Lapas attēli

power over the streets. Under that statute, no doubt, the city council assumed authority to pass an enactment in the form of an ordinance of date December 10, 1866, referred to as the Dr. Turner ordinance. and is as follows:

“Section 1. That consent, permission, and authority is hereby given and granted to and duly vested in the Des Moines Street Railway Company, and their successors and assigns, to lay a single or double track for passenger railway lines, with all necessary and convenient tracks for turnouts, side tracks, and switches in, upon, and along all the streets, and such alleys only fronting on which said company have depots, stables or car houses, and over the bridges and such streets in the city of Des Moines, with their present and future extensions and connections, and authority is hereby given said company. their successors and assigns, to keep, maintain, use, and operate thereon railway cars in the manner and for the time, and upon the conditions hereinafter mentioned and prescribed."

Section 2 provides that the cars shall be operated by animal power. Section 3 provides that the same shall be used for carrying passengers and baggage. Sections 4, 5, 6, 7, and 8 are not material to this inquiry. Section 9 provides within what time the first mile shall be completed and in operation. Section 10 which, with section 1, more than all other matters are the subject of this litigation, is as follows:

“Sec. 10. The right herein granted to said company to operate said railway, shall be exclusive for the term of thirty (30) years from the time the first mile of said track is laid and cars running thereon, and the said city of Des Moines shall not, until after the expiration of said term, grant to or confer upon any person or corporation any privileges which will impair or destroy the rights and privileges herein granted to said company."

Section 11 is with reference to building to fair grounds. Section 12 requires annual statements, and is with reference to taxes. Section 13 need not be stated, while section 14 is with reference to acceptance of the terms of the ordinance.

The ordinance was timely accepted, and by January 1st, 1868, sufficient tracks had been constructed and in operation as to be the beginning of the 30 years referred to in section 10. Complainant shows that by assigns, transfers, etc., it is the successor of the company named in the ordinance. The 30-year period referred to in the ordinance expired January 1, 1898, and whether the rights and franchises of the company expired 9 years ago, or the exclusive and monopoly period only, is the real question of the case; the city contending that all rights then ended, and the street car company, that the exclusive period only, with its rights as perpetual in common with such other companies as may desire with the consent of the city to go into business,

The Des Moines Street Railway Company named in the Dr. Turner ordinance operated the lines until 1886, when it sold and conveyed the property, franchise included, to the Des Moines Railroad Company. About that time another company was organized, referred to as “Broad Gauge Company," with a purpose to construct and operate lines by horse power. Litigation ensued between the two companies to which the city was a party. The litigation resulted: (1) The exclusive provision of section 10 of the ordinance of December 10, 1866, was upheld, and the Broad Gauge Company was enjoined from operating (2) It was held that whether the city under the revision of 1860 had

authority to pass the ordinance of 1866 was not important, as the Legislature had since recognized and ratified it. Des Voines Street Railroad Cases, 73 Iowa, 513, 33 N. W. 610, 35 N. W. 602; Des Moines Street Railroad Cases, 74 Iowa, 585, 38 N. W. 496. Thereupon the city granted authority to the Broad Gauge Company to operate by electric power; and the courts held that operating by electric power was not a violation of the exclusive right to operate for 30 years by horse power. Teachout v. Des Moines Street Car Co., 75 Iowa, 722, 38 N. W. 145. The two companies disputed with each other and the city until 1889, when a settlement was effected by a consolidation resulting in the Des Moines Street Railroad purchasing the electric company, Suits were settled and dismissed, the city council adopting a resolution imposing certain conditions, and the company accepting them.

It will be recalled that section 2 of the Turner ordinance of December 10, 1866, required the moving of cars by animal power. But March 8, 1890, the city council amended it by providing that the power used could be electric or other practical motor power. And the terms of that ordinance were accepted by the street car company. Less than two months thereafter the Legislature by chapter 11, p. 19, Acts 23d Gen. Assem., approved April 24, 1890, with a publication clause, legalized said ordinances as follows:

“Sec. 2. All ordinances or resolutions of such cities or incorporated towns heretofore enacted granting to any person or company the right to propel its cars by electricity are hereby declared legal and valid.”

So that from the foregoing it will be seen that we have a case as though the ordinance of December 10, 1866, was passed under full statutory authority, with section 2 reading that the power shall

be electric “or other practical motor power, and as though the Des Moines Street Railroad Company was named in the ordinance.

Still later on complainant herein, by purchase, became the owner, including the franchises, of other lines constructed in adjacent municipalities, now a part of the city of Des Moines. In 1898 when the 30year exclusive period of the Turner ordinance expired, complainant had about 40 miles of road, and when the resolution now to be mentioned was passed, it had about 70 miles of road, all in operation. November 21, 1905, the city council adopted a resolution. The wording thereof was the result of several efforts in phrasing. But by passing it, it became the work of the council, and the resolution is as follows:

One "whereas” is that questions have been raised as to the rights of the complainant to maintain its tracks and operate its lines on the streets; and the other “whereas” is that to preserve the rights of the city, and that such questions be speedily determined. Then:

"Be it resolved by the city council of the city of Des Moines that said companies be and they are hereby ordered to remove all of their tracks, poles, and wires from the streets, bridges, and public places of the city of Des Moines, and to restore and repair the surface and pavement, where paved, of all of the streets along which they now are operating their lines, and said companies are hereby ordered to commence said removal within twenty-five (25) days after the passage of this resolution.

“Be it further resolved that should the said railway companies fail to commence such removal within tlie time above specified, the city solicitor

be and he is hereby instructed to take such action as he shall deem advisable and necessary to secure the enforcement of the above resolution.

“Further resolved that the city clerk serve a copy hereof upon the Des Moines City Railway.”

Service was made November 24, 1905, whereupon this action was brought. The complainant protested against this resolution. Complainant has 70 miles of street railway now in operation costing large sums of money, built under the ordinance of 1866. It claims to own this vast property, and to be operating the same. Whether it has such right or not, it makes such claims, and claims a contract therefor, but a claim denied by the city.

Section 10, art. 1, of the United States Constitution provides: "No state shall pass a law impairing the obligation of contracts.” That means that there must be a contract. Whether there is a contract is the controversy herein. There must be an obligation. But that depends in this case as to whether there is a contract. Whether the resolution of November 21, 1905, is a law, is a legal question, affirmed by the company, and denied by the city. And while the constitution says, “No state shall pass a law impairing a contract,” all courts and all lawyers agree that the word “state” means that a city or other subdivision or agency of a state cannot be allowed to impair a contract. And it is also agreed that if the company has the right to own and operate its lines under a contract by ordinance and acceptance thereof, that the city will be impairing such contract, if over the protest of the company, an ordinance is passed terminating such contract.

The evils of the days of the confederation, during and following the War of the Revolution, were in mind when our Constitution was formulated and adopted. The makers of our Constitution believed, as all fair-minded men now believe, that states and cities should observe and have the same regard for contracts, as do individuals of integrity. In those days it was common for states to not only repudiate their contracts, but destroy by legislation the contracts between individuals. . And in a few instances since the adoption of the Constitution states have by legislation attempted this; notably the state of Georgia after granting some lands learned of the unpopularity thereof, and on charges against some of the members of corruption, with some proof tending to sustain the charges, undertook on its own motion by its Legislature to cancel its contract. The case was carried to the Supreme Court, and what Chief Justice Marshall wrote in the case of Fletcher v. Peck, 6 Cranch, 87, 3 L. Ed. 162, has been as a guide from that year (1810) to this.

Of late years the states have but seldom attempted this. But that it is one of the evils of municipal government of the day is a fact known by all who read or are observing. It is no attack upon the personnel of city governments to say this. It is the system that has brought it about. It too often happens that good men, but scarcely capable of managing small affairs, are given official position in municipal affairs. The result is that no well-defined course or policy is mapped out, and nearly everything done by one administration is sought to be overthrown by the next, regardless of costs, and the loss in expenditure of thousands of dollars of the people's money.

As long as this is mere legislation, under present systems there is no help for it, because in mere legislation, one council cannot bind a succeeding courcil. One can enact, but the next can repeal. But when the enactment of a council is a valid contract, then the next council cannot repeal. And courts will and must see to it that the contracts are observed, and all talk about the wrongs of the contract, or favor with which the repeal is received, should not move a court. So that if sections 1 and 10 of the ordinance of 1866, as amended, and as legalized by the Legislature, were a contract with complainant's assignors, then such contract cannot be destroyed, nor even impaired by a later enactment of the city council, because all the courts hold, and all lawyers agree, that the word "state" included the word "city" in the Constitution, where it recites: "No state shall pass any law impairing the obligation of contracts.” And that an enactment of a city council is a law, of course, is conceded by all, and needs no elaboration.

The complainant contends that it has a perpetual contract. The city denies this, and by an enactment declared the complainant a trespasser on the streets. And that thereby we have a case arising under the Constitution is the holding of this court, and of which I am not in doubt. What is held is that if the federal question is presented in good faith is not merely colorable, that even if there is a well founded difference of opinion as to the merits of the question, but the question is fairly stated in the pleadings; then a United States Court takes jurisdiction, not only over that question, but as to the whole case on all questions. The correct rule cannot better or more clearly be 'stated than by Justice Brown in the Indianapolis Street Railway Case in 166 U. S. 557, 17 Sup. Ct. 653, 41 L. Ed. 1114.

"It should be borne in mind in this connection that jurisdiction depended upon the allegations of the bill, and not upon the facts as they subsequently turned out to be."

And again : "All that is necessary to establish the jurisdiction of the court is to show that the complainant bad, or claimed in good faith to have, a contract with the city, which the latter bad attempted to impair."

And this court has jurisdiction of this case regardless of the citizenship of the parties. One need but read the case cited, and the following: Walla Walla v. Water Company, 172 U. S. 1, 19 Sup. Ct. 77,43 L. Ed. 341; Vicksburg Waterworks Company v. Vicksburg, 185 U. S. 65, 22 Sup. Ct. 585, 46 L. Ed. 808; Railroad v, Mississippi, 102 U. S. 135, 26 L. Ed. 96; Shoshone v. Rutter, 177 U. S. 505, 20 Sup. Ct. 726, 44 L. Ed. 864. These cases, and the cases therein cited, make it wholly unnecessary to multiply citations.

But counsel for the city contend that the resolutions of 1905 declaring complainant's rights at an end were not a law, because in the form of resolutions, and that ordinances only are laws of a city. Congress at every session passes laws in the form of joint resolutions. Many Legislatures often do the same. And with cities it at all times is difficult to determine in which form it should act. That a council can authorize the occupancy of its streets by resolution, as well as by ordinance, had been held by the Iowa Supreme Court. The Mer

chants' Company v. Railway, 70 Iowa, 105, 28 N. W. 494; Street Railway v. City of Des Moines, 73 Iowa, 513, 522, 33 N. W. 610, 35 N. W. 602. And that a resolution is a law, when the effort is made to terminate what is in fact a contract, has been held in the following cases : Saginaw Gas-Light Co. v. City of Saginaw (C. C., by Judge Brown) 28 Fed. 529; Vicksburg Waterworks Co. v. Vicksburg. 185 U. S. 65, 22 Sup. Ct. 585, 46 L. Ed. 808; Electric Co. v. Los Angeles, 194 U. S. 112, 24 Sup. Ct. 586, 48 L. Ed. 896; Riverside Co. v. Riverside (C. C.) 118 Fed. 736; Railroad v. Memphis, 96 Fed. 113, 37 C. C. A. 410 (by the Circuit Court of Appeals, Sixth Circuit, opinion by Judge Taft); Vicksburg v. Vicksburg Waterworks Co., 202 U. S. 453, 26 Sup. Ct. 660, 50 L. Ed. 1102.

It would be a strange as well as curious proposition that if there is a contract under the ordinance of 1866 that it cannot be impaired by law in the form of an ordinance, but that it can be ridden down by a resolution by insisting that a resolution is not a law. All agree that, when the statute requires an ordinance, a resolution will not do, and that only is what many of the cases cited hold. There is no doubt about that. And when an ordinance is required, and the ordinance is enacted, such ordinance cannot be amended or repealed by a resolution. There is no doubt about that. Cascaden v. Waterloo, 106 Iowa, 673, 77 N. W. 333; Railroad v. Chicago, 174 I11. 439, 51 N. E. 596; People v. Mount, 186 Ill. 560, 58 N. E. 360. But the answer to all this is that the ordinance of December 10, 1866, and the amendment thereto need only have been a resolution, and is treated as a resolution. And that though in the form of an ordinance and even invalid as such, it will be upheld as a resolution. A resolution was all that was necessary, as held by the Iowa Supreme Court in the cases already cited.

Finally it is urged by counsel for the city that the case can be decided under the Iowa Constitution, and therefore there is no federal question. That is the rule as to taking a writ of error to the Supreme Court; but it is not the test as to jurisdiction of this court. The contention of the city is because of article 1, section 21 of the Iowa Constitution: “No law impairing the obligation of a contract shall ever be passed," and those other provisions much like recitals to be found in the fourteenth amendment. Thirty-two of the states have a similar provision, and yet time and again from those states have cases arisen and been carried through the Supreme Court without a diversity of citizenship, on federal questions from states, wherein were involved the contract clause, and of taking property without due process of law. It must never be forgotten that the Constitution of the United States according to its own recitals in article 6 is as follows:

“This Constitution and the laws of the United States which shall be made in pursuance thereof

sball be the supreme law of the land." And when it is not so, this government will be at an end, and we will again have a confederation. In most cases wherein the United States circuit courts take jurisdiction such courts and the state courts have concurrent jurisdiction. But if the contention of defendant's counsel is correct, then in 32 states of this Union United States courts

« iepriekšējāTurpināt »