Jensvold v. Chicago Great Western R. Co. , 236 Iowa 708 ( 1945 )

I concur in the result but I wish to express my views upon the point which defendant feels should be decided. Defendant argues that since it was incumbent upon plaintiff to prove a valid ordinance, then this included the burden of proving that the ordinance was approved by the commerce commission. Plaintiff feels that the ordinance is presumptively valid and defendant had the burden of proving the lack of approval by the commerce commission.

Upon this issue I would hold with defendant for reasons presently set forth, but I agree with the majority that under the record in this case defendant, without objecting to the ordinance, assumed the burden of proving the lack of approval of the ordinance, and failed in establishing its assumed burden.

The record upon the former appeal shows that the defendant objected to the introduction of the ordinance upon the ground that it was not shown that it had been approved by the commerce commission. The objection was overruled but when the verdict was directed for the defendant the latter could not appeal from this adverse ruling, though defendant could have asserted the ordinance inadmissible as ground for affirmance. Upon the appeal in that case we did not pass upon the correctness of the ruling and the admissibility of the ordinance could have again been challenged upon the new trial we granted to plaintiff. But no objection was made upon the new trial.

In Meier v. Chicago, R.I. P.R. Co., 224 Iowa 295, 307,275 N.W. 139, 146, we stated:

"But one other error assigned needs attention, and that is that the court erred in the admission of certain ordinances, among them one regulating the speed at which trains were permitted to operate within the corporate limits of Davenport. We do not take the time to go into detail with reference to this objection, the chief point of which seems to be that these ordinances did not have the approval of the railroad commission. If we have not mistaken the record, defendant seems to regard its objection to that effect as sufficient to require the trial court to reject this testimony, unless and until the plaintiff assumed and met the burden of proving that every step requisite to the enactment of a valid ordinance had been followed. Without pursuing the legal principles underlying this controversy, the writer of this opinion is of the belief that if there is anything wrong with these ordinances, either in substance or in the method of their adoption, it was up to the defendant to point out wherein."

But the holding in the Meier case was placed upon the ground that the evidence established the fact that plaintiff's decedent was guilty of contributory negligence and I feel the foregoing statement was dictum to which the author of the opinion did not even wish to commit the other members of the court. I feel that the plaintiff, as the one who relies upon the ordinance, had the burden of proving the required approval.

Section 5973, Code of 1939, provides:

"Cities and towns, subject to the approval of the Iowa state commerce commission, shall have power to regulate the speed of trains and locomotives on railways running over the streets or through the limits of the city or town."

Municipalities are legal entities for local governmental purposes and they can exercise only such authority as is conferred by express or implied provisions of law. Van Eaton v. Town of Sidney, 211 Iowa 986, 231 N.W. 475, 71 A.L.R. 820. Here the authority to enact a speed-regulating ordinance is express but it is conditional. The ordinance must be approved by the commerce commission or it is of no validity. The proof of the power to enact the ordinance was a part of plaintiff's proof of a valid ordinance. The rule is thus stated in 43 C.J. 200, section 199:

"Proof of Authority; Notice of Limitation. The existence of the power or authority of a municipal corporation to act cannot be assumed, but must be made to appear."

Prior to the enactment of section 5973 by the Thirty-ninth General Assembly in 1921 the cities and towns had unlimited authority to regulate the speed of trains within the city or town limits. Section 5973 constituted a legislative limitation on the power to so regulate the speed of a train by ordinance. It was incumbent upon plaintiff to prove that the ordinance he relied upon was within the limited grant of power. The rule is thus stated in 43 C.J. 200, 203, section 199:

"Notice of limitation. All persons are presumed to know the extent of the powers of a municipal corporation, and they act at their peril, and anyone claiming the benefit of a municipality'sact has the burden of showing that it acted within the scope ofits authority." (Italics supplied.)

Section 5973, insofar as it limits the ordinance-making power of a city or town, is not unlike the authority granted to cities to pass franchise ordinances to electric utilities. See chapter 304, Code of 1939. The cities and towns are given power to adopt franchise ordinances (section 5904) but the ordinance is of no validity unless a majority of the electors vote in favor of it (section 5905). Certainly one claiming benefits under a franchise ordinance would have the burden of proving not only the ordinance adopted by the municipal officers but its approval by the majority of the electors. The Montana court so observed in State ex rel. Billings v. Billings Gas Co., 55 Mont. 102, 109,173 P. 799, 800. There the city sought the benefit of a rate contained in a franchise ordinance. It appealed from an adverse judgment and the opinion states:

"This case was submitted to the trial court upon an agreed statement of facts, which fails to disclose the term of years for which the franchise was granted, and likewise fails to show that the application for the franchise was first approved by a vote of the qualified electors. For either or both of these reasons the judgment should be affirmed * * *."

I can see no difference between ordinance-making power that is limited to approval by the majority electors and ordinance-making power that is limited to approval by the commerce commission. The approval must be established by the party seeking the benefit of a valid ordinance. There is authority that one who relies upon an ordinance must prove its publication. See Bartley v. Chicago E.I. Ry. Co., 216 Ind. 512, 24 N.E.2d 405, and the same case in220 Ind. 354, 41 N.E.2d 805. See, also, 20 Am. Jur. 842, section 993. The rule announced in 9 Blashfield's Cyclopedia of Automobile Law and Practice, Permanent Ed., section 6212 is:

"Ordinances, as well as other regulations governing the equipment of vehicles operating upon the street or highway, or prescribing the duties of automobile or street car drivers or engineers of locomotives, are admissible in evidence if there is any evidence making them relevant or material to the issues, andif their validity and effectiveness are established." (Italics supplied.)

Another case somewhat in point is Martin v. Yazoo M.R. Co., La. App., 181 So. 571, 577, where the state statute provided all ordinances had to be approved by the mayor. An ordinance limiting the speed of trains to six miles an hour was offered in evidence but rejected because, as the opinion states:

"The document offered was and is inoperative as a city ordinance because of the mayor's failure to signify his approval thereof by signing it."

I concur in the result reached in the majority opinion because the record in this case clearly shows that the ordinance was not objected to and the case was tried on the theory that defendant had the burden of showing the lack of approval of the ordinance. Since the defendant, without objection, assumed this burden, it cannot for the first time in this court claim it should be borne by plaintiff.

I am authorized to state that SMITH and WENNERSTRUM, JJ., join in this special concurrence.