Sioux City St. Railway Company v. Sioux City/Opinion of the Court
The supreme court of Iowa, in view of section 1090, held that the city of Sioux City, by granting the authority to construct and operate the railway on the condition of paving between the rails, did not limit its authority to make and enforce other regulations and requirements, as authorized by section 1090; that, although, by the contract, the company bound itself to pave between the rails, the city did not bind itself not to exercise the authority conferred upon it by section 1090 to impose other conditions upon the exercise of the franchise of the company, which, in the judgment of the city, might be required for the public good; and that the city was authorized to impose on the company the burden of the additional paving outside of the rails.

No question is raised as to the regularity or legality of the proceedings for assessment for the cost of paving outside of the track, except the question of the power of the city to impose the assessment, in view of the franchise granted to the company. The only contention is that, in view of the provision of section 11 of the ordinance of December 12, 1883, there was no power in the city to require the company to pave anywhere except between the rails. On the other hand, the defendants contend that section 11, while requiring the company to pave between the rails, does not provide that it shall be required to pave only between the rails. Reference is also made by the defendants to section 8 of the ordiance of December 12, 1883, which provides for the payment by the company, into the city treasury, of an annual license fee of $25 on each car used by it, 'in addition to the other taxes lawfully assessed and collected;' and it is contended that, as the legislature subsequently passed a general law requiring all street-railway companies to pay for the cost of paving one foot ontside of the rails, this tax or assessment was charged lawfully against the company. It is also contended that, no matter what the provisions of the ordinance were, it was within the power of the legislature to enact laws imposing an additional tax upon the company, and within the power of the city, acting under such a law, to make the charge upon the property of the company, and that, under section 6 of the act of March 15, 1884, the assessment and tax in question were made against the property of the company, and the city merely carried out the direction of the statute, and did not impose the additional burden by its own voluntary act. The company took its franchise subject to such legislation as the state might enact. This is plain from the provisions of section 1090 of the Code. The company took its charter subject to the provisions of that section. The general assembly deemed it necessary for the public good to require street railways to pay for the paving of one foot outside of the tracks, probably upon the view that it was right that they should be required to pave that part f t he street which they used almost exclusively. It was not in the power of the city, by any contract with the company, to deprive the legislature of the power of taxing the company. Railway Co. v. Philadelphia, 101 U.S. 528; Water-Works v. Schottler, 110 U.S. 347, 4 Sup. Ct. Rep. 48; 2 Mor. Priv. Corp. §§ 1061, 1062, 1066, 1085, 1905, 1097. Under section 1090 of the Iowa Code, the legislature had the power not only to repeal and amend the articles of incorporation of the company, but to impose any conditions upon the enjoyment of its franchise which the general assembly might deem necessary for the public good. The reservation of the power was a condition of the grant. The city council could make no arrangement with the company which would not be subject, under that section, to the superior power of the general assembly. The cases referred to by the plaintiff in error of City of Des. Moines v. Railway Co., 41 Iowa, 569, and City of Burlington v. Railway Co., 49 Iowa, 144, are not applicable to the present case, because in them there was not involved any question of the power of the state to impose additional burdens or conditions on the enjoyment of the franchise; and section 1090 of the Code was not in any manner involved or referred to in them. The questions raised in the present case relate solely to the subject of taxation, which is a matter under the authority of the state. Moreover, the city derived from the state alone its power to grant a license to the company. The right to operate the railway in the streets is a franchise obtained through power given to the city by the state, but the state reserved the power to regulate such franchise, and impose conditions upon it. It reserved the power to determin the question of the exemption of the company from taxation, and to prescribe what burdens should be imposed upon it for the public good, in the enjoyment of its franchise. Manifestly, such power of the state would exist, if the right to occupy the streets with tracks were granted to the company directly by an act of the legislature of the state, and the case is not changed by the fact that the franchise was granted by the city. There is nothing in the ordinance of the city council which takes away the power of the state and the city to impose additional taxes on the property of the company, or which indicates an intent that no further or different tax should be subsequently imposed on its property. Delaware R. R. Tax, 18 Wall. 206, 227; Railway Co. v. Philadelphia, 101 U.S. 528, 536; Bank v. Com., 10 Pa. St. 451. No question can arise as to the impairment of the obligation of a contract, when the company accepted all of its corporate powers subject to the reserved power of the state to modify its charter, and to impose additional burdens upon the enjoyment of its franchise. Under the act of March 15, 1884, it was made a condition of the enjoyment of its franchise by the company, that, when the city should determine that the streets should be paved, the company should bear a certain portion of the cost thereof; and any prior contract between the company and the city, in regard to paving, was subject to the provisions of section 1090 of the Code. There was nothing in the ordinance of December 12, 1883, which bound, or could bind, the city not to exercise its statutory authority to impose other conditions upon the exercise of the rights of the company. Our conclusion, therefore, is that there was no contract between the company and the state or the city, the obligation of which was impaired by the laving of the tax in question. Judgment affirmed. 

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