Bras v. McConnell

Waterman, J. Plaintiff, Bras, and the Burlington, Cedar Rapids & Northern Railroad Company are owners of property in Wapello township, Louisa county, in this state. In pursuance of certain proceedings had, the tax in question was levied to aid in the building of the Muscatine North & South Railroad. Plaintiff' brought'this action to restrain the collection of the tax, alleging various grounds in suport of the relief asked. The Burlington, Cedar Rapids & Northern Railroad Company intervened in the action, and joined with plaintiff in asking to have the tax levy annulled. 1 I. Among other grounds of relief, it is set up that in holding the election there was a failure in several particulars to comply with the requirements of chapter 33, Acts Twenty-fourth General Assembly, popularly known as the “Australian Ballot Law.” In Pritchard v. Magoun, 109 Iowa, 364, decided since the disposi- ' tion of the case at bar by the trial court, it was held that [404] ■the act referred to does not apply to special elections held for the purpose of voting taxes. [404] II. The petition for the election to vote this tax and the notice of such election each contained the following condition: “Nor shall any of said money be drawn from the county treasury until there is exhibited to and filed with the trustees of Wapello township a valid contract between the Muscatine North & South Railroad and the Iowa Central Railway Company, whereby the road proposed to be constructed shall, when built, be operated in connection and solely .with the said Iowa Central Railway, as a part of its railway system, for at least twenty-five years, and in active and competitive competition with the Chicago, Rock Island & Pacific and the Burlington, Cedar Rapids & Northern Railways; trains to be run thereon on all days except Sunday.” This provision gives rise to the first serious contention in this court. Appellants say: “(1) Such proposition is void, as being against public policy. (2) The tax is invalid, as being voted upon a stipulation which is in contravention of the statutes of Iowa. (3) It creates a monopoly for twenty-five years in favor of the Iowa Central Railway of all the business of the other named railroad, and is, therefore, in restraint of commerce and trade. (4) It is beyond the power of the Muscatine North & South Railway Company to make or file a valid contract, such as is contemplated in the above clause of the petition and notice of election. (5) A railway corporation cannot thus alien or lease its franchise, or the property necessarily needed to perform its obligations to the public, without legislative sanction therefor. (6) It was beyond the power of the people of such township to vote a tax upon such a condition.” Unquestionably, at common law, connecting carriers were at liberty to make agreements as to through trafile. Such a carrier was not obliged to carry except on its own line, but it might contract for shipments beyond'. Lawson, Carriers, 343, and cases cited. When it does con [405] tract for shipments beyond its own line, it may, in the absence of statutory regulations to the contrary, determine what agencies it will employ. Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co., 110 U. S. 667 (4 Sup. Ct. Rep. 185, 28 L. Ed. 291). The question is one largely of good faith on the carrier’s part and the demands of public service. Stewart v. Transportation Co., 17 Minn. 372 (Gil. 348). Now, not only is there nothing in our statute that wholly cuts off this right, but, as we construe it, Code, section 2066, expressly confirms it. That section is in part in these words: “Any railway corporation may sell or lease its property and franchises to, or make joint running arrangements not in conflict with law, with any corporation owning or operating any connecting railway,” etc. “Joint running arrangements” must méan mutual traffic agreements. While under such' agreement, arbitrary rates cannot be fixed which are discriminatory in their nature, yet, subject to this qualification, the validity of such joint arrangements, when made bona fide, has been recognized by this court. Blair v. Railway Co., 109 Iowa, 369. Enough appears in this record to make it clear that the Muscatine North & South Railroad is a short line lying wholly within two counties of this state. It could not compete for business with either of the trunk lines running through Louisa county, nor could it render any service of much value to shippers along its line without availing itself of the facilities that one or more of them offered. Manifestly shippers along the contemplated road must use one of the trunk lines also to get their produce to a general market: It was therefore to their interest to have such arrangements entered into as would, in effect, make this short line a part of a greater system. This,is what we understand was called for by the condition prescribed. No shipper is prevented or obstructed in sending his freight over any other than the Iowa Central Line. It seems to us the interests of the public demanded such an arrangement as is here contemplated. [406] 4 III. But there is still another consideration of weight against the contention of appellants. Whether such an agreement as is here contemplated would be in good faith, and reasonably calculated to serve public interests, is a question of fact, of which we have no evidence in the record. In Stewart v. Transportation Co., supra, the contract before the court was one for through transportation between a railway company and a connecting line of steamers. One clause of the agreement required the railway company to pay a fixed sum to the steamer company on all passengers and freight carried over its line, and destined to points reached by the steamer company, whether they were transported by the latter or not. The court held that it could not, as a matter of law, say that such an agreoment was void, and reversed a judgment rendered in plaintiff’s favor on the pleadings. We are ashed in the present case to say that no valid contract such as is outlined in the petition and notice can be made. This we cannot do-. 5 IV. The form of the ballot is the matter of which comjiain-t is next (made. Some of the questions thus raised are mentioned, but not argued. In so far as these matters are not disposed of by the case of Pritchard v. Magoun, supra, we deem it sufficient to say they are without merit. In oral argument it was insisted that matter was printed on the ballot which should not have been there, and which was calculated to influence the result of the election. The printing of surplusage on the ballot will not necesarily invalidate the election. Cattel v. Lowry, 45 Iowa, 478. It will have that effect only when the voter may have been misled thereby. Brown v. Carl, 111 Iowa, 608. The matter complained of here was the following statement, which appeared on the face of the ballots: “Shall the following public measure be adopted, viz.: Shall the Muscatine North & South Bailroad Company, incorporated under the laws of Iowa, be aided in the construction of a line of [407] standard guage railroad from the city of Muscatine, in Muscatine county, Iowa, by way of Wapello, in Wapello township, in said Louisa county, Iowa, to some point of intersection with the Iowa Central Railroad in Louisa county, Iowa, by a tax of three (3) per cent, upon the assessed value of the taxable property of the township of Wapello in said county and state (assessment of 1897), upon the condition named in the petition therefor and notice of election.” It is apparent that this statement contains but the terms of the proposition upon which the vote was to be had, and that all the conditions are referred to. It is impossible to discern how anything which thus appeared could have influenced the vote more one way than the other. 6 But the matter most strenuously insisted upon by appellants in this connection is the form of expression submitted to the voter. The tickets were printed upon a single slip of paper, as follows: For Taxation YES Against Taxation NO The voter was called upon to put a cross in the square opposite the word “Yes” or “No,” according as he might, wish to favor or oppose the tax. The contention now made is that a vote “No” as the ticket reads would be a vote for taxation, because it would negative the idea that the voter was opposed thereto. Therefore, it is said, no ticket against the tax was given the voters. This is a technical construction. To us it seems manifest the intention was to have voters for the tax say “Yes,” and those opposed say “No.” We do not see how it could have been otherwise understood. We may say further, the notice of election stated that the tickets for the tax would have printed upon them the words “For Taxation,” and those opposed the words-, “Against Taxation.” As a considerable number of votes were cast [408] against tbe tax, it is apparent tbe opponents of tbe measure found no difficulty in making tbemselves understood. Tbis action was not brought until some time after tbe election was beld, and after tbe ballots bad been destroyed. Only by adopting tbe strained construction of appellants, is it possible to find any basis for tbe tbougbt that tbe votes cast and intended to be against tbe tax were not properly counted. After a due consideration of all tbe points made, we reach tbe conclusion that tbe judgment of tbe district court is correct, and it is therefore akkirmed.