Cedar Rapids & Marion City Railway Co. v. Cummins

Bishop, J.

The motion by defendants is in the nature of a special demurrer to the petition. It *was so treated in the court below and may be so considered here. The question presented has relation solely to the character of the plaintiff company as disclosed by its petition, and the power of the executive council to. make assessments of its property for the purposes of taxation. The contention of plaintiff is that it is a street railway; that it acquired the right to construct its line from the city of Cedar Rapids to the city of Marion by virtue of the act of the Eighteenth General Assembly, page 28, chapter 32, now section 2026 of the Code, and that by the construction and operation of such line it did not lose its character as a street railway. The statute invoked reads as follows: “ Any corporation *434 organized under the laws of the State to operate a street railway in any city or town may, for the purpose of extending its railway beyond the limits thereof, locate, build and operate, by animal or other power, its road over and along any portion of the public road which is one hundred feet or more wide,” etc. Accordingly, the conclusion is drawn and insisted upon that thereafter as before assessments against its property were authorized by local assessors, only, and in the manner incident to the assessment of property of individuals, and in respect attention is called to our holding in Railway v. Cedar Rapids, 106 Iowa, 476. In that case — the plaintiff there being the plaintiff here — it was made to appear that an attempt had been made by the executive council of the State to assess the railway properties here in question, and the action was brought upon the theory, as in the instant case, that such properties constituted lines of street railway only, and hence were not subject to assessment by the executive council. The contention of plaintiff there made was upheld, and it was said: “ The fact that the line between Cedar Rapids and Marion was laid and operated along .the highway, as authorized by said act [of the Eighteenth General Assembly] relating exclusively to street railways, seems to us conclusive that the plaintiff is a street railway corporation, and not a railway corporation within the meaning of section 1317 [relating to assessment of railway properties by the executive council] of the Code of 1873.” Our attention is also called to the provision of section 1343 of the present Code, being as follows: “ The lands, buildings, machinery, poles, wires,' overhead construction, tracks, cables, conduits and fixtures belonging to individuals or corporations operating railways by cable or electricity, shall be listed and assessed in the assessment district where the same is situated.” It is conceded by the Attorney General that, if this were all, the ruling of the trial court was correct, and should be sustained. But it is pointed out by him that the statute law governing *435 the subject-matter underwent a change by virtue of the act of the Twenty-ninth General Assembly, page 49, chapter 81, now appearing as sections 2033'a et seq., Supplement to the Code; that by said sections the character of interurban railways is fixed, and the rights and obligations thereof defined; and it is his contention that the instant case is to be ruled by the provisibns .of such act. The provisions are as follows:

Section 2033a. Interurban railway defined. Any railway operated upon the streets of a city or town by electric or other power than steam, which extends beyond the corporate limits of such city or town to another city, town or village, or any railway operated by electric or other power than steam, extending from one city, town or village to another city, town or village, shall be known as an interurban railway, and shall be a work of internal improvement.

Section 2033b. What statutes apply. The words railway, railway company, railway corporation, railroad, railroad company, and railroad corporation, as used in the Code and Acts of the General Assembly, now in force or hereafter enacted, are hereby declared to apply to and include all interurban railways, and all companies or corporations constructing, owning or operating such interurban street railways, and all provisions of the Code and Acts of the General Assembly, now in force or hereafter enacted, affecting railways, railway companies, railway corporations, railroads, railroad companies and railroad corporations, are hereby declared to affect and apply in full force and effect to alb interurban railways, and to all interurban- railway companies or railway corporations constructing, owning or operating such interurban railways.

Accordingly the record presents two questions of vital importance: Is the railway system owned and operated by the plaintiff company, an interurban railway within the meaning of the statute provisions last above quoted? And, if so, does such railway come within the operation of section 1334 of the Code Supplement, providing that “ on the second Monday in July in each year the executive council *436 shall assess all of the property of each railway corporation in the State,” etc. ? We are of opinion that both questions must be answered in the affirmative.

1. Interurban FÍNmfYsStat-E strued. First. Accepting the facts to be as pleaded by plaintiff, and giving to the language of section 2033a its plainest meaning, and stopping there, it seems to us that argument is foreclosed. There is no room for debate. But counsel for appellee invoke the provisions of section 2033c, Code Supplement, and insist that for the purpose of this case the same must be accepted as giving character to and fixing the status of that portion at least of the railway system included within city or town limits. Section 2033c reads as follows: “Any interurban railway shall, within the corporate limits of any city or town, or of any city acting under special charter, upon such streets as it shall use for transporting passengers, mail, baggage, and such parcels, packages, and freight as it may carry in its passenger or combination baggage cars only, be deemed a street railway, and be subject to the laws governing street railways.” We cannot admit of soundness in the argument. Section 2033c must be read in connection with the preceding sections. Section 2033a defines an interurban railway, and, as we have seen, the railway in question comes within the definition given. Such definition is recognized by section 2033c, and must be accepted as confirmatory of'the intention to classify all railways'coming within the definition found in section 2033a as interurban railways; otherwise, and accepting the argument for appellee as sound, in the instant case we would have to deal with an interurban railway as to that portion of the line extending through Marion township, and distinctively a street railway as to those portions of the line being within the limits of the cities and towns named. We cannot think any such result was intended. The Legislature was dealing with lines of interurban railway, and, indeed, the definition found in the statute accords with the common understanding. Both agree that an inter *437 urban line is one extending from witbin the limits of one-city or town to and'within the limits of another city or town. And it is not conceivable that it was the purpose of section 2033c to provide that an interurban line is not an interurban line, save only from city or town-limit to city or town limit. To say otherwise, would not only involve a contradiction- of terms, but it would lead to a most absurd result, and neither of such is to be considered as within the intention of the Legisláture. As we read the statute, it means that as to those portions of its line being within city or town limits a corporation operating an interurban railway shall, in respect of the operation of its line, be held to the rights and obligations of a street railway only. The character of the line as an interurban railway is not changed,_ but it is to be “ subject to the laws governing street railways” The statute simply recognizes the necessary existence of differences in the matter of regulation between urban and suburban districts; and this by general law, or, in the case of the former, by municipal ordinance.

2. Assessment of SintSoirbak railways. In respect of the second question, the reason for our conclusion can be stated in few words. By the act of the Twenty-ninth General Assembly, amendatory of section 2026 of the Code, interurban street railways are to be included within the meaning of all provjg^ons 0£ Q0¿e aild acts of the Legislature having relation to or affecting railways or railroads. And the provision of section 1334‘of the Code is that “ all railways ” shall be assessed by the executive council.

3. Statutes: repeal by implication. It is true that statutes in apparent conflict with each other are to be reconciled so that both may stand where possible. It is also true that repeals by implication are not to be favored. But these rules of construction, although well established, cannot be made applicable to the situation with which we are confronted. It may be granted that there is no express repeal of section 1334 of the Code, providing for assessments *438 by local assessors. But au assessment by two distinct officers or boards, was surely not intended, so tbat it is not possible tbat local assessors may act, and tbat tbe executive council may also assess “ all railroads witbin tbe State. ” Hence we must be governed by tbe doctrine tbat of two acts necessarily in conflict witb eacb other tbe latter in point of time of enactment must be accepted as controlling. Tbe case does not present, as counsel for appellee seems to tbink, a new system of taxation. Tbe provision is simply that a system established and in force shall be held to apply to all properties coming witbin tbe enlarged definition of “ railways.” Tbe case of McLeod v. Railway, 125 Iowa, 270, may-be cited as affording an illustration of our view of tbe effect of tbe act of tbe Twenty-ninth General Assembly.

We conclude tbat the district court was in error in overruling tbe motion of defendants, and accordingly its action is reversed.