City of Detroit v. Detroit & Howell Plank Road Co.

• Decision Date: 07 April 1880
• Citation: City of Detroit v. Detroit & Howell Plank Road Co., 5 N.W. 275, 43 Mich. 140 (Mich. 1880)
• Parties: CITY OF DETROIT v. DETROIT & HOWELL PLANK-ROAD COMPANY.
• Court: Michigan Supreme Court

5 N.W. 275

43 Mich. 140

CITY OF DETROIT v. DETROIT & HOWELL PLANK-ROAD COMPANY.

Supreme Court of Michigan

April 7, 1880

The effect of the act of 1879, providing that plank-road companies shall not, without the consent of the local authorities, keep or maintain a tollgate within the limits of any municipality, when applied to the Detroit & Howell Plank-Road, in Detroit, being to deprive them of the right to collect tolls upon some two and one-half miles of their road is, as applicable to such road, unconstitutional, and mandamus will not lie to compel such company to remove its toll-gate outside of the city limits.

Mandamus.

F.A. Baker and Edwin F. Conely, for relator.

C.A. Kent and G.V.N. Lathrop, for respondent.

COOLEY J.

A mandamus is applied for in this case to compel the respondent to remove beyond the city limits a tollgate located on Grand River street. The questions the application presents are questions of statutory construction and of constitutional law. The respondent was incorporated April 3, 1848, for the purpose of building and maintaining a plank-road from the city of Detroit to the village of Howell, with certain specified branches.

The third section of the act of incorporation provided that the corporation "shall be subject to the provisions of an act entitled 'An act relative to plank roads,' approved March 13, 1848, except so far as otherwise provided in this act." The fifth section was as follows: "This act shall be and remain in force for the term of 60 years from and after its passage; but the legislature may, at any time, alter, amend or repeal this act by a vote of two-thirds of each branch thereof; but such alteration, amendment or repeal shall not be made within 30 years of the passage of this act, unless it shall be made to appear to the legislature that there has been a violation by the company of some of the provisions of this act: provided, that after said 30 years no alteration or reduction of the tolls of said company shall be made during its existence, unless the yearly net profits of said company over and above all expenses, shall exceed 10 per cent. on the capital stock invested, provided there be no violation of the charter of said company." Laws 1848, p. 398.

This act of incorporation was one of a considerable number passed by the same legislature, all very short, and doing little beyond fixing the line of the proposed road, and the period of corporate existence, but referring, for all other directions, to the "Act relative to plank-roads," subject to the provisions of which they were all made. That act prescribed a method of organization, enumerated the corporate powers and franchises, provided for an annual report to the secretary of state, prescribed rates of toll, and limited the imposition of taxes. Laws 1848, p. 59.

Several sections of the general act of 1848 were amended in 1853, and several new sections were added. One of the new sections was as follows: "Any plank-road company organized under the provisions of this act shall be subject to the provisions of all amendments made, or to be made, thereto, whenever the assent of any such company, certified by the president and secretary thereof, to the provisions of such amendments shall be filed in the office of the secretary of state." Laws 1853, p. 64. The respondent filed its assent to these amendments, and no question is made of its being bound thereby.

In 1879 a further section was added to the general act of 1848, as follows: "No plank-road company, organized subject to the provisions of this act, shall, without the consent of the local authorities, keep or maintain a toll-gate within the present or future corporate limits of any city or village; and no such company shall collect toll for any portion of its road, within such limits, on which a pavement is maintained by such municipality. The assent of any such company to this amendment shall not be necessary in order to make this act applicable to such company. And if any plank-road company or companies in this state are, at the time of the passage of this act, maintaining its toll-gate within the present corporate limits of any city or village, said plank-road company or companies are hereby required to discontinue and remove said toll-gate beyond the limits of said city or village within sixty days after they are notified by the municipal authorities to so discontinue or remove the same." Gen.Laws 1879, p. 197.

It is upon this last amendment that the questions in this case arise. The toll-gate of respondent on Grand River street is within the existing corporate limits of the city of Detroit, and the city authorities notified the respondent to discontinue and remove the same more than 60 days before this proceeding was instituted. The respondent denies the validity of the act of 1879, and refuses to conform to it. It is admitted that but for the act of 1879 respondent might lawfully maintain the gate where it is, the city having been extended to embrace it since the gate was located. Chope v. Detroit & Howell P.R. Co. 37 Mich. 195.

The effect of this legislation, if valid, would be to take from respondent about two miles and a half of the road upon which it now collects toll. It is not pretended that this is done by reason of any forfeiture done or suffered by the respondent, and, if it were, a judicial finding would be necessary. Flint, etc., Plank-Road Co. v. Woodhull, 25 Mich. 99. Nor is it claimed that the act of 1879 was passed as a regulation of police. It would probably be conceded that it goes quite beyond the competency of an act of mere regulation, and that it must be sustained, if at all, as an act passed in the exercise of that complete power to amend and repeal which was reserved in passing both the general act of 1848 and the charter of the respondent. The city relies upon it as an exercise of that power, and not otherwise.

The respondent claims that the act of 1879 is unconstitutional for many reasons; one, which is especially relied upon, being that it is inconsistent with the act of 1853, by one of the provisions of which subsequent amendments were to be binding on companies which were subject to the provisions of the general plank-road act, when they should file with the secretary of state their assent thereto. That section, it is insisted, constitutes a contract between the state and the companies, prescribing, while it stands, the terms and the only terms on which companies can be bound by amendments, and is irrepealable except as to such companies as may assent. The city insists, on the other hand, that so long as a general power to amend and repeal is reserved, all amendments must themselves be amendable and repealable, and that inconsistent legislation does repeal them. If the act of 1879, in what it proposes to accomplish, is fairly within the scope of any legitimate power to amend charters, the difficulty raised upon the act of 1853 would probably not be serious. An examination of that act will show that its provisions were amendments for the ease and advantage of plank road companies, enlarging their powers and capacities, decreasing the taxes to which they would be liable, extending the time within which they might complete their roads, relieving them of penalties, and so on, and that the consent of corporations thereto could not have been required by way of assent to onerous conditions as a consideration for favors conferred.

On the contrary, the state could have passed and enforced the act without the provision for assent, and that provision can only be understood as leaving it optional with companies to claim the benefits of the act of 1853 as their interests might seem to dictate. But, so far as that act undertook to limit the power to amend in the future--if it can be understood as having done so--it must have been wholly inoperative. A legislative declaration, embodied in a particular law, that it shall be binding only on those who may assent to it, may limit the scope of that law, but a declaration that any future law on the same subject shall be thus restricted must be void. Bloomer v. Stoller, 5 McLean, 158, 161; Kellogg v. Oshkosh, 14 Wis. 623. Legislators cannot thus bind the hands of their successors where the elements of...