Anway v. Grand Rapids Ry. Co., No. 93

• Court: Supreme Court of Michigan
• Writing for the Court: FELLOWS
• Citation: 179 N.W. 350,211 Mich. 592
• Decision Date: 30 September 1920
• Docket Number: No. 93,April Term.
• Parties: ANWAY v. GRAND RAPIDS RY. CO. (DIVISION 836, AMALGAMATED ASSOCIATION OF STREET & ELECTRIC RY. EMPLOYES OF AMERICA, Intervener).

211 Mich. 592
179 N.W. 350

ANWAY
v.
GRAND RAPIDS RY. CO. (DIVISION 836, AMALGAMATED ASSOCIATION OF STREET & ELECTRIC RY. EMPLOYES OF AMERICA, Intervener).

No. 93, April Term.

Supreme Court of Michigan.

Sept. 30, 1920.

Appeal from Circuit Court, Kent County, in Chancery; Willis B. Perkins, Judge.

Proceedings by Charles Anway against the Grand Rapids Railway Company for a declaration of the rights of the parties, in which Division 836, Amalgamated Association of Street & Electric Railway Employés of America, intervened as defendant. From a judgment declaring the rights, the intervening defendant appeals. Proceedings dismissed.

Argued before MOORE, C. J., and STEERE, BROOKE, FELLOWS, STONE, CLARK, BIRD, and SHARPE, JJ.

Sharpe, J., dissenting.

[179 N.W. 350]

Ellis & Ellis, of Grand Rapids, for appellant.

Charles E. Ward, of Grand Rapids, for appellee.

Alex. J. Groesbeck, Atty. Gen., and Sheridan F. Master, Asst. Atty. Gen., and Edson R. Sunderland, of Ann Arbor, amici curiae.

Knappen, Uhl & Bryant, of Grand Rapids, for defendant Grand Rapids Railway Co.

William W. Potter, of Hastings, filed a brief on constitutionality of Act No. 150, Public Acts of 1919.

FELLOWS, J.

This is a proceeding instituted in the circuit court for the county of Kent, in chancery, under Act 150 of the Public

[179 N.W. 351]

Acts of 1919, entitled ‘An act to authorize courts of record to make binding declaration of rights.’ The act will be found in the margin.¹

Briefly stated, the bill alleges that plaintiff is employed by defendant street railway, company as a conductor; that he desires to to work more than six dsys in consecutive seven days; he does not claim to have any such contract with defendant; he claims no breach of any contract; he does not allege that defendant has committed, or threatened to commit, any wrong upon him, or that he has any claim, present or prospective, for any damages from defendant; he seeks to have this court advise him whether the defendant will violate the provisions of Act 361, Public Acts 1919, if it should in the future permit him to work more than six days in consecutive seven days. States in the language of plaintiff's brief:

‘The sole question in the case is as to the meaning of Act No. 361 of the Public Acts of 1919. The precise question is: Does that act make it unlawful for a street railway company to allow its motormen or conductors or both to work than six days in any consecutive seven days of twenty-four hours each if the conductors or motormen so desire?’

The defendant railway company answers, admitting the allegations of the bill. Division 836, Amalgamated Association of Street and Electric Railway Employés of America, intervenes. It is not claimed that the rights of any of these parties have been invaded, nor is there threat of invasion of the rights of any one. No damages are claimed, nor is there threat of any damage. The proceeding must rest, and rest alone, upon Act 150. The learned author of this act says of it (54 Am. Law Review, 161):

‘Now for the first time American legislation has definitely committed itself to the principle that an adequate system of remedial law requires courts to offer remedies in advance of the happening or even of the threat of any wrongful act, and to authoritatively advise parties as to what their legal rights may be in the circumstances in which they find themselves.’

And, calling attention to the character of matters to which the act is applicable, he considers eight subdivisions, the first one of which we quote (page 177):

‘A declaration of rights may be had where there is a present possibility of immediately creating a cause of action, as by a demand or refusal, but the parties have not done so, perhaps through reluctance to precipitate a conflict. This is the typical case for a friendly application to the court.’

And the author of this measure in his brief considers the present case a typical one for the application of the act.

Considering the act itself as well as the very able paper by its author in volume 54, American Law Review, 161, under the title ‘The Courts as Authorized Legal Advisors of the People,’ it at once becomes apparent that by the act the courts of this state are made the legal advisers of all seeking such advice, not through their existing opinions in matters which have involved wrongs committed and redressed by such tribunals, but in advance of and infringement of their rights, and breaches of their contracts, and that in advance of any existing controversy that they be advised by a declaration of rights as to what the law is, or will be, in the event of future breaches, future contingencies which may or may not happen. Indeed, this is the essence of the measure. Before this court, with its membership of eight, takes up the work of advising 3,000,000 people, and before the Legislature is called upon to increase the membership of this court so as to efficiently conduct this work, it is well that this court

[179 N.W. 352]

pause long enough to consider, and consider fully, whether the act calls upon us to perform any duties prescribed by the Constitution or to exercise any power therein conferred. At the argument counsel engaged in the case were asked to file briefs upon the constitutionality of the act, the Attorney General was requested to file a brief amicus curiae, and the author of the bill was invited to do likewise. All have complied, and others interested in the measure have favored us with briefs upon the question. All authorities that have been called to our attention in the briefs have been read, together with a large number of others which our independent research has brought to light. It is manifest that all cases examined cannot be discussed within the compass of this opinion, but the eminence of the author of the act, the fact that it was advocated by the legislative committee of the State Bar Association, the zeal of its advocates, prompts us at the expense of prolixity to quote from and cite many of the cases which have been considered.

We do not consider the question of whether the act deprives parties of their constitutional right of trial by jury, nor the question of whether the act offends the ‘due process' clause of the federal Constitution. We do not regard a determination of these questions necessary to the decision of the validity of the act. Authorities upon these questions have been examined to ascertain whether they throw light on the question under consideration. We have examined the decisions of many state courts of last resort, but, as would be expected, have found more aid in reaching our conclusion from the decisions of the federal court of last resort than from any one other source. And in view of the fact that one of the briefs cites and quotes from a paper prepared by one of the professors of one of the country's great universities no less than 14 times, we regard it as proper to remark that we are compelled to accept the final decisions of the United States Supreme Court and the decisions of this or other state courts of last resort as to what the law is rather than the views of able writers of papers as to what it ought to be. We note that the learned professor, who is so frequently quoted, entertains the view that it is the duty of the state through its courts to furnish advice to its citizens rather than to leave them to ‘unauthoritative advice of counsel.’ This adopts the view that ‘the state is everything, the individual nothing.’ Under our government the state does not till our farms, manufacture our automobiles, conduct our great department stores, or do our law business for us. The unfortunate people of one country are at present trying such experiment in government. We are still a government of laws, operating under a written Constitution, and to it rather than to the question of desirability we must look for our power. If such power as we are here asked to exercise under this act is wanting in the Constitution, then this court lacks such power, and the Legislature lacks authority to grant it.

Many cases will be found where courts have solved the problems submitted to them without question as to their power; indeed, that is what we are asked to do in this case, and one of the counsel most strenuously insists that, in view of the fact that none of the parties of record raises the question of the constitutionality of the act, this court ought not to. But it must be borne in mind that the question of the jurisdiction of this court is here involved, and every requirement of public policy impels an early determination of the validity of the act. But, if we had acceded to counsel's request, and, without regard to the validity of the act, had prepared an opinion determining and answering the questions propounded, could it have been successfully contended when the question of power was raised that our determination of this controversy was authority on the question of power? We think not. And so when the question of power is involved we must look for light to those cases which have discussed it rather than to those cases which have decided the questions submitted without regard to the question of power.

This state, in common with the other states of the Union, patterned after the federal Constitution in providing for the division of powers. It is provided in our Constitution:

‘Article IV.

‘Section 1. The powers of government are divided into three departments: The legislative, executive and judicial.

‘Sec. 2. No person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided in this constitution.’

‘Article VII.

‘Section 1. The judicial power shall be vested in one Supreme Court, circuit courts, probate courts, justices of the peace and such other courts of civil and criminal jurisdiction, inferior to the supreme court, as the Legislature may establish by general law, by a two-thirds vote of the members elected to each house. * * *

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