Des Moines Gas Co. v. City of Des Moines

Seevers, Ch. J.

I. Conceding the ordinance of 1864, upon its acceptance by the plaintiff, amounted to a contract, whereby the city agreed to take of the plaintiff all the gas consumed in public buildings and lamps, and pay therefor a price fixed by the ordinance for a term of years which has not expired, and further conceding the city is about to repeal said ordinance; and so far as it can by the passage of another ordinance deprive the plaintiff of the benefits of said contract, the question whether the passage of such subsequent ordinance can be prevented by injunction, or, in other words, whether the courts have jurisdiction or the power to restrain by injunction, under the circumstances above stated, the passage of the proprosed ordinance, is fairly presented.

At the time the ordinance under which the plaintiff claims was passed, the city had, and now has, the “ power to lay off, open, widen, straighten, or to narrow or vacate, or extend and establish, to keep in order and repair, and to light, streets, alleys, public grounds, wharves, landing places, and market places * * *Rev., § 1064, Code, § 464, and “ power to make and publish from time to time ordinances * * as shall seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, comfort, and convenience of the corporation, and the inhabitants thereof. * * Rev., § 1071, Code, §482.

It will be readily seen the city had ample power to pass the ordinance under which the plaintiff claims, and that it was a proper exercise of corporate authority, unless the grant of the exclusive privilege therein contained rendered it void, and also that it now has the requisite authority to pass the ordinance sought to be enjoined, unless prohibited from so doing by reason of the existence of the former. Counsel for the appellant concede, if the proposed ordinance is a rightful exercise of legislative authority, that its passage cannot be prevented by injunction.

*509

1 municipal delegation*o! 11?o¡rfty to legisiate.

*508 There can be no doubt but that it is competent for the Gen *509 eral Assembly to delegate to corporations of this character the Power to enact ordinances “ which, when authorized, ^ave ^1<3 force and effect of laws passed by the legislature of the State within the corporate limits, i Dillon on Municipal Corporations, § 215. "Within the sphere of their delegated powers municipal corporations have as absolute control as the General Assembly would have if it never had delegated such powers and exercised them by its own laws. Taylor v. Carondelet, 22 Mo., 110 ; Heland v. Lovely, 3 Allen, 408 .

If the corporation is empowered, and if it deems the public welfare requires it, to open streets or make public improvements therein, its determination, whether wise or unwise, cannot be judicially reversed or corrected. 1 Dillon on Municipal Corporations, § 50. The discretion of such corporations within the sphere of their powers is as wide as that possessed by the government of the State. City of St. Louis v. Boffin ger, 19 Mo., 15 . And discretionary powers are to be exercised according to their judgment as to the necessity or expediency of any given measure. Kelley v. Milwaukee, 18 Wis., 85 .

2 _. _. injunction. Does the fact that the ordinance under which the plaintiff claims amounted to a contract in any wise affect the question? It is believed to be true that an ordinance or by-law is ^g ^asis or foundation stone upon which all contracts made by these corporations must rest. They may contract directly by ordinance or thereby authorize some officer or agent to contract for them. In the present case the former mode was adopted, but certainly this did not destroy the rightful legislative character of the act.

The General Assembly is a co-ordinate branch of the State government, and so is the law-making power of public municipal corporations within the prescribed limits. It is no more competent for the judiciary to interfere with the legislative acts of the one than the other. But the unconstitutional acts of either may be annulled. Certainly the passage of an unconstitutional law by the General Assembly could not be enjoined. If so, under the pretense that any proposed law was of that character, the judiciary could arrest the wheels of legislation.

*510 Had the ordinance under which the plaintiff cl aim a been enacted by the General Assembly, and the plaintiff acquired thereunder the same rights as under the ordinance, and the General Assembly thereafter attempted to enact a law in substance like the ordinance sought to be enjoined, could the judiciary interfere and by injunction restrain the action of the General Assembly on the ground that the law if enacted would “impair the obligation of contracts?” After its passage the judiciary may declare the law unconstitutional. Piqua Bank v. Knoop, 16 How., 369 ; Dodge v. Woolsey, 18 Id., 331, but previous to that time judicial powers cannot be invoked.

Dodge v. Woolsey clearly demonstrates that the interference of the judiciary is unnecessary' to protéct the rights of the plaintiff.

If the ordinance sought to be enjoined is void, by reason of its unconstitutionality, the plaintiff can be in no wise injured by its passage. A void law is no law, and this without doubt is true as to an ordinance. No injury, much less one of an irreparable character, can be inflicted by such an ordinance.

. The fact that the ordinance sought to be enjoined amounts to a contract with another gas company by no means deprives it of its legislative character. These corporations must be permitted to promote the welfare of the inhabitants thereof in their own way, so far as the form their respective ordinances shall assume is concerned.

Suppose the city had determined to piit in gas works, to be owned and controlled by the city, and thereby supply the public lamps and buildings with gas,'and by ordinance so provided; could such an ordinance be enjoined, or would this have been rightful legislation? and because the city chose by ordinance to contract with some one to do the same thing, does that make it wrongful?

No such distinction can be drawn. The substantial thing of which the plaintiff complains is that it is about to be deprived of the benefits of the contract, and not as to the form in which the attempt is to be made.

The only cases cited by counsel for the plaintiff, which apparently conflict with the views herein expressed are The People *511 v. Sturtevant, 9 N. Y., 263 , and Davis v. The Mayor, 14 N. Y., 506 . The former grew out of and is based on tbe latter. In the latter tjie power to enjoin a city council from by ordinance creating a public nuisance in tbe streets was affirmed. It is unnecessary to commit ourselves' to this doctrine. There, is, however, a clear distinction between tbe case cited and tbe one at bar. For it never can be a rightful subject of legislation .to create a public, nuisance, and if tbe passage of an ordinance, without more, created tbe nuisance, tbe mischief resulting therefrom.might be irreparable, and we are not pre-' pared to say its passage could not be enjoined.

While it is not tbe province of tbe judiciary to interfere and arrest tbe passage of tbe ordinance, yet tbe doors of tbe courts are open for tbe purpose of testing its legality, and therefore the plaintiff is by no means remediless.

II. It is claimed by counsel for tbe appellees that tbe ordinance under which tbe plaintiff claims is void, because of tbe exclusive privilege therein granted, and also that it provides for its own repeal in certain contingencies, which it is claimed have happened.

. Eor tbe reason that it is unnecessary, and because counsel for appellant have not, owing no doubt to an intimation from tbe court at tbe time tbe motion to arrest tbe defendants for com tempt, in disobeying tbe injunction, was - determined, fully argued these questions, no determination thereof is made.

Tbe ruling of tbe Circuit Court dissolving tbe injunction is

Affirmed.