State v. Ottumwa Railway & Light Co. , 178 Iowa 961 ( 1916 )

Ladd, J.

i c*nmT.Tim t> . tt eiáíeVconstruetl0nI. A franchise was granted by the city of Ottumwa, in 1901, to the company to which defendant is successor, “to acquire, construct, maintain and operate by electric or other motive power acceptable to the city, other than steam power, upon and over streets, alleys, and the Market Street bridge, and such other bridge or bridges -as the council may in the future designate of the city of Ottumwa, a system of street railways to include Us present lines, for the transportation of passengers, baggage, mail, express packages, produce, freight, etc., over and upon all of said lines, for a period of 25 years. ’ ’ Nearly all the lines had been laid then, and were in operation. A track extended along Second Street from Forest Avenue in a southeasterly direction to its intersection with Market Street, a distance of something over two miles. A track connecting with the Second Street line, near the Chicago, Milwaukee & St. Paul Railway Company’s track, a trifle more than a mile east of Forest Avenue, was laid in 1906, along Main Street to Market Street, and a line previously constructed extended in an easterly direction to Vernon Street, a distance of about two and one-half miles. The Court Street line runs in a northerly, and the Jefferson Street line, in a northeasterly, direction from the Second Street line at Market Street. The Church Street line is operated from the same point, over the Market Street bridge along Church Street in a southwesterly direction'. From this line, the Ward Street line branches south, as also does the Sheridan Avenue line, from which the Wabash Avenue line branches. The Chester Street line extends westerly from the intersection of Church Street and Ward Avenue. The starting point for all cars is a loop formed by the Main and Second Street lines between Market Street and Green Street (Green being the next street east of Market), and tracks between these on Green, and double track on Market Street. There are 13.55 miles of track. For many years, cars departed from Market Street out on the several lines, and returned around the loop by going south on Market Street or east on Main Street, and on around to another trip. The several lines are connected only as stated. Until October 20, 1914, cars were operated both ways on Second Street and every other line of the city, except that on Main Street, but never regularly both ways on that street. In that month, defendant ceased running cars in an easterly direction on Second Street between Market Street and the Chicago, Milwaukee & St. Paul Railway crossing, a distance of one mile, and since then, has not operated cars on Main Street in a westerly direction between the points mentioned. The object of this action is “to require defendant to run its cars in each direction on Second Street and on Main Street in the city of Ottumwa, Iowa, at intervals not greater than 20 minutes, up to 10 o’clock P. M., and at least every 30 minutes from then on while the cars are being run. ’ ’ As all the lines are conceded to be operated under the franchise, it is unnecessary to set out the history of the development óf the enterprise. Prior to October 20, 1914, two cars started at the intersection of Market and Second Streets, went south on Market Street to Main Street, then along it west, past its junction with Second Street on to Forest Avenue, the end of the line, and returned over Second Street to the starting point. The schedule of these ears was 15 minutes each way. Another car, known as the loop or( shuttle car, was operated both ways on Second Street from Market Street to its junction with the Main Street track every 15 minutes. It will be observed that cars ran only one way on Main Street, and on Second Street, two cars easterly only, and the third, both ways. The change made October 20, 1914, was this: The loop or shuttle car, which had plied both ways, was taken off, and the two cars mentioned, with three cars theretofore operated on the east end of Main Street, between Market and Vernon Streets, were run westerly on Second Street to the end of the line on Forest Avenue, and back to the junction with the Main Street line, where they passed over to Main Street and on east to Vernon Street, and then back to Market Street, where they proceeded on Second Street as before, maldng a 10-minute schedule part of the day, and a 15-minute schedule during the remainder thereof. These cars, though operated both ways from the junction of the lines west to Forest Avenue, and from Market Street to Vernon Street, run one way only on Main and Second Streets between said junction of the lines and Market Street. Was this in violation of the portion of Section 9 of Ordinance No. 603, passed by the city council, ratified and approved by the people, and accepted by the defendant, and under which the street railway system is being operated ? In so far as matérial, that section reads:

‘ ‘ This franchise is granted, and the rights and privileges herein conferred are subject to the following conditions, and the cars of said company shall be run upon and along the tracks of said company in conformity with the following-rules, to wit: . . . Cars shall start from all proper starting points as early as 6 o’clock A. M., and run continuously as late as to .11, o’clock P. M., or until 12 P. M. if necessary. The council reserving the right to require the company to run until 12 P. M. at such times as it may designate by resolutions or ordinances. At all times during the day or night while ears are running, they shall, in each and every direction, run at intervals of not more than 20 minutes up ■to 10 o’clock P. M., after which, at least every 30 minutes in each and every direction, the last car to leave the central station on its outward trip as late as 11 o’clock P. M.”

With reference thereto, counsel for appellant argued that this means that “the cars should make the round trip in each direction in the city traversed by the street car system at intervals of not more than 20 minutes;” that wherever defendant “projected a line, or close parallel lines, there should be one round trip at least every 20 minutes in the direction of such line or close parallel line.” The argument seems to be that “each and every direction” has reference to geographical'directions, or the points of the compass; and if cars go out in one general direction, as in a northerly direction, and they or others return from the northerly part of the city, this should be construed as operating the cars as exacted by the ordinance, assuming the lines to be connected by a loop, and only a few blocks apart. They say that, at the time the franchise was granted, it must have been perfectly obvious to all parties connected therewith, “and to the public in voting the same, that, if any car went out upon that line, it would either have to come loach upon the same line, or remain out. In that case, there would have been no necessity for the use of the expression, ‘in each and every direction,’ since it could hardly have been assumed by anyone that the company would run a ear out to the end of its line and leave it there. ITence some other meaning must have been intended to be conveyed by the expression, ‘each and every direction,’ as the same occurs in the ordinance.”

Suppose the words be omitted, as proposed, might not the company comply with the terms of the franchise by operating only in one direction? Again, if there were a loop to another track, a round trip every 40 minutes would comply with the part of the ordinance quoted, without the clause proposed to be omitted; and, even if not omitted, under counsel’s argument this would be so, regardless of how far the lines were apart, if extending in the same general direction. As suggested,' the design of the ordinance granting the franchise was to establish a street car system by laying tracks “upon and over,streets, alleys and bridges;” and necessarily the projection of new lines or the extension of old lines depended on the growth and development of the localities, and somewhat on the topography of the city; but this does not necessarily mean that lines nearly parallel and with loops shall be constructed. The more natural inference would be that the methods then in vogue would be followed, and that these were in mind in granting and accepting the franchise. The lines were not then connected by loops, and none have since been so connected other than those in question, nor does it appear that any such connection is now in contemplation. Conditions existing at the time, and to which the franchise was to apply, are appropriate for consideration in interpreting its meaning. Moreover, the company operated cars in both directions on all its lines up to 1906, and thereafter on all except those on Main Street until October 20, 1914, and its own interpretation of the franchise for many years, acquiesced in by the public also, is entitled to consideration. Existing conditions and long usage are in harmony with the language of the portion of the franchise in question. Appellant’s argument seems to proceed on the assumption that the ordinance prescribed that each particular car shall be operated “in each and every direction.” Such is not the language or purport of the ordinance. For all that appears therein, a car may be run over every line in the city before returning, and then return to the starting point over a line other than that on which it started. The rules laid down are for the operation of ears, not any particular car, “upon and along the tracks of said company” — not one or two tracks, but all the tracks. This is exacted in conformity with the following rules: cars to start on said tracks (1) from, proper starting points, (2) as early as 6 o’clock A. M., and (3) run continuously (4) as late as 11 o’clock, and shall run (5) “in each and every direction,” (6) “at intervals of not more than 20 minutes up to 10 o’clock P. M.,” and (7) between then and 12 o’clock P. M., at least every 30 minutes.

No fair interpretation of this language can be made from it other than that cars are to be operated each way on the track at the intervals stated. The manifest object was to prescribe the minimum of service to be exacted in any schedule to be adopted by the company for the operation of the ears “upon and along the tracks” of the company. Possibly the words “each way” or “in each direction,” if inserted in the ordinance, would have been quite as, if not more, definite. But parties are not bound to make use of the most exact language. It is enough if that from whieh the meaning or intention of the parties can be ascertained is made' use of. If the words convey a definite meaning, whieh involves no absurdity, nor any contradiction in other parts of the instrument, then that meaning apparent on the face of the instrument should be accepted. If expressed in plain and unambiguous 'terms, whether general or limited, the parties are to be held to mean what they have plainly expressed, and not what the courts, in view of the evidence adduced, believe they should have agreed upon. Just how the ears of the. company might be run “in each and every direction” on its tracks — and by this is meant all its lines or tracks — without operating its cars in both directions, we are at a loss to understand. Possibly, in view of the topography of the city and the sparsity of settlement in some localities, it might have been preferable to allow cars to run out a part or all of the way on one track or line and return on another, without going both ways. If this shall prove true, appropriate changes may be effected in renewing the franchise at its termination. Ordinarily, a street car line extends in several directions, and those in Ottumwa furnish no exception. Indeed, in the original plat of what is now a part of Ottumwa, the streets are laid out parallel with the general direction of the Des Moines River and at right angles therewith, and subsequently, streets in addition were laid out with the points of the compass. Main and Second Streets extend in a northwesterly and southeasterly direction; Church Street, in a southwesterly direction over the Market Street bridge into the portion of Ottumwa south of the river. And from this line, the Ward Street and Sheridan Avenue lines extend due south. Court Street ears run northeast on Market Street, northwest on Fourth Street, northeast on Court Street three blocks, and then due north on the same street, then northeast to North Court Street, and, after some distance, on to the northwest. These conditions may have influenced those preparing the ordinance in inserting “and every,” in the portion regulating the operation of cars, and by being over particular, they may thereby have raised the doubt occasioning this litigation. In any event, the language employed is fairly susceptible to the construction that ears are required to move each way on the several lines of defendant’s street railway system, at intervals not longer than stated; and franchises a.re to be strictly construed, where ambiguous, against the grantee and in favor of the public. We have no hesitancy in approving the ruling of the trial court so interpreting the ordinance. State v. Des Moines City R. Co., 159 Iowa 259, 274; Miners’ Bank v. United States, 1 G. Greene 553, 562; Blair v. City of Chicago, 201 U. S. 400 ( 50 L, Ed. 801, 831); 19 Cyc. 1459; 36 Cyc. 1363.

2 mandamusgrantín^of' wntdiscretion, ' II. Counsel for appellant contend that the omission to operate its cars both ways on Main and Second Streets was not so detrimental to the public interest and did not involve such inconvenience to its patrons as that the court, in the exercise of sound discretion, have interfered. That the issuance of a writ of mandamus is not a matter of right, but rests in the discretion of the court, was recognized in Vincent v. Ellis, 116 Iowa 609. See also State v. Napier, County Judge, 7 Iowa 425; Chance v. Temple, 1 Iowa 179. As said in People v. Board of Assessors, 137 N. Y. 201 (33 N. E. 145):

“The writ of mandamus is not always demandable as an absolute right, and whether it shall be granted or not frequently rests in the discretion of the court. ’ ’

See People v. Olsen, 215 Ill. 620 (74 N. E. 785), where it was said that:

“"When a writ of mandamus is asked, the court may inquire whether it will operate impartially, create confusion and disorder, and whether it will or will not promote substantial justice. Courts, in the exercise of the discretion with which they are vested, may,' in view of the consequences attendant on ihe issuing of a writ of mandamus, refuse the writ, though the petitioner has a clear legal right for which mandamus is a proper remedy. People v. Board of Supervisors, 185 Ill. 288 (56 N. E. 1044). The court may act on existing facts, and view the case with reference to the consequences of its action.”

As seen, the defendant was under legal obligation to operate the cars both ways on Second and Main Streets because of having undertaken so to do, and we have to ascertain whether the trial court, in ordering that it do as it had agreed, abused its discretion. Necessarily, it was difficult to ascertain to what extent the public was inconvenienced by operating the cars one way only on these streets. No count having been made of how many walked each day from Main Street to Second Street to take a car moving west, or from Second Street to Main Street to take ears going east, the safe inference from the facts proven is that the number must have been large. During the year previous to October 1, 1914, 1,409,-069 fares were received on the lines on which the five cars are operated, or an average of 3,860 per day. How many of these were compelled to travel a block to get a ear is mere matter of inference, but the loop was near the business center of the city, and business houses are located on each street west of Market Street. According to the evidence, Main Street is the principal business street. Several wholesale houses are located on Commercial Street, south of Main Street. The depot of the Chicago, Burlington' & Quincy Railway Company and- of the Chicago, Rock Island & Pacific Railway Company is located two blocks west of Market Street and about 200 feet south of Main Street, and the depot of the Chicago, Milwaukee and St. Paul Railway Company and the Wabash Railway Company is about 700 feet farther on. Many factories are located along the western portion of Main Street. Second Street is thickly settled for 4 or 5 blocks east of the Chicago, Milwaukee & St. Paul Railway Company’s right of way, as are also several intersecting streets. To the east, on or near Second Street, are located the public buildings, such as the post office and courthouse. Indeed, these lines are more traveled than others of the city, save Ward Street, and are so situated that people from all parts of the city are likely to frequent them in visiting the public buildings, stores, factories, and in going to and from the railway depots. We entertain no doubt as to the great inconvenience occasioned the public because of defendant’s failure to operate its cars in both directions on these lines. Its efforts to economize are to be commended, in so far as these do not interfere with the ' proper compliance with its obligations under the franchise. The purpose of the franchise was not to enable the defendant to earn as much money as possible, but to furnish the people with adequate means of transportation. The proposed economy might have been effected without impairing the efficiency of the system, at a relatively small expense. Tailing off the loop or shuttle car effected a saving of $6,500 per annum. As appears from the evidence, the cars operated between Forest Avenue and Vernon Street could have alternated in going each way on Main and Second Streets, thereby giving service in each direction. - To have made this possible, one turnout must have been changed and three put in, at an estimated cost of $7,775. Such expense would have been met by the saving in little more than a year, and would have been amply justified in view of the saving effected. This mode of operating the cars might occasionally have caused congestion at Market Street, but not of such character as to prevent the safe operation of the ears as suggested. The company, with cars used, was able to give a 10-minute service one way during half the day, and if so, would have experienced little difficulty in furnishing a 20-minute service, at least, both ways, without increase of cars. Of course the manner of operating the cars is within the defendant’s control, so long as the service stipulated is furnished, and this much is said to indicate that there exists no reasonable excuse for not giving service such as promised by the acceptance of the franchise. Nor is there any pretense that its earnings are not ample for this purpose.

3 mandamus • purposes1of recompbAncewUh franchise. Enough has been said to indicate that there was no abuse of discretion by the trial court. That a railway company may be compelled by a writ of mandamus to perform ifs 'Obligation under a franchise is w;ell settled. City of Potwin Place v. Topeka R. Co., 51 Kans. 609 (37 Am. St. 312) ; State v. Bridgeton & M. Traction Co., 62 N. J. 592 (45 L. R. A. 837); State v. Hartford & N. H. R. Co., 29 Conn. 538; People v. New York Cent. & H. R. R. Co., 28 Hun (N. Y.) 543; State v. Spokane St. R. Co., 19 Wash. 518 (67 Am. St. 739, 41 L. R. A. 515).

The rule to be deduced from the cases relied on by appellant is that a company acquiring fwo lines of railway between the same termini, operation of one of which will substantially accommodate the public, even though at slight inconvenience to some, will not be compelled to operate both lines; and the same doctrine applies to the maintenance of depots in close proximity. See Crane v. Chicago & N. W. R. Co., 74 Iowa 330; People v. Rome, W. & O. R. Co., 103 N. Y. 95 (8 N. E. 369) ; Territory v. Eastern Railway, 15 N. M. 599 (110 Pac. 852) ; Day v. Tacoma R. & Power Co., 80 Wash. 161 (141 Pac. 347).

That question is not involved in this ease save in principle; for the' defendant has abandoned neither line, but merely failed to operate its cars thereon as required by the franchise. It may readily be conceded that, if adequate service were furnished, with slight inconvenience to a few only, the court would, in the exercise of its discretion, refuse^ to enforce compliance with the ordinance by the company at considerable sacrifice. But the operation of cars in both directions on each street does not impose an unwarrantable burden on the company. Nor is its failure to do so a mere matter of inconvenience to a few. These are, as the evidence tends to show, the principal business streets of the city. Nearly a million and a half of people travel over them and extensions thereof annually, and it is idle to say that of these only a few are inconvenienced by the cars moving b,ut one way on each street. The entire situation refutes any such conclusion, and leaves no doubt that a very large number of people from all parts of the city are daily inconvenienced by being compelled to run back and forth between streets in order to obtain transportation over defendant’s lines.

We are not inclined to interfere with the issuance of the writ of mandamus, as prayed, by the trial court. — • Affirmed.

Evans, C. J., Gaynor and Salinger, JJ., concur.