Logan & Sons v. Pyne

Beck, J.

, 1. MUNICIPAL limFtation of; powers. I. The power of municipal corporations is strictly' confined within the limits prescribed by the statutes creating them, and will not be extended by the courts upo n d L uaere inference. It always depends upon express grant, or must be necessarily implied as incident

to other powers expressly granted, or indispensable to the object and purpose for which the corporations were created. Doubts as to the existence of such powers must be resolved against the corporations and in favor of the public. Merriam v. Moody, Ex'r, 25 Iowa, 164 ; The State v. Smith, 31 Iowa, 493 ; Ham v. Miller, 20 Iowa, 450 ; Oity of Burlington v. Keller, 18 Iowa, 60 .

,_-grants tionf^ionopolies

II. A municipal corporation can grant, if at all, exclusive privileges for the protection of business which, without pro-

history legislation, would be free to all men, only under express legislative grant of power. Monopolies being prejudicial to the public welfare, the

courts will not infer grants thereof, refusing to presume the existence of legislative intention in conflict with public policy. The State ex rel. v. Cin. Gas Light and Coke Co., 18 Ohio St., 262 ; Minturn v. Same, 23 How., 435 ; Charles River Bridge v. Warren Bridge, 11 Pet., 420 .

3 _. cifcy cilisWe1 privliege. III. The power in question attempted to be exercised by the city, in granting plaintiffs the exclusive right to run vehicles for the transportation of passengers, it is claimed by plaintiffs, may be based upon certain provisions of the city charter to the following effect. The charter declares that the city shall “ exercise and *526 enjoy all rights, immunities, powers and privileges” * * * “appertaining to a municipal corporation,” and may “make all ordinances necessary and proper for carrying into effect the powers ” granted by the charter; and that it may “make regulations to secure the general health of the city,” and may “license, tax and regulate hackney carriages, omnibuses, wagons, carts, drays and all other vehicles.” These are all of the provisions found in the charter which are relied upon to support the power of t'he city, to enact and enforce the ordinance in question. It certainly cannot be claimed that, in any one of them, is the power conferred by express words.

As we have seen, the power to grant monopolies does not appertain to a municipal corporation, unless upon express grant. It cannot be claimed that a general grant of such powers as pertain to cities would include such as can only be exercised under an express grant. Such a rule would abrogate the doctrine restricting the city to the exercise of such powers as are expressly conferred upon it and carries on its face an obvious construction of terms. The provisions of the charter authorizing ordinances necessary to carry into effect the powers granted, and to secure the general health of the city, cannot be interpreted as an additional grant of power, but must be understood simply as direction for the exercise of powers before bestowed. The grant of power to license, tax and regulate omnibuses and other vehicles, certainly cannot be construed into the bestowal of authority to create monopolies in their irse. It has been held that, when a municipal charter granted the power to regulate and license the slaughtering of animals, the city council could not designate a particular building for the prosecution of such business and forbid it elsewhere, thus conferring npon the owner a monopoly of that business in the city. Chicago v. Rumpff, 45 Ill., 90 .

We conclude that the charter of the city of Dubuque confers no authority upon the municipal government to grant the exclusive privilege of running omnibuses and other vehicles, as is attempted in the ordinance under which the plaintiffs claim to recover in this case. The demurrer to this petition ought, therefore, to have been sustained.

Reversed.