Thurston v. Huston

Weaver, J. The defendant Cedar Rapids & Marion City Railway Company, as assignee of tire Thompson-Hous* ton Electric Company, operates a street railway system in Cedar Rapids under a privilege or franchise granted by an ordinance of said city. That part of the ordinance having reference to the' streets to be occupied by the railway tracks, and particularly applicable to the present controversy, provides that the company “may enter upon and construct, maintain, and operate a single or double track railway, with the necessary turn-outs and switches, upon such streets and highways in said city as may be hereafter designated by the said Thomson-Houston Electric Company, in the written acceptance of this ordinance, to be given as hereinafter provided, and upon such other streets and public places as said council may from time to time by resolution designate.” In accepting the terms of the ordinance, the railway company designated several different streets, not including Third avenue, hereinafter mentioned. A short time before the commencemnt of this suit, and several years after the installment of its system, the railway company applied to the city, council for leave to extend one of its lines along and upon Third avenue, and a resolution was passed or attempted to be passed by said council granting the request upon certain conditions. The plaintiff, a resident property owner on said”street, then instituted this suit to prevent the signing of said resolution by the mayor and recorder, to declare the same void, and to enjoin the use of said street by the railway company. The petition alleges, as grounds for the relief demanded, that no franchise has ever been granted to operate a railway on Third avenue; that the original ordinance was of no force or effect as the grant of a franchise, except, perhaps, to the streets named in the company’s acceptance; and that the resolution in controversy was not passed by the necessary vote, as provided by statute. Many other matters of more or less immaterial character are pleaded, but not insisted upon in argument. Upon these allegations, a temporary injunction — 159 — was granted as prayed. Answering the petition, defendants admit the passage of the resolution by the city council granting the railway company leave to lay a track on Third avenue, and that plaintiff is the owner of lots fronting on said street, and specifically denies each and every other allegation upon which plaintiff’s claim for relief is founded. Further and affirmatively they allege the granting of the street railway franchise originally to the Thomson-Ilouston Electric Company, its acceptance by said company, the assignment thereof by the Thomson-Houston Electric Company to the defendant Cedar Kapids & Marion City Kailway Company, the action of the city council approving and affirming said assignment on certain conditions, and the acceptance of the said conditions by the defendant railway company. It further alleges that the franchise granted by the original ordinance is general in character, giving to the company the right to lay its tracks on any or all of the streets of said city as the growth of its population and increase of its business might from time to time demand, subject only to the proper supervision and control by the city through its council and mayor, and that, in pursuance of such privilege, the company applied to the city council for leave to lay its tracks upon Third avenue, and that said council, in the exercise of its proper discretion, granted said application. Having thus answered, defendants moved for a dissolution of the injunction, and, the motion being denied, they appeal. i. passage of resolution by ccuacii: vote, T. The first proposition in the opening argument by the appellee is that the resolution in controversy was not passed by a sufficient vote of the city council. The petition merely alleges, in general terms, “that a majority of ’ ° „ ,. , ’ ,. J J the city council did not vote for the passage. The answer alleges that the city council consists of ten aider-men and the mayor, and that, of these members, five aider-men and the m„ayox — a majority of said number — voted for the resolution. It is said by the appellee that, under the city charter, which provides that the “mayor shall be the presiding-officer of the city council and shall give the casting vote — 160 — when there is a tie” such officer has no right to a vote, save in a contingency thus provided for, and that without his vote the resolution did not pass by a majority of the entire council. Except for a statement in an affidavit by the mayor that but three members of the council voted against the resolution, there is nothing in the record to negative the existence of the condition authorizing the vote of that officer, but, taking all the several allegations together, it may, perhaps, stand as admitted that, omitting the mayor’s vote, the members of the council recorded themselves in favor of the resolution by a vote of five to three. The only question to be considered in this connection is whether a vote of a majority of the entire council is’ necessary to its passage. No authority is cited by the appellee in support of this contention. In the absence of any statutory or charter restriction, we think the rule is well established that a majority of a quorum is all that is required for the adoption or passage of any resolution or order properly arising for the action of a city council or oilier collective body exercising legislative, judicial, or administrative functions. Buell v. Buckingham, 16 Iowa, 284; (85 Am. Dec. 516); Atty. Gen. v. Shepard, 62 N. H. 383 (13 Am. St. Rep. 576); Heiskell v. Mayor, 65 Md. 125 (4 Atl. Rep. 116, 57 Am. Rep. 308); Rushville Co. v. Rushville, 121 Ind. 206 (23 N. E. Rep. 72, 6 L. R. A. 315, 16 Am. St. Rep. 388); Kingsbury v. Centre, 12 Metc. 99; State v. Jersey City, 27 N. J. Law, 493; Launtz v. People, 113 Ill. 137 (55 Am. Rep. 405). The very fact that the statute makes specific requirement of a majority of all the members for the passage of ordinances, and the adoption of orders and resolutions to enter into contracts or for the appropriation of money, is a clear indication of the legislative intent to leave all matters arising for the action of the council, and not thus enumerated, to be governed by the parliamentary rule generally recognized by the courts, as above indicated. Such, indeed, seems to be the holding already announced by this court in Strohm v. Iowa City, 47 Iowa, 42. It follows that the point made by the appellee against — 161 — tbe due passage of tbe resolution cannot be sustained. As the resolution received a majority of tbe quorum, it becomes unnecessary for us to consider or decide whether, under the special charter of tbe city of Cedar Rapids, or tbe general law of tbe state, tbe mayor can be regarded as a member of tbe council. 2. street railSoni c<?nítructa°n. II. Tbe next reason given why tbe relief asked should be granted (and tbe proposition most earnestly pressed in argument) is that tbe resolution permitting tbe laying of street railway track in Third avenue is a new franchise, and cannot be granted without first giving notice as directed in Code, sections 955, 956. If tbe premise be correct, and tbe right to operate a railway in Third avenue is a new franchise, then tbe conclusion stated by counsel cannot well be avoided. But is it in any proper sense of tbe word a new franchise, or.is the privilege to occupy this street implied and contemplated by tbe original grant? Without prolonging our opinion to set out tbe original ordinance in full, we will say that a careful reading of its provisions convinces us that tbe contract embodied in tbe grant by tbe city, and acceptance by tbe railway company, contemplated a system of street railways for tbe accommodation of tbe city generally; that so much of said system as was reasonably required for immediate needs should be constructed without delay; and that extensions of these lines into new neighborhoods and upon other streets, should be made from time to time in tbe future as .the growth of said city should demand, and tbe city council designate. This is fairly indicated by tbe fact that tbe original grant,, after making use of tbe language quoted by us in the opening statement, proceeds to designate only the general directions in which tbe initial lines shall be constructed, and fixes tbe number of miles of track which shall be regarded as tbe minimum of requirement. Tbe provision that tbe company shall, in its acceptance of tbe grant, designate tbe streets to be occupied by its tracks, has reference only to this minimum of mileage which was exacted as tbe price or condition of tbe — 162 — privilege granted. The future growth and expansion of the system was provided for in the clause, “and in such other streets and public places as said council may from time to time by resolution designate.” Unless this provision for the future was void for uncertainty, or as being in excess of the power vested in the city, then the resolution permitting the use of Third avenue by the railway company was a lawful exercise of the discretion vested in the city council, and the injunction should have been dissolved. We see no occasion to ° question the grant on the ground of uncertainty. If the construction of an ordinary railway is contemplated between two designated terminal stations, the route to be occupied may perhaps be designated with reasonable certainty in its charter, but a street railway system intended for the use and convenience of a growing city for a long period of years presents a different problem. Of necessity, it must be a growth — a development — and the direction or number of the lines or tracks which will be required in the future cannot be foretold with any precision. New streets will be opened, new additions to the city will be laid out, and other changes not now anticipated will take place. To meet these contingencies, the city council, in granting a charter for a comprehensive street railway system, must either in sweeping terms grant the right to occupy all streets now or hereafter opened, or it must adopt some such expedient as was made use of in this case, and provide for the extension of lines from time to time as the need therefor may arise, and the city council direct. .These provisions are not for the granting of new privileges or franchises, but for the reasonable regulation and control of the company in the use of the franchise originally granted. To adopt the other plan, and grant a franchise expressly allowing the company to enter upon and occupy any or all streets, without any power of veto or regulation by the city council, even if of any validity, would be a most unwise and impolitic abandonment of an important right. To say that it is not within the power of a city to grant a franchise in general terms, as was here attempted, and that every permis — 163 — sion fox tlie extension of the railway into another street or alley is a new franchise, 'requiring preliminary notice, and possible submission to the popular vote, as upon an original grant, is to hamper the progress and usefulness of a public utility by an unreasonable restriction, and tends to a multiplication of petty franchises, from which a confusion of claims, with resultant burdensome litigation, is sure to arise, to the detriment of public interests. There is nothing, therefore, which is unreasonable or against public policy in holding the city clothed with power to grant a franchise in the terms here employed, nor do we find anything in our statutes which forbids it. If, then, as we conclude, the consent of the council for the extension of the company’s track into Third avenue is not the granting of a npw franchise, but is simply an exercise of the reserved power to regulate the company’s use of the city’s streets under the original grant, then the provisions of Code, sections 955, 956, upon which appellee relies, are not applicable, and that part of his argument based upon said statute requires no further consideration. That statute, by its express terms, is made applicable only to the granting of an original franchise, or to a renewal or extension of the period for which a grant has been made, and not to mere extensions or enlargements of the facilities which the franchise holder employs in exercising the power originally granted. It is to be conceded that a franchise for a street railway may be confined to any one or more streets or neighborhoods of a city, and if the terms of the grant,’ when fairly construed, indicate that such restricted or localized privilege was intended, then, of course, any extension of such railway into other streets or districts is subject to all the conditions pertaining to the grant of a new or independent franchise. It is a matter of common observation, however, that, outside ■of the very large cities, street railway franchises confined to a few streets or districts of the municipal territory are very rare; and, while exclusive franchises, except for limited periods, are not allowable, there can be found very few investors — 164 — disposed to undertake the construction and operation of a street railway system in our small cities, if the right to expand its lines to accommodate the growth and expansion of the city is denied, or if each successive extension of its track into another street involves the procurement of a new and additional franchise. We feel quite certain that the practical construction which has been given the law by the cities of Iowa is in accordance Avith these views, and that to hold otherwise would result in disastrous confusion. 3. s trebt railSvcpnvfiege: extension of. It is further urged that while, by the terms of the original ordinance, the rights of the railway company were made exclusive for a term of five years only, the construction of the law which we have approved results in giving the company an exclusive privilege for the eir(¿re peiq0d of twenty-five years. This does not follow — certainly not as a legal necessity. It may be that in a small city the company first in possession of a general franchise, and with a system already inaugurated, holds such a position of vantage that under all ordinary circumstances no competitor will care to enter into a competition, even if another franchise be granted; but competition is excluded or prevented by the operation of natural laws, and not by the terms of the statute or ordinance. While Ave hold that the defendant company has a right to enter upon all such streets as the council, in the reasonable exercise of its discretion, may designate, this is not necessarily inconsistent, with the existence of another street railway system in the 'same city, operating under another franchise embodying the same general terms and conditions. Turning, as the case does, so largely upon 'the construction of our oavu statutes, we think it unnecessary-to go into any extended review of the many authorities cited by counsel. We have examined all of them, and find none which is necessarily inconsistent with our conclusion. It follows that the judgment beloAV must be reversed, and the cause will be remanded, with directions to the trial court to sustain the motion for dissolution of the injunction. Costs of appeal will be taxed against the appellee. — Unversed.