City of Detroit v. Ft. Wayne & B.I. Ry. Co.
| Decision Date | 28 April 1893 |
| Citation | 54 N.W. 958,95 Mich. 456 |
| Parties | CITY OF DETROIT v. FT. WAYNE & B. I. RY. CO. |
| Court | Michigan Supreme Court |
Original petition for mandamus by the city of Detroit to compel the Ft. Wayne & Belle Isle Railway Company to comply with the conditions in an ordinance enacted by the city. Writ issued.
John J. Speed, for relator. Edwin F. Conely, for respondent.
Respondent by virtue of an ordinance adopted in 1865, is operating a street railway in the city of Detroit, and this is an application for a mandamus to compel the said company to comply with the provisions of an ordinance enacted in January, 1893, requiring it to "issue and sell, by its conductors, or their duly-authorized agents, to persons applying therefor, upon each and every car operated by said company within the limits of the city of Detroit, tickets, to be good for transportation over the entire route of said company, or any portion thereof, traveling continuously either way, between" certain hours, at the rate of 8 tickets for 25 cents. The ordinance contains separate sections making each day's neglect to comply therewith an offense punishable by fine, and providing for the collection of such fine in an action at law. Respondent as assignee of the Ft. Wayne & Elmwood Railway Company, is operating a street railway under an ordinance passed January 31, 1865, and the amendments thereto since enacted. The rate of fare was originally fixed at 5 cents, but by an amendatory ordinance passed in 1889 it was provided that between certain hours said company should issue and sell tickets at the rate of 8 tickets for 25 cents. Respondent accepted that ordinance, as it had those previously enacted. It, however refuses to accept the ordinance enacted in January, 1893, or to comply with its terms. It answers that such tickets are kept for sale at certain places; that there are other street-railway companies operating railways within the limits of the city of Detroit, not regulated in respect of tickets by this or any other ordinance, and sets forth the following reasons why it should not be compelled to comply with the provisions of the ordinance: (1) The company is furnishing the tickets in reasonable quantities and in reasonable places. (2) The ordinance is illegal and void in this: (a) That the common council of the city of Detroit has no authority to pass any such ordinance; (b) that the relations of the city of Detroit with the respondent are of a contractual nature, and the same cannot be, in this regard enforced by a penal ordinance; (c) that the ordinance seeks to regulate the internal and business affairs of the respondent; (d) that the ordinance is penal, and invalid, because it undertakes to select one individual and punish him for a violation of it; (e) that the ordinance is unequal in its operation; (f) that the ordinance is not a proper exercise of the police power delegated to the municipality.
The Ft Wayne & Elmwood Railway Company was organized in July, 1865, under chapter 94 of Howell's Statutes. Said act was subject to amendment, and in 1867 the following section [1] was added thereto: "All companies or corporations formed for such purpose shall have the exclusive right to use and operate any street railways constructed, owned, or held by them: provided, that no such company or corporation shall be authorized to construct a railway under this act through the streets of any town or city without the consent of the municipal authorities of such town or city, and under such regulations and upon such terms and conditions as said authorities may from time to time prescribe: provided, further, that after such consent shall have been given and accepted by the company or corporation to which the same is granted, such authorities shall make no regulations or conditions whereby the rights or franchises so granted shall be destroyed or unreasonably impaired, or such company or corporation be deprived of the right of constructing, maintaining, and operating such railway in the street in such consent or grant named, pursuant to the terms thereof." The ordinance of 1865, under which said company began operations, contained the following reservation, which is still in force: "It is hereby reserved to the common council of the city of Detroit, the right to make such further rules, orders, or regulations as may from time to time be deemed necessary to protect the interest, safety, welfare, or accommodation of the public in relation to said railway." In the absence of this reservation in the ordinance, it could not be said that the rights and franchises of the respondent are destroyed or unreasonably impaired by...
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