgment may be that two railroads are needed."

It may be conceded that the future growth and wants of a city cannot be foreseen. The most that can be said is that they may ordinarily be predicted with reasonable approximation for a limited time. From this we are inclined to think it follows that an ordinance providing for an exclusive right in perpetuity, however necessary it might be to contract for the service involved in the exercise of the right, would be unreasonable, and might be declared void. In Dill. Mun. Corp. § 715, the author, commenting upon Davis v. Mayor of New York, 14 N. Y. 533, says: "The judgment of the court rests upon the sound principles that the powers of a corporation, in respect to the control of its streets, are held in trust for the public benefit, and cannot be surrendered or delegated by contract to private parties; and hence the resolution of the city council authorizing private persons to construct and operate a railroad upon certain terms, without power of revocation, and without limit as to time, was not a license or act of legislation, but a contract,-void however, because, if valid, it would deprive the corporation of the control and regulation of its streets.”

In the case at bar, the time limited was 30 years, which does not seem to be unreasonable, and especially in view of the fact that the lines were operated at a loss for 14 years. Possibly 30 years, or any shorter time, should be deemed too long in any case, if the contract were such that the street railroad company could not be required to meet the public wants as the same should arise. In the case at bar two miles only of track were specifically stipulated for, but it is not denied by the plaintiff that the acceptance of the ordinance which allowed its assignor to lay a track upon all the streets

raised an implied contract upon the part of its assignor to lay so much track as reasonably might be demanded by the public. At the time of the commencement of this controversy, the plaintiff and its assignor had in fact laid 10 miles of track, and was contemplating the laying of still more. It may be that neither the plaintiff nor its assignor did all that it should; but such a question is not before us. The ordinance appears to us to be reasonable; and our holding is that, under our statute which empowers cities to authorize or forbid the laying down of a street-railroad track, a city council may make a reasonable provision by contract for present and future street-railroad service, and may secure the company contracted with against the impairment of its profits for a limited time, and against interference with its extension during the time, if a larger and better or more immediate service can be thus obtained. This question has never before been determined by this court; but the ruling in Burlington & H. Co. Ferry Co. v. Davis, 48 Iowa, 133, goes far toward supporting the views which we have expressed. See also as having a slight bearing upon the case, City of Davenport v. Kelly, 7 Iowa, 102, and City of Dubuque v. Stout, 32 Iowa, 80; City of Burlington v. Burlington St. R. Co., 49 Iowa, 144. In New Orleans Gas-light Co. v. Louisiana Light Co., 115 U.S. 669; s.c., 10 Am. & Eng. Corp. Cas. 639, and in Boston & L. R. Corp. v. Salem & L. R. Co. 2 Gray, 1, cited by plaintiff, the question was essentially different; but there is much said in the course of the opinion showing the view which those courts took in regard to the importance sometimes of securing a service to the public by contract, even though the contract should for a limited time grant an exclusive right. Other courts have held somewhat different views, supported by more or less weight of reasoning. Some of the reasoning, however, we think, cannot be allowed much weight as applied to the condition and policy of Iowa.

Having reached the conclusion that under the section of the Code above cited the power had been conferred to make the contract in question, we have to consider whether it appears that the city council, after the Code took effect ratified the contract which it had previously (and, as we will assume, without power) undertaken to make. There is no question but that the council undertook to adopt an ordinance purporting to revise and readjust certain ordinances, including the one under which the plaintiff's assignor commenced the construction of the road. It is claimed, however, that this ordinance is void, because it embraced as many subjects as there were ordinances referred to. For the purposes of the opinion, it may be conceded that what purports to be an ordinance did not take effect as such. But it appears to us that it has the force, at least, of a resolution, so far as the provision in question is concerned. The plaintiff's assignor acted upon it, and expended money, not only in laying additional track, but in for paying for

street pavement. We feel justified in saying that everyone understood that the ordinance of 1866 was ratified and binding upon the city and the plaintiff's assignor, and what was done afterward was done with that understanding.

,,

It is true that it is provided in the so-called ordinance, relied upon as an act of ratification, that "all ordinances granting privileges, or which expired after a term of years, shall not be enlarged or abridged by their incorporation into these revised ordinances." The defendant relies in part upon this provision. It insists that if the plaintiff is sustained, it would follow that an ordinance granting a privilege would be enlarged. In one sense this might be true, but not, we think, in the sense of the provision. In our opinion the meaning of the provision is that the ordinances thus revised should not be enlarged beyond the original intention.

We reach the conclusion, then, that the plaintiff's right is exclusive, unless there is something in the constitution of Iowa which operated as a restriction upon the legislature, which prevented the grant of power in question to the city. It is contended by the defendant company that the constitution does prevent such grant. The restriction relied upon is found in section 12, art. 8, and is in these words: "No exclusive privileges, except as in this article provided, shall ever be granted." To determine what is meant we must look at the context. The provision is found in article 8, which pertains to corporations. The article limits, to some extent, the power and rights which a body of men might claim as a corporation. We do not think that it was intended to limit the powers and rights of individuals, except in their relation to a corporation. Now, while it may be that the plaintiff's assignor was a corporation, yet the right in question was not a corporate right. If it exists it is simply by contract, as an individual might obtain and enjoy the right. In our opinion the provision does not apply to a case like that at bar.

So far, the members of the court are substantially agreed, but the writer of this opinion does not reach the same result throughout that is reached by the majority. We are agreed that, where the plaintiff is operating a track, no other company can be allowed to operate a parallel track upon the same street. We are also agreed that where the plaintiff has entered upon a street, and is operating a track to some extent, in good faith and with intent to supply the public wants upon such, that it should have the right to extend its track upon the same street if done within a reasonable time, and that no other company should be allowed to occupy the same street. The writer, however, is of the opinion that the plaintiff's exclusive right does not extend to streets not entered upon by it until it had been occupied by another company. He does not think that the ordinance took effect as a contract in relation to a given street

until the plaintiff, or its assignor manifested its acceptance by actual entry upon and occupancy of at least some part of the

street.

The majority think that the ordinance took effect as a contract in relation to all the streets at the time of its written acceptance by the plaintiff's assignor, which it appears was made soon after the passage of the ordinance; and that the public rights are secured by an implied obligation on the part of the company, acting under the ordinance, to hold itself in readiness at all times to construct and operate so much track, and upon such streets as the public convenience may require, to be determined by the city council in the exercise of a reasonable and reasonable and proper discretion-the company to have a reasonable time to comply after the requisition shall be

made.

Upon the defendant's appeal the decree must be affirmed; and upon the plaintiff's, reversed.

Authority of Municipality to Grant Exclusive Privileges to Street Railways.—In Jackson county Horse R. Co. v. Interstate Rapid Transit R. Co., 24 Fed. Rep. 30, the same question was presented as is decided in the principal case, and an exactly opposite conclusion was reached. It appeared that in 1872, in the city of Kansas, in Kansas, passed an ordinance granting to the Kansas City & Wyandotte Street R. Co. "the sole right for the space of 21 years to construct, maintain, and operate their railway over and along all the streets in said city," subject as to restrictions as to grade and condition of road. In 1881 the company leased to the Jackson County Horse R. Co. a part of its road, running through a certain street, and in 1883 the city passed another ordinance, granting to the Interstate Rapid Transit R. Co. the right to construct and operate an elevated railroad through certain streets, including the street occupied by the Jackson County Horse R. Co., which filed a bill to enjoin the building of the elevated road. Held, that so much of the ordinance of 1872 as purported to give exclusive privileges to the lessor or to the complainant was beyond the powers vested in the city of Kansas, and void, and that complainant had no right to challenge the validity of the ordinance of 1883, or to restrain defendant from building its road.

Judge Brewer, in delivering the opinion of the court, said: "The precise question is, Had the city of Kansas the power to grant for a term of years the exclusive right to occupy its streets with street railroads? The question must be answered in the negative. Let me in the outset formulate two or three unquestioned propositions: (1) The legislature has, as a general representative of the public, the power, subject to specific constitutional limitations, to grant special privileges; (2) It may, with similar limitations, grant the like power to municipal corporations as to all matters of purely munici pal nature; but (3) as the possession by one individual of a privilege not open to acquisition by others apparently conflicts with that eqality of rights which is the underlying principle of social organization and popular government, he who claims such exclusive privilege must show clear warrant of title, if not also probable corresponding benefit to the public. Hence the familiar rule that charters, grants of franchises, privileges, etc., are to be construed in favor of the government. Doubts as to what is granted are resolved in favor of a grantor, or, as often epigrammatically said, a doubt destroys a grant.