The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1913-12-31
CITY HAS No RIGHT TO
PASS PHONE ORDINANCE
allow such a right to be taken by a
city.
Initiative Powers Limited.


city.
Initiative Powers Limited.
A bit farther down in his decision
Judge Sloan takes up the initiative
and Its powers. He holds that the
construction placed on the initiative
that 1t can pass any ordinance it may
deem proper within or without its
charter powers is startling and not
/ tenable, and that the commission plan
governed city Is bound by it's charter
powers.
| Judge Sloan quotes section 1056A-
81 and says:
1T is claimed that the legal effect
of this provision Of law, that through
the initiative the powers Of the city
council are so enlarged that 1t may
pass any ordinance 1t may see proper
whether within or without Its charter
powers. Such construction thereof
is somewhat startling to me. It
would enable the city to disre-
gard its charter powers and pass
any ordinance not In violation of
the laws and constitution OF the state.
In my judgment such construction
thereof is not tenable but, that 1t is
limited by its charter powers. II it
was intended to SO enlarge its pow
ers 1t would have been easy to have
made it clear by adding the word
ordinance in the first line Of the Sec
ton, whether within or without It's
charter powers and thers would have
been no doubt on the subject.
However, whether l am right or
wrong in my conclusion 1t is very
evident to me that the legal questions
involved in this report should be def
/ nitely and finally settled before un-
dertaking to hear the issue involving
the compliments claim that the
! rates are confiscatory at cost Of
| four or five thousand dollars. II
am right in my conclusions there Is
no need. tn erefore, but If am wrong
| in this last question with reference to
the rate regulation then it can still
be heard and determined with but
! little delay.
| Decree Should Issue.
In my judgment a final decree
/ should be rendered by the court per-
manently enjoining the enforcement
of ordinance No. 423 of said city,
against the compla nant and 70. costs
of the suit
AS to the question of the company
! having a perpetual franchise Judge
Sloan decides that the company has
4 a perpetual franchise If it was taken
out before 1897. He says:
THE power to limit the right TO
use the highways in constructing a
! telephone line rested in the legisla.
/ ture, from whom the right SO to use
emanated, and as it did not limit the
! right in point OF time, no implied
power to do so is vested in the city.
4 The power to limit right or grant
I by an act of legislature itself must
be conferred by express legislative
enactment.
This was the condition OF the
statutes until the code Of 1897 went
into effect Oct. l, 1897.
i The complainant acquired the
property involved in this act on the
25th day of August A. D.. 1896, before
4 the code vent into effect by convey.
ance from the Central Union Tele
phone company by the deed, exhibit
to this report, and took pos session
and control OF the property between
said date and Sept. !, 1896, and have
been in possession and control ever
since The provisions of the code OF
1873, section 1924 were therefore in
full force when the code of 1897 went
into effect, and evidently conferred
on the complainant the right to use
the streets and alleys of the city as
they provid ed, perpetually."
The case of OwensboIo against the
Cumberland Telephone and Telegraph
company is cited
Perpetual Franchise.