Des Moines City Railway Co. v. City of Des Moines

Deemer, J.

The solution of the question presented depends upon the construction which shall be placd upon section 834 of the Code, which, so far as material, reads as follows:

All railway and street railway companies shall be required to make, reconstruct and repair all paving, graveling or macadamizing between the rails of their tracks, and one foot outside thereof, at their own expense, unless by ordinance of the city, or by virtue of the provisions or conditions of any ordinance of the city under which said railway or street railway may have been constructed or may have been maintained, it may be bound to pave, macadamize or gravel other portions of said street, and in that case said railway or street railway shall make, reconstruct and repair the paving, graveling or macadamizing of that part of the street specified by such ordinance; and such improvement, or -the reconstruction or repair thereof, shall be of the material and character ordered.by said city, and shall be done at the same time the remainder of said improvement is made,' reconstructed or repaired. . . . They shall keep the paving, graveling or macadamizing between said rails, and one foot outside thereof, or such other part as they are liable to construct or maintain, up to grade and in good repair, using for such purpose the same material as used for the original paving, graveling or macadamizing, or such other material as the council may order. . .

This statute as it now reads was framed by the Code Commission as a codification of the law theretofore existing as found in McClain’s Annotated Code of Iowa, 1888, sections 725 and 829, and the Acts of the Twenty-Third General Assembly, chapter 9, section 1, and of the Twenty-Fifth General Assembly, chapter 7, section 10. On the general subject of street improvements, etc., and of the laws then existing with .reference thereto, the Code Commission said:

The present law as to construction of street improvements and sewers is in the greatest confusion. The attempt is made in this chapter to reduce the whole legislation on the subject to a system, preserving the beneficial features of all the statutes (including in instances provisions found in statutes which relate at present only to cities under special charter) and to make the procedure as to the street improvements and sewers harmonize as far as practicable. The powers are made uniform in all cities of five thousand. . . . McClain’s Code, sections 817, 853,, are omitted as covered by these general provisions.

In the general report of that Commission we find the following expression as to its purposes, aims, and accomplishments :

In the exercise of the duty of rewriting the law and improving its phraseology, the commission has made many verbal changes, but has done so with great care in order that the meaning of the statutes should not be thereby materially changed. The language of the act as above quoted indicates, however, that some alterations in the law for the purpose of securing completeness, and to improve, systemize, and harmonize it and make it clear and intelligible, were contemplated as within the scope of the duties of the Commission, and it has therefore recommended some changes, having in view, however, the unification and perfection of the system of the written law as it now is, rather than the enlargement of it or its change in material matters. . . . Wherever the Code as reported does not exactly follow the present statutory language the new words are underscored,or if a whole section has been rewritten it is all underscored. The underscoring therefore does not necessarily indicate any new law, but if provisions are new, they are necessarily underscored. ... It must be distinctly understood that a change of language does not necessarily indicate any intention to change the meaning of the law. The Commission is authorized to rewrite the sections of the Code and statutes for the purpose of improving the expression of the law, and it has faithfully done so, omitting much that is superfluous and improving the statement and arrangement of the written law where practicable. In some chapters the transposition of words, sentences and sections has been so general that substantially entire chapters are underscored without being in any sense new, for instance in the chapters relating to cities and towns, state institutions, and the public schools.

With this in mind, then, it becomes important to go to the law as it existed at the time the act under consideration was framed. The Twentieth General Assembly passed an act known as chapter 20, containing a section reading in part as follows:

All railway companies and street railway companies in cities of the first class as provided in section one of this act, shall be required to pave, or repave between rails and one foot outside of their rails, at their own expense and cost. Whenever any street, highway, avenue or alley shall be ordered paved or repaved by the council of any such city, such paving or repaving between and outside the rails shall be done at the same time and shall be of the same material and character as the paving or repaving of the street, highway, avenue or alley upon which said railway track is located, or of §uch other material as said council may order, and when said paving or repaving is done said companies shall lay in the best approved manner the strap or flat rail, such railway companies shall keep that portion of the streets, highways, avenues or alleys between and one foot outside of their rails, up to grade and in good repair, using for such purpose the same material with which the street, highway, avenue or alley is paved upon which the track is laid, or such other material as said council may order.

It may be that this act did not have reference to the city of Des Moines; but it is part of the legislative history of the state, and from that standpoint should be considered.

The Twenty-Second General Assembly passed an act which, among other things,, contained the following provision :

Cities of the first class . . . shall have the further -and additional powers conferred by this act, . . . to wit, they shall have power to compel street railway companies, whenever any street is ordered paved, to pave and maintain in width three and one-half feet each way commencing at the center of the space betwéen the rails, and in case of failure to do so to provide by ordinance for such paving and maintenance, and for the manner of assessing against such companies the cost thereof . . . Acts Twenty-Second General Assembly, chapter 16.

By the acts of the Twebty-Bifth General Assembly, chapter 7, it was provided, in section 10 thereof, that:

Whenever any railroad or street railroad may have been constructed, and shall remain upon any street which the council may direct to be paved, at the time when such direction shall be given, and when the owner of such railroad or street railway may be bound to pave any portion of said street by law or ordinance of the city, or by virtue of the provisions or conditions of any ordinance of the city,' under which said railway or street railway may have been constructed or may be maintained, and if the owner shall fail or refuse to comply with the order of the council to do such paving, then the portion of the cost of paving such street assessable upon such railroad or street railway shall be ascertained, and shall be assessed against such street railway.

■Such was the condition of the written law of the state when the Code Commission came to rewrite the same. These acts passed the scrutiny of the courts, and it was held that they were constitutional and might be made to apply to street railway companies whose franchises were granted before the law took effect. See Sioux City R. R. Co. v. Sioux City, 78 Iowa, 367, and same case, 78 Iowa, 742.

Again in Marshalltown Light, P. & R. Co. v. Marshalltown, 127 Iowa, 637, which was decided long after section 834 of the Code was adopted, it was held that the provisions of a franchise ordinance exempting a street railway company or its assigns from any duty to pave, macadamize, or improve a street was not such a contract as could not be affected by subsequent legislation imposing a duty upon such company to pave between and outside the rails of its tracks. That decision quotes section 834 of the Code and holds that the city may require paving as provided in said section under a resolution passed after section 834 went into effect. It does not appear in that case when, if ever, an ordinance was passed requiring the street railway to bear its share of the expense of paving. It does appear, however, that the paving was authorized and provided for in the year 1902, which was long after the adoption of section 834 as it now appears in the Code. The franchise ordinance in that case expressly provided that the street railway company should not in any case be required to pave or macadamize any part of the street over which its railway had been constructed.

The result of the whole matter, then, is that, unless section 834 as it now appears changed the law theretofore existing, the trial court was in error in holding that the street railway company was not required to pave more than five feet in width of the street. Going now directly to this section, it will be observed that the primary duty of the street railway company is to pave between the rails of its track and one foot outside thereof. This it must do, unless, by ordinance of the city or in virtue of the provisions or conditions of the ordinance under which the street railway was constructed or is being maintained, it may be bound to pave other portions of said street. In that event the railway company shall pave that part of the street specified by such ordinance. They are also required to keep the paving between the rails and one foot outside thereof or such other parts as they are liable to construct or maintain in good repair, etc.

It is a cardinal rule for the construction of statutes that all parts thereof shall be given force and effect if •this can consistently be done.

Legislative history should always be regarded in arriving at a proper interpretation of any given statute. It is clear that down to the time of the adoption of section 834 it was competent for the city council to require the street railway company to make all paving between the rails of their track and one foot outside thereof at the time when the pavement was ordered notwithstanding the provisions of the franchise ordinance. So that, had the law as it then existed not been changed, there would be no doubt of the validity of the order which is challenged in this ease. At the time when the order in this particular case was made, there was, as we understand it, an ordinance requiring the street railway company to pave that part of the street then occupied by it not exceeding three and one-half feet on each side of the center line between the rails. This ordinance, it is true, was passed after the Code of 1891 went into effect, and it is contended that such ordinance is invalid because unauthorized by section 834 of the Code. Indeed, the broad contention is made that, as the original franchise ordinance enacted in 1866 required the railway to pave the space between its rails, this established its duty, and under the terms of the statute now under consideration relieved it from paving more than the amount required by the franchise ordinance, although the city thereafter passed an ordinance valid under the statutes then in existence, requiring the street railway company to pave a greater portion of the street. We can not believe that this is a proper construction of the statute. Certainly it was not the law prior to the adoption thereof. To arrive at such a conclusion it is necessary to read out of the statute the words “unless by ordinance of the city,” for, if the franchise ordinance specifies what portion of the street the street railway must pave, that ends the matter, under the construction which counsel for the railway company would have us put upon the law, no matter if it appears that thereafter in virtue of a valid law there was another ordinance requiring tbe railway company to pave more than it was required to do under the franchise ordinance. It seems to us that, to arrive at a proper reading of this statute, we should take into account the law as it then existed and so construe it as to give effect to all its terms. This may easily be done by reference to the ordinance in existence when the paving is ordered. If there be such an one which differs from the franchise ordinance, it of necessity supersedes the original franchise ordinance, and is the one under which, the street railway is then being maintained. If there was no other ordinance than the franchise ordinance, and this franchise ordinance fixed the amount to be paved, that would be controlling. Remembering that the council had power by ordinance to change the original franchise ordinance in this respect, it follows that the franchise ordinance is to that extent superseded and is not the one under which the street railway is being maintained. It may be said that this reads something into the statute which does not there appear; but we think not. The effect of it is to say that we look to the ordinance of the city in . force when the paving is ordered, or, if there be none, to the provisions of the ordinance under which the railway may have been constructed or is then being maintained. The obligation to pave must be found in one or the other, and that obligation is the one in existence when the pavement is ordered. If the franchise ordinance be superseded by another, then the railway company is being maintained under that ordinance and not under its original grant.

Claim is made that, to determine what ordinance is to govern, we must look to the conditions as they existed when section 834 of the Code was adopted; that is to say, that the date of the adoption of this section fixed the conditions, and that thereafter no ordinance could be passed with reference to the subject of the width of a street that a, street railway may be required to maintain. If this be the law, it is because of the incorporation of section 834 into the Code of 1897. We do not think that it was the intent of the Legislature to tie the hands of city councils by the adoption of this statute. And our conclusion is bottomed primarily upon the notion that we should look to the conditions existing when the improvement is ordered, and not the ordinance in force when this act went into effect. It is entirely too narrow a construction to say that the law has reference to an ordinance in existence when section 834 was passed. This would tie the hands of the council and limit its power to act in the future with reference to the subject matter. Surely this was not intended. It was not the law before the adoption of section 834, and there is nothing in the terms of the act which indicates that it had reference only to ordinances in existence when the section was passed. It does not say ordinance then in existence; and it manifestly has reference to ordinances at any time legally passed with reference to the subject. Moreover, the writer of this opinion is inclined to believe that it may properly be interpreted to mean that the street railway company must pave between the rails of their tracks and one foot outside thereof, unless there be something in the ordinance of the city, or, if there be none, in the franchise ordinance requiring them to pave more.

The words used in this connection are “unless it may be bound to pave other portions of said street.” The words “other portions of said street,” it seems to me, should be construed to mean, not something less which would be included in what was greater, but something more than the statute requires. This may perhaps be a little forced, but it is confirmed somewhat by the provision as to how much the railway company is required to keep in repair. It says “the part between the rails and one foot outside thereof or such other part (which means to my mind some different part) as they are liable to construct or maintain.” My opinion in this respect is not concurred in by all the other members of the court; but I think it is entitled to consideration. Certainly this is true as applied to the franchise ordinance.

Looking to the legislative history of this act; to the report of the Code Commission, to the language used, and remembering the fundamental canon of construction that all parts of it should be permitted to stand and be given effect, we are of opinion that the ordinance, passed by the city after the adoption of section 834 of the Code, requiring the company to be at the expense of the paving between the rails and one foot outside thereof, was a valid exercise of power, and that the city is not bound by conditions as they existed when section 834 went into effect, nor is it bound by the terms of the original franchise ordinance. Prior to the adoption of section 834, the city had the right to change the terms of the franchise ordinance with reference to the subject of paving, an,d we do not think that section 834 deprived it of the power to make changes thereafter. If such was the intent, it was most carefully concealed, and we feel sure in affirming that the Code Commission had no intent to change the law in the manner suggested by counsel for the street railway company. Certainly there was no thought on the part of any one that by the adoption of section 834 the duty of the street railway to pave was fixed by the terms of its original franchise ordinance, if perchance it should be found that in that ordinance the subject of paving was covered.

We do not believe that it was the intent to fix conditions with reference to any arbitrary date. The thought was to require the paving between the rails and one foot outside thereof unless the city having plenary power over the matter should require some other width, and as the writer believes some greater or other width.

From this it follows that the decree rendered by the trial court is wrong, and that it should be reversed.