proper continuance of the preliminary injunction in the limited form in which such continuance was granted, but there had never been any motion to dissolve that injunction, and therefore there is no liability for attorney's fees on account thereof. The difficulty with the injunction as originally prayed for was that appellant's showing for relief was predicated on the fact that defendants were proceeding to take possession of the chattel property covered by the mortgage and advertise it for sale before the indebtedness secured was due, and without good reason therefor; but this court is committed to the doctrine that the stipulation in a chattel mortgage such as was contained in this, authorizing the mortgagee to take possession of and sell the property whenever he chose to do so, is valid, and no showing of ground therefor is necessary. Affirmed.

FITZGIBBON et al. v. MACY, Judge. (Supreme Court of Iowa. Oct. 30, 1902.) INTOXICATING LIQUORS-CONSENT OF ELECTORS-FILING-DENIAL NOTICE - STATUTES -CERTAINTY-BOND FOR COSTS-TIME FOR FILING-MANDATORY CONDITIONS.

1. Code, § 2450, provides that after a general statement of consent of electors to the sale of intoxicating liquors, filed with the county auditor, is found sufficient by the board of supervisors, any citizen may file a general denial as to the statement with the clerk of the district court, "whereupon the county attorney shall cause notice thereof to be served on the person or persons filing said statement of consent.' Held, that such notice need not also be served on the persons who filed the consent of the city council and resident freeholders owning property within fifty feet of the building where the business proposed was to be conducted.

2. It was not necessary that such notice be filed with the auditor, as the statute contained no such requirement.

3. The statute directing notice of general denial to be served on persons filing statement of consent excludes the notion that notice must be served on all siguing consent.

4. The statute further provides that, after such notice is served on those filing the general statement, they shall within 10 days file with the clerk a bond conditioned to pay the costs of a hearing in the district court, and, if the bond be filed, then the auditor shall certify all the papers to the district court, but, if no bond be filed, the order of the board of supervisors finding the statement of general consent sufficient shall be set aside as null and void. Held, that the requirement that a bond be filed within 10 days was mandatory.

5. The time within which the bond was required to be filed was not unreasonably short. Certiorari to district court, Harrison county; N. W. Macy, Judge.

S. H. Cochran, J. S. Dewell, Frank Tamisiea, and W. H. Ware, for plaintiffs. Bolter Bros. and M. B. Bailey, for defendant.

LADD, C. J. It appears that on the 24th day of December, 1901, Samuel Holmes and F. S. Burbank carried from Missouri Valley to Logan, and filed with the auditor of Harrison county, a general statement,

signed by numerous electors, consenting to the sale of intoxicating liquors within that county. This statement of consent was canvassed by the board of supervisors January 6, 1902, and by it declared sufficient. On the same day C. N. Cadwell and others filed with the clerk of the district court a general denial of said statement, and executed a bond for costs; and the county attorney caused notice of appeal to the district court to be served on Holmes and Burbank, who did not file a cost bond until January 29th following. The next day the auditor certified the papers and record to the district court, and at the April term of said court those filing the general statement of consent moved to strike said statement from the files and dismiss the appeal. This motion was overruled. Thereupon contestants moved that, inasmuch as bond for costs had not been filed within 10 days after service of notice of appeal, the finding of the board of supervisors be set aside and declared null and void. This motion was sustained, and judgment entered accordingly. Did the district court, in entering such judgment, exceed its authority? The questions thus raised involve the construction of section 2450 of the Code. That provides for the canvass of the general statement of consent by the board of supervisors, and the entry of record of their finding, which "shall be effectual for the purpose" contemplated until revoked. "If the board shall find the statement sufficient, any citizen of the county may, within thirty days thereafter, upon filing a sufficient bond for the costs, file with the clerk of the district court a general denial as to the statement of general consent, or any part thereof, whereupon the county attorney shall cause notice thereof to be served upon the person or persons filing said statement of consent with the county auditor, and said party shall within ten days file with said clerk a bond conditioned to pay the costs of the hearing in the district court, in a sum to be fixed by the clerk of said court. If such bond be filed, then the auditor shall certify the statement of consent and all papers and records to the district court, where the matter shall be tried de novo, the county attorney appearing for the state; but if no bond be filed, then the order of the board of supervisors finding the statement of general consent sufficient shall be considered and treated as set aside and null and void. The costs in all cases of appeal shall be taxed against the losing party. Should the board of supervisors find the statement of general consent insufficient, any party aggrieved may appeal therefrom to the district court by filing, within thirty days thereafter, with the clerk of said court a sufficient bond for the costs. Upon the filing and approval of said bond, the auditor shall certify the statement of consent and all papers and records to the district court, where the matter shall be tried de novo."

1. The plaintiffs first contend that notice by the county attorney should have been served on the persons who filed the consent of the city council and resident freeholders owning property within 50 feet of the building where the business propose. was to be conducted. A sufficient answer to this contention is that the statute requires notice to be served on those only who file the general statement of consent with the county auditor. If plaintiffs' contention were correct, the right to contest the finding of the board in the district court might easily be defeated by a delay of those intending to engage in the liquor traffic for 30 days after its decision. It cannot be definitely known who will be directly interested in such business until the privilege of engaging in it is fully adjudicated in the manner pointed out in this statute. The notice is therefore directed to those apparently in control; i. e., who file the general statement of consent, which is precedent to all other conditions named.

2. The statute, as will be observed, contains no requirement that the notice given by the county attorney shall be filed with the auditor. In the absence of any such provision, filing it with him was not required. It would seem that notice, with proper proof of service, ought the rather to be filed with the clerk of the district court. The denial of the general statement of consent, together with the bond of contestants, is filed there, and very naturally one interested would look to the clerk's records to ascertain whether all matters preliminary to the transfer had been complied with. Whether it must be so filed before the auditor is required to certify the papers and record to the district court need not be considered, as the notice, with return, was filed January 7, 1902.

3. The plaintiff discusses the question as to whether the bond by the persons filing the general statement of consent must be filed within 10 days after the service of the notice, or the filing of it. As more than 10 days elapsed in either event, the point is not material.

4. Is that part of the statute requiring the persons filing the general statement of consent to file a bond, in a sum to be fixed by the clerk, within 10 days after service of notice by the county attorney, mandatory? It is, for the very good reason that the same statute specifies precisely what result shall follow the omission to file such bond, namely, "the order of the board of supervisors finding the statement of general consent sufficient shall be considered and treated as set aside and null and void." It is said that the time for this is not stated. A bond is exacted within 10 days, and, in providing the consequence of filing and omission to file, reference is clearly had to the filing as directed; that is, within the period named. The plaintiffs argue that no prejudice could result from an omission to file until the appeal is

docketed. The trouble with this position is that the papers and record are not to be certified in event no bond is filed. If not furnished within the time specified, the finding of the board is to be treated, without any hearing, as null and void. That those who did in fact or were about to open business immediately after the board of supervisors declared the general statement of consent sufficient did not learn of the contest. is wholly immaterial. They are presumed to have known the law, and hence that the finding might be contested; and had they examined the record of the clerk's office at any time subsequent to January 7, 1902, they would have been fully advised of the situation.

5. The plaintiffs suggest that the time within which bond is required to be filed is so short as virtually to deprive them of the benefits of a trial. The period allowed is that within which a defendant is required to appear and defend in court on advice of an original notice, and we hardly think more time reasonably needed to file a cost bond, especially when a part of the very proceeding in which the privilege of selling intoxicating liquors is sought.

6. There is no ground for saying the statute is uncertain as to the persons upon whom notice shall be served. They are specifically described as "the person or persons filing said statement of consent with the county auditor." By this is meant the persons who present to the auditor, and cause to be filed, the general statement. The language excludes the notion of notice to all those who signed the statement. Their number renders this impracticable. That there may be reasons why a different notice should have been prescribed may be conceded. That given was all the law, as written, exacted. Holmes and Burbank represented the committee having in charge the procurement of the statement of consent, and plaintiffs were not in the dark as to those upon whom notice would necessarily be served. The order entered was precisely that directed by the statute, and is approved.

and upon said boulevard," and the railway was built along one side of the enlarged street. As a defense to an action by the county to enjoin the company from such use of the road, the company successfully relied on a statute authorizing the construction of such railway on "highways" over 100 feet in width. The county also refused to accept the dedication of the property owners. Held, that the company's right of way was not derived by grant from the property owners as over private property, since dedication and acceptance of the additional strip by the public was inferable from such circumstances, regardless of the absence of a formal acceptance by the county.

2. An ordinance was passed authorizing a street railway company to lay its tracks on a certain grade and in a certain manner. Six years later, when the repeal of the ordinance was being discussed, the company made its first move under the ordinance. Held, that such action was colorable only, and would not deprive the city of its right of repeal.

3. An ordinance ordered a street railway company to move its tracks from the side of the street to a rock-ballasted curbed strip 20 feet wide in the middle of the street, elevated several inches above the 25-foot driveways on either side. Six years later the city passed a repealing ordinance again ordering the removal to the middle, but also ordering the paving and lowering of the tracks to grade. Held, that the second ordinance was not invalid as a violation of a contract or vested rights, since a city cannot be devested by ordinance or contract of its legislative power to make changes in its streets in the exercise of a reasonable discretion.

4. The burden is not cast upon a city to show that its exercise of legislative power is reasonable.

5. Under the authority of a statute providing that street railway companies might extend their lines into the county over highways 100 feet or more in width, a company constructed its line out upon such a highway. The highway afterwards became a city street. Held, that the use of the road, as granted by the statute, was subject to the governmental control of the highway, and that hence the company could be compelled by ordinance of the city to move its tracks, the same as any other street railway.

6. A motor line operating a street railway on a certain street purchased the franchise of an electric street railway company calling for an electric line along the same street, and also providing regulations for the construction and maintenance of the tracks. The motor line changed its power to electricity, but continued to occupy the same tracks. Held, that the regulations of the charter applied to the old motor tracks.

7. An ordinance ordered the removal of street car tracks from the side of a street to a strip in the middle 20 feet wide, to be curbed and rock-ballasted, and elevated several inches above the adjoining 25-foot driveways. Afterwards a repealing ordinance was passed ordering the tracks to be moved to the middle of the street, but to be constructed at grade, and the ground so occupied to be paved in accordance with the rest of the street. The company was operating under a charter requiring that the car tracks be paved and constructed at grade so as to afford no unnecessary obstruction to travel. Held, that both on general principles and under the charter the repealing ordinance constituted a reasonable exercise of the city's legislative control of its streets. §§ 753, 767.

Code,

Appeal from district court, Linn county; Wm. G. Thompson, Judge.

The case is stated in the opinion. Affirmed.

Chas. A. Clark & Son and Wm. G. Clark, for appellant. John N. Hughes, for appellee city of Cedar Rapids. Heins & Heins and Hubbard, Dawley & Wheeler, for appellee J. J. Snouffer, Jr.

WEAVER, J. The facts essential to an understanding of this controversy may be stated as follows:

For many years prior to 1879 a public highway connected the cities of Cedar Rapids and Marion. Beginning as early at least as the year 1874, the property owners along that portion of said route now under consideration dedicated or attempted to dedicate additional land to the public for the use of said highway, making it 120 feet in width, and as thus enlarged such highway was thereafter known as "The Boulevard" and later as "First Avenue." In the year 1879, a corporation formed for that purpose undertook the construction between the two cities of a street railway to be operated by animal or motor power, and to lay the same within the boundaries of said highway as enlarged by the dedications above mentioned. In furtherance of this purpose the property owners along the route, or many of them, in May, 1879, signed a written instrument, the body of which is as follows: "We, the undersigned property owners on the boulevard between Cedar Rapids and Marion hereby consent, grant, and assign right of way for the purpose of a street railway between the said cities of Cedar Rapids and Marion on and upon said boulevard to the Marion and Cedar Rapids Improvement Co., said railway to be in operation in one year from May 1st, 1879; otherwise our permission as above to be null and void." Just when the railway was completed is not entirely clear, but probably in the spring or summer of 1880; the track being laid within the 120 feet aforesaid, but near the southern boundary thereof. March 12, 1880, the legislature of the state passed an act, which, while general in form, bears evidence of having been framed with special reference to this enterprise. That portion of said act having any bearing upon the result of this case is as follows: "Section 1. That any street railway company now or hereafter organized under the laws of this state to operate a street railway in any city or incorporated town in this state, for the purpose of extending its railway beyond the limits of such city or town, may locate, build and operate either by animal or motor power, its road over and along any portion of a highway which is of a width of one hundred feet or more. In such cases said company, as soon as practicable, shall put said highway in as good repair and condition as the same was before its use for the purpose herein contemplated; and boards of supervisors are herein authorized to accept for highway purposes under this act, conveyances of land adjoining any highway or part thereof sufficient to increase said highway to the width

of one hundred feet." Acts 18th Gen. Assem. c. 32. At this time that part of the enlarged street where plaintiff Snouffer now resides was outside of the corporation limits of Cedar Rapids, and was not annexed to said city until December 8, 1884. In January, 1881, the board of supervisors of Linn county passed a resolution declining "to accept any conveyance or dedication of land adjoining the highway between Cedar Rapids and Marion." In July, 1881, one S. C. Bever, being the owner of the property bordering on said highway between what are now known as "Fifteenth" and "Eighteenth" streets of the city of Cedar Rapids, and including the tract now owned by the said Snouffer, made and filed in the proper office a plat and instrument of dedication, making the street in question 120 feet wide. It would seem, however, that this dedication must be regarded as confirmatory of an actual or attempted dedication made at some earlier date, for, as we read the testimony, the street had been generally recognized as of the full width of 120 feet long prior to the filing of said instrument. The railway was operated by the company constructing it, though under a varying name, until September 29, 1891, when it sold and assigned its property and franchises to the present owner. May 1, 1891, the city of Cedar Rapids granted to a corporation known as the Thomson-Houston Electric Company an exclusive franchise for the construction and operation of an electric railway in said city, upon such streets as should be indicated by said corporation in accepting said grant, but requiring that among the routes to be selected should be one leading from the business portion of Cedar Rapids to the northeastern limits of the city June 9, 1891, the Thomson-Houston Company accepted the franchise, and designated First avenue, or the Boulevard, as the route selected between the business portion of the city and the northeastern limits of the incorporated territory. Thus, it will be observed, the new or electric line, as designated, was made to occupy the same street with the Cedar Rapids & Marion Motor Line. By the terms of the grant the Thomson-Houston company bound itself to pave between the rails of its tracks and one foot in width on either side of such tracks on all paved streets upon its route, and to so lay its rails as not to interfere with the safe crossing of its lines by vehicles, and generally to so use and operate its line as not to unnecessarily impede the public travel on any street, and upon completing the construction to restore said streets to as good condition as had existed at the time of its entry thereon. It also undertook to complete the construction of the designated lines in six months, and to hold its property subject to the proper orders of the city for the improvement of its streets, and to promptly raise or lower its tracks to conform to any changes made in the grade of 92 N.W.-6

the streets. In January, 1892, and before the electric line of railway had been constructed upon First avenue, the Cedar Rapids & Marion City Railway Company, owner of the motor line, purchased the property, rights, and franchises of the Thomson-Houston Company, and on May 20, 1892, said purchase having been reported to the city council of Cedar Rapids, that body adopted an ordinance approving and confirming said transfer, and declaring that all of the rights and franchises theretofore granted to the Thomson-Houston Company "are hereby granted, confirmed, and vested in the Cedar Rapids & Marion City Railway Company, subject, however, to all the terms, conditions, limitations, and liabilities contained" in the original grant. Upon obtaining this franchise, the Cedar Rapids & Marion City Railway Company adopted and thereafter used electricity as the motive power for operating all its lines, both those it had formerly operated by animal or steam motor power and those acquired by purchase. It also proceeded to construct and equip the several lines left unfinished by its grantor, except upon First avenue, where, instead of putting in a new track, it made use of the track of the old motor line, situated, as we have already stated, near the south boundary of said street. On March 8, 1895, while the Cedar Rapids & Marion City Railway Company were still using the track of the old motor line on First avenue for the operating of electric cars, the city council of Cedar Rapids enacted an ordinance known in the record as "No. 409," and around which much of the contention in this case centers. Such ordinance provided, in effect, that the 120 feet of First avenue should be improved upon the following plan: 25 feet upon each side of said avenue was ordered set apart for parking, and 20 feet in the middle of the street devoted to the use of the street railway company, which was ordered to remove its line from the south side of the avenue to the 20-foot strip above mentioned, and to construct a double track thereon. A curb was to be erected at the border of the parking, also along either border of the 20-foot space above mentioned, and the space between the curb lines was eventually to be paved; but the strip to be occupied by the railway as aforesaid was to be "ballasted with rock," except at street crossings, which were to be planked. The curb was to be 12 inches in depth, and the 20-foot strip, when improved according to said plan by setting the curbs and ballasting between them, would be elevated above the adjacent paving by several inches. The net result of this improvement, if completed, would be two parallel paved roadways of 25 feet each, separated by a 20-foot strip carrying the railway tracks, and ballasted with stone to a height which would render crossing the same with carriages impracticable except at street intersections. The last section of said ordi

nance provides that it shall take effect from its acceptance in writing by the railway company, and declares the intention to be that the company shall have the same right in the new location provided for it as it then legally possessed in the old location, subject only to the limitations expressed in such ordinance, and that, on the change being made, all rights of the company in the old location should cease. After the passage of Ordinance No. 409 in March, 1895, neither the city nor the railway company took action thereunder, and the company continued to operate its line on the old location for more than six years. In the spring of 1901 a proposition to repeal said ordinance was pending before the city council, but, before the matter was finally disposed of, the railway company began, or attempted to begin, the construction of a new double track in the middle of the avenue in front of the property of the plaintiff Snouffer, with the avowed purpose of making and improving such location in accordance with said Ordinance No. 409. On June 6, 1901, Snouffer began the suit first above entitled against the railway company and the city, alleging that the railway, as it was being constructed, was a nuisance, and that Ordinance No. 409 was unreasonable and void, and asking to enjoin such construction. On the 21st of June, 1901, the city council passed an ordinance repealing Ordinance No. 409, and soon thereafter, by another ordinance and resolution, ordered the railway company to move its track from the side to the middle of the street, and in such reconstruction to make the surface of its road and track conform to the grade of the street, and in such manner as would permit the passage of teams over and across the same. On June 29, 1901, the railway company began its action, the second above entitled, making the city, its mayor and council, and Snouffer defendants, setting up its alleged rights under Ordinance No. 409 and under the original franchise granted to the motor line, and asking that its right to construct its track in accordance with the terms of said ordinance be established and confirmed, and that defendants be enjoined from interfering therewith. By answer and crosspetition setting up the facts heretofore stated the city asked a decree requiring the railway company to move its tracks to the middle of the street, and to place the same upon the grade of the street in accordance with its order last above mentioned. All the issues taken upon these various demands were consolidated for trial. The decree of the district court denied the relief asked by the railway company, and dismissed its petition, and ordered the company to place its tracks in the middle of the street, and to do the paving between the rails and one foot on either side of the tracks. The railway company appeals. This tedious statement, condensed from the pleadings, which make over 80 pages of printed matter, has seemed neces

sary to a fair understanding of the several claims of the parties and the manner in which their alleged rights have had origin.

1. In its original pleading the railway company alleged that prior to the vesting of any right in itself the highway between Cedar Rapids and Marion was at all points 100 feet wide, and that at the time its line of road was located the highway at the point involved in this litigation was of the uniform width of 120 feet or more, and that its track was located thereon under the act of the legislature hereinbefore referred to. Subsequently this allegation was withdrawn, and it was alleged that, the dedication of the adjacent owners not being accepted by the county, the true width of the street was but 66 feet, and that the right of way occupied by the company was derived primarily by grant from the owners as a right of way over private property. This proposition cannot be sustained. It is quite clear that when the project of constructing the railway was first conceived all parties concerned, relying upon the voluntary action of the owners of abutting lands in dedicating or attempting to dedicate the additional width to the use of the public, believed and understood that the highway at this point was 120 feet wide and that it was "at all points" of the route between the two cities not less than 100 feet wide. Evidently on the theory that the consent of the abutting owners was all which was necessary to authorize the use of the street for the railway, the corporation obtained such consent in writing. The language employed in the instrument is very significant: "We, the undersigned property Owners on the boulevard between Cedar Rapids and Marion, hereby consent, grant, and assign right of way for the purpose of a street railway between said cities of Cedar Rapids and Marion on and upon said boulevard," etc. As illustrating the force of the words "on and upon" in this connection, see Heath v. Railway Co., 61 Iowa, 14, 15 N. W. 573. This writing can be reasonably interpreted and explained upon no theory except the recognition of the boulevard as a public street by all the parties to the transaction. Thereafter, and while the railway was yet in the course of construction, this court had occasion to decide that, in the absence of statute, the occupation of a street by a railway operated by motor power is unauthorized. Stanley v. City of Davenport, 54 Iowa, 463, 2 N. W. 1064, 6 N. W. 706, 37 Am. Rep. 216; Stange v. Railroad Co., 54 Iowa, 669, 7 N. W. 115. Stimulated, no doubt, by these decisions, resort was had to the legislature. which established and confirmed the right of this railway company to the use of the boulevard by enacting that "any street railway company now or hereafter organized, * for the purpose of extending its railway beyond the limits of such city or town, may locate, build, and operate, either by animal or motive power, its road over and along any