through the streets of a city or village, would occupy them but slightly and be concentrated in a single limited locality. And yet, since even such partial occupation might work injury to the public right, the consent of the city authorities is made requisite as a guard and protection. But street railways may occupy every street in a city and iron the whole surface, or spin their webs in the air over every avenue, or undermine the entire system of city streets. To authorize such is to inflict injury upon adjoining lot owners, in greater or less degree, and hence the consent of a due proportion of these was required by the constitution, or, instead, the order of selected commissioners confirmed by the court. Where the railway runs under the streets, the adjoining owners are as much and as dangerously affected as where it runs on their surface or above them. Whether the new surface is safe and sufficient, or weak and perilous, and invites or frightens away passage; whether the openings obstruct or hinder access to the abutter, or pour out through the ventilators smoke and steam upon his premises; whether his vaults and foundations will remain safe and secure, or be undermined, or weakened by vibration; whether his gas and water supply will continue ample and convenient, and the new sewerage work him no injury; all these are to him questions of vital importance, affecting his comfort and convenience, the success of his business and the value of his property. The same reasons which dictated a constitutional protection against roads on or above the surface of the streets, apply to those which are built beneath in the manner here contemplated, and these should justly be deemed street railroads within the meaning of that phrase as used in the constitution. The rapid transit act, passed very soon after the constitutional amendment, applies its provisions to roads under as well as on or above the surface, and so tends to support our conclusion. The act of 1880 contemplates and regulates just such an underground railway as is now sought to be constructed. It in terms relates to one lying wholly within city limits, running beneath its streets, cutting out and replacing their surface and leaving in them openings for access and ventilation. If the act authorizes any railway at all it authorizes a street railway within the terms of the constitutional prohibition. But it is claimed that it authorizes no railway whatever, and for that reason AUTHORITY escapes the control of the fundamental law. The com- DER ACT OF 1880. pany's counsel argue that it gets its authority for the construction and operation of its underground road, not from the act of 1880, but from the general act of 1850, under which it was organized. But that act, as we have held, has no application to street railroads (N. Y. Cable Co. v. Mayor, etc., 104 N. Y. 1), and, if it had, the act of 1860 (chap. 10) takes away the authority so conferred, for it provides that "it shall not be lawful hereafter to lay, construct, or operate any railroad in, upon, along or any or ΤΟ BUILD ROAD UN either of the streets or avenues of the city of New York, whereever such railroad shall commence or end, except under the authority and subject to the regulations and restrictions which the legislature may hereafter grant and provide." Having held that appellant's road is a street railway, and shown that it is planned to be built in and along the city streets, it follows that it has and can have no authority to construct its proposed road under the act of 1850; and if it does not get it under the act of 1880. it has no authority at all and no standing before the court. I think that the truth may be that the appellant derived its corporate existence from the act of 1850, but certainly not its right to construct its contemplated road; that such right could only come from the rapid-transit act or the act of 1880, and that the latter is an act which authorizes the construction and operation of a street railway, and so is within the constitutional provision. HAVE STATUTE It is further said, however, that only so much of the act of 1880 is invalid as makes the order of the court confirming the report of the commissioners stand for the consent of the authorORDER MUST ities, and that the order may be granted and stand for EFFECT OR NONE. the consent of the property owners alone. We cannot see our way to that conclusion. The order, when made, is a single thing, which must have the statute effect or none. We cannot divide or mutilate it without changing its inherent character, purpose, and effect. Limited to the consent of the land owners, it would be a good order, but not the order which the statute authorized. The legislature has declared that when made it shall stand for two things. We are asked to say that it shall not, but only for one. If we do that, we invade the domain of the legislature; we change its mandate as to the effect of the order; it ceases to be the order authorized, and becomes another and different one. It is not the case of two independent provisions, one of which may be rejected without affecting the remainder of the act, for we cannot lessen the effect of the order without maiming the order itself and its statutory character. Very possibly the act may stand as an authority for the construction of an underground street railway upon the condition of the assent of the city authorties and the half of abutting values, and rejecting all the provisions for the appointment of commissioners, whose order shall be a substitute. Further than that we do not deem it our duty to go. The order should be affirmed, with costs. All concur. Order affirmed. DES MOINES STREET R. Co. v. DES MOINES BROAD-GAUGE STREET R. Co. SAME v. CITY OF DES MOINES et al. SAME V. DES MOINES BROAD-GAUGE R. Co. (Advance Case, Iowa. January 27, 1888.) The city council of Des Moines passed an ordinance granting to a street railway company the right to lay and operate tracks in said city, such right to be exclusive for thirty years, and no privilege to be granted to other persons which might impair this privilege. In construing this ordinance the court holds: 1. That such ordinance operates as an exclusive grant of street railway privileges to such corporation, and not merely to secure the corporation the sole use of the tracks which they lay. 2. That under the Iowa Code (sec. 464) which empowers cities to authorize or forbid the laying down of a street railroad track, the city council may make provision by contract for present and future railroad service, and may secure the company contracted with against the impairment of its profits for a term of thirty years, and against interference with its extension during that time by the grant of exclusive privileges if by such contract better service can be obtained. 3. That under such ordinance the corporation has a right to prevent the operation of a competing line, not only on the streets already occupied by its own lines, but on any other streets. 4. That that section of the Iowa constitution (sec. 12, art. 4) which provides that "no exclusive privileges except as in this article provided shall ever be granted," has no application to the case of an exclusive grant to a corporation where the grant is of such rights as might properly be acquired by an individual by contract. 5. That although an ordinance purporting to adopt and ratify a previous ordinance granting a corporation certain privileges is void as an ordinance, it is nevertheless effectual as a ratification by the city of such prior ordi nance. 6. That an ordinance which adopts and ratifies a former invalid ordinance granting a corporation exclusive privileges is not deprived of its validating force by a provision therein that grants of exclusive privileges shall not be enlarged by virtue thereof. APPEAL from circuit court, Polk county. These cases are submitted together as involving the question as to the respective rights of the plaintiff, the Des Moines Street R. Co., and the defendant the Des Moines Broad-gauge R. Co., to occupy certain streets of the city of Des Moines. The first case is an action to enjoin the defendant, the Des Moines Broad-gauge Street R. Co. from interfering with the plaintiff in laying its tracks upon certain streets, and for a decree that it has no rights in those streets. The second is an action for an injunction to prevent the 32 A. & E. R. Cas.-14 city and city officers from interfering with the plaintiff in laying its track. The third pertains to a different street, but involves substantially the same legal questions. The decree rendered is quite lengthy, and we cannot properly set it out in full. It enjoined the defendant, the Des Moines Broad-gauge R. Co. from occupying a portion of one street, and gave the plaintiff an exclusive right therein. It allowed the defendant to occupy other streets, and made various provisions in regard to occupancy. Both the plaintiff and the Des Moines Broad-gauge R. Co. appeal; the former perfecting its appeal first. Kauffman & Guernsey and Parsons & Perry for appellant. Baylies & Baylies for appellee. FACTS. ADAMS, C. J.-The plaintiff's claim that it has for the present, under the ordinances of the city, an exclusive right to furnish to the city of Des Moines its street-railway service, and to occupy for that purpose, without hinderance or competition by any other street-railway company, so many of the streets as may be necessary, and that it will continue to have such right for a limited time to come, if it complies with its obligations, express and implied, arising under the ordinances in question. If this claim shall be sustained, the determination thus made will dispose of the other questions in the case. In 1866 the city council of Des Moines passed an ordinance whereby it granted to the plaintiff's assignor, a company organ ized as a street-railway company, the right to lay a single or double track along all its streets. The same ordinance provided that "the right herein granted to said company to operate said railway shall be exclusive for the term of 30 years.' Many other provisions were made, not important to be set out. The plaintiff relies upon the provision above quoted as being sufficient, so far as its terms are concerned, to give the exclusive right claimed, and insists that the provision is valid, if not origi nally for want of legislative grant of power, yet subsequently by such grant by the legislature, and by ratification of the ordinance by the council. The defendant company obtained an ordinance in 1886, and proceeded to occupy certain of the streets with its track. It denies that the right claimed by the plaintiff under the ordinance of 1866 appears to be given even by the terms of the ordinance. Its position is that the exclusive right granted pertains merely to the ope ration of the railroads which the plaintiff's assignor should build, and not to the streets, and that the plaintiff's right is not interfered with by occupancy of other or the same streets if the plaintiff is not hindered in the operation of its road. In our, opinion, however, the meaning of the provision is the same as if it read, "the right herein granted to said company to ERATES AS EX- WAY PRIVI operate said railway shall be exclusive" of other street railways. It was not necessary to provide by ordinance that other ORDINANCE OPpersons should not run cars on the plaintiff's assignor's track, nor obstruct its cars; and no one, we think, look- OF STREET RAILing at the ordinance, can suppose that that was all that LEGES. was intended. So far, the plaintiff's assignor's right would be exclusive by reason of the mere right of property, and without any ordinance. If anything more were necessary we find it in the very section of the ordinance under consideration. It is provided in the same section and same sentence as follows: "And the said city of Des Moines shall not, until the expiration of said term, grant to or confer upon any person or corporation any privileges which will impair or destroy the rights and privileges herein granted to said company." The right granted was to lay and operate a track on all the streets of the city. The construction and operation of a rival railway would impair the plaintiff's rights. It might not constitute a physical interference, but it would impair, if not destroy, the plaintiff's enterprise, so far as the profits were concerned; and those, we may assume, constituted the sole object of the enterprise. We cannot think that there is any reasonable doubt about the meaning of the ordinance. We think that the city undertook to exclude rival companies which would interfere with the profits of the company for whose benefit the provision was intended. CITY TO OF MAKE The defendant company's next position is that the provision in question is void for want of power in the city to make such provision. The fact is that there does not seem to have been, as early as 1866, any legislative grant to the city AUTHORITY of power to confer upon an individual or corporation PROVISION. an exclusive right. The plaintiff contends that no such legislative grant was necessary, and adduces some very able arguments in support of its position. We do not find it necessary to determine this question. It was afterwards provided, in section 464 of the Code, that the city council shall have "power to authorize or forbid the location and laying down of tracks for railways and street railways." The plaintiff contends that the power to forbid is sufficient to enable the city council to make a granted right practically exclusive for such time as it may see fit, by withholding the right from others. This, of course, cannot be denied. The doubt, if any, is as to whether the council, having the power to make a granted right practically exclusive, by withholding it from others, can bind itself by contract to withhold it for a limited time from others, if it shall deem it necessary to make such contract in order to secure a service to the public which it might not otherwise be able to do. The question presented calls for a construction of the provision of the statute which gives the "power to authorize or forbid the |