Mullarky v. Town of Cedar Falls

Lows, J.— i. Mmricipoba-ok' bridges, There is no material difference between parties as regards the facts in this case. The controversy turns upon certain propositions of law, bearing upon and growing out of the corporate powers of the town of Cedar Falls. The town was laid off on both sides of Cedar river, and the streets upon either side correspond. Before it became incorporated as a town, a man by the name of McClure had obtained the right from the county judge to erect a toll-bridge over the river, within the limits of the town on one of the streets thereof. This right or franchise, when the town became incorporated, was purchased of McClure, and a bridge built under an authority given by a vote of its citizens. It is first objected, that the town, as a municipal corporation, could not legitimately build such a bridge. But when we look into the powers which its act of incorporation, under the laws of the State, confers upon [24] the town, its control over the streets and its known duty to improve the same, so as to afford an easy and safe transit to all its parts, we do not feel at liberty to doubt the existence of the power, and its proper exercise in this case. The bridge in its construction cost some $12,000 or $15,000. To meet this expense the town issued its warrants or notes in denomination of one, three, and five dollars. Its power to do so are denied, but the object itself being legitimate, it becomes a. necessary means to an end, and to do so was not an undue exercise of authority. But it is claimed by the defense that these notes were issued in the form of bank bills, and were intended to circulate as money. Such is not our opinion, nor is this a material- question now to discuss. The town authorities very soon retired this description of paper, issued its bonds in lieu thereof, as evidence of the debt, in sums of one hundred dollars each, running six years. Thus far we are inclined to think there was no infringement of its corporate powers. But to secure the payment of these bonds in the hands of any and all holders, the town executed a deed of trust on the bridge, to three trustees, pledging the same and its tolls for that purpose. oftTtateu bridges, This was done in pursuance of an ordinance passed by the town council, authorizing the same. There was an ordinanoe, previous to this, fixing and imposing tolls for crossing the bridge. The deed of trust contained stipulations, by which the trustees were to collect those tolls, and apply them, after defraying expenses, to the payment of said certificate of indebtedness and the interest due thereon, and if final default be made, that the trustees should proceed to sell the bridge in the manner prescribed by the terms of the deed. The competency of the town to pass such an ordinance and to execute a deed with such stipulations and conditions, may well be questioned. [25] There is a marked difference between the building of a bridge as a necessary improvement of a street, and dedicating it to the public as a common highway or easement, and the erection of a toll bridge on the same street for the purposes of pecuniary profit. The one is legitimate, the other outside of the corporate powers. Not so distinctly, perhaps, as the establishment of a foundery, or the erection of a mill, aiid taking toll for grinding, yet somewhat similar in principle; and embarking in a business which does not fall within the necessary objects of a municipal corporation, and which had better be left to private enterprise. Now the deed of trust, in the case at bar, violates this principle, perhaps in this particular case more in form than in substance, when the debt created in its construction was paid. Still it has the appearance of a business operation, and it is but the part of wisdom to confine the town, not only to proper municipal objects, but to the employment of lawful means in effectuating these objects. This bridge was built by the town for the benefit of its inhabitants ; it filled a hiatus in one of the streets, caused by Cedar river, and became thereby an integral part of the street itself, an easement that belongs to the public, of the management and control of which the town could not legitimately divest itself. Yet, by the terms of this deed of trust, three trustees were appointed to take exclusive charge of the same, and to collect tolls for the using thereof for a specific period, and then, in a given contingency, to sell the same with its franchise as a toll-bridge, thereby not only hazarding the title thereto, but liable to lose all jurisdiction and control over it as an important part of one of its streets. This is the exercise of too doubtful' a power to be sanctioned by us, especially when we see a very simple, plain course open to the parties, which, if- pursued, will protect the rights of all, violate no principles, reach [26] the ends of justice, and establish no precedent that will prove mischievous hereafter. We refer to a remedy upon the bonds themselves, which we hold to be valid and available to the holders. A judgment upon them may be satisfied out of any corporate property not exempt from execution, which the town might have. If none should be found, the corporate authorities would doubtless take measures to meet these obligations by the assessment and collection of the requisite .amount of tax for that purpose. Believing, as we do, that the terms and conditions of the deed of trust cannot regularly and legally be enforced, we feel inclined to reverse the judgment below, and remand the case to be disposed of according to the method and suggestions herein stated. Affirmed, but modified.