City of Flint v. Consumers Power Co.

• Decision Date: 05 September 1939
• Docket Number: No. 29.,29.
• Parties: CITY OF FLINT v. CONSUMERS POWER CO.
• Court: Michigan Supreme Court

290 Mich. 305

287 N.W. 475

CITY OF FLINT

v.CONSUMERS POWER CO.

No. 29.

Supreme Court of Michigan.

Sept. 5, 1939.

Suit by the City of Flint, a municipal corporation of the State of Michigan, against the Consumers Power Company, a Maine corporation, for a declaratory judgment as to defendant's right to conduct its electric business and maintain its equipment in the City of Flint after the expiration of its franchise without first obtaining the consent of the City of Flint to use its streets and alleys. From an order denying defendant's motion to dismiss, the defendant, leave having been obtained, appeals.

Order reversed and petition dismissed.

Appeal from Circuit Court, Genesee County, in Chancery; Philip Elliott, Judge.

Argued before the Entire Bench.

Brownell & Gault, of Flint, and Walter D. Kline, of Jackson, for appellant.

Hymen Hoffman, City Atty., and Lewis Kearns, Asst. City Atty., both of Flint, for appellee.

NORTH, Justice.

Plaintiff, proceeding under Sec. 13903, C.L.1929; Stat.Ann. 27.501, filed a petition in equity to secure a declaration of rights. Defendant moved to dismiss, asserting that a proper cause for a declaration of rights was not alleged in plaintiff's petition and that it appears on the face of the petition the suit was prematurely brought. The circuit judge denied defendant's motion. Leave having been obtained, defendant has appealed.

Defendant is engaged in the public service of furnishing to its customers in the City of Flint electric current for heat, light and power. It is agreed that at the time this suit was started (December 24, 1938), defendant was lawfully carrying on its business under a thirty-year franchise which had its inception December 30, 1908. At that time Act No. 264, P. A. 1905, was a part of the statutory law of Michigan. This act of the legislature authorized under certain conditions and restrictions the use of public streets and alleys by persons, firms and corporations engaged in the manufacture and distribution of electrical current, as is defendant. The basis of asking a decretal declaration of plaintiff's rights is set forth in its petition as follows: ‘That defendant contends, and the plaintiff has been so informed, that it intends to conduct its electric business and maintain its equipment in the City of Flint after the expiration of said franchise without first obtaining the consent of the plaintiff, because of certain inherent rights allegedly vested in the defendant under and by virtue of Act 264, Public Acts of 1905 of the Legislature of the State of Michigan, including the location of underground equipment which is not permitted therein, and as to all of which the plaintiff expressly denies.’

Plaintiff alleges defendant's franchise ‘will expire by its terms on December 29, 1938.’ Hence it appears that this petition for a declaration of rights was filed five days before defendant's franchise expired. At that time there was no controversy between the parties as to defendant's conduct of its business being wholly within its legal rights. Nor is any claim made in plaintiff's petition for need of declaratory adjudication on the ground that otherwise within this five-day period its rights would be jeopardized or impaired. Conclusively under this record, plaintiff could have waited five days before instituting suit and then it would have had an actual issue in praesenti to litigate if defendant took the position plaintiff has alleged in the above quoted portion of its petition, i. e., defendant intended to continue to conduct its business in Flint without first obtaining consent from the city to use its streets, alleys, etc. Under such a record, defendant's motion to dismiss should have been granted.

In determining the circumstances or conditions which would justify instituting a proceedings to obtain a declaratory adjudication of rights, we must be mindful of the purpose which this statutory proceeding is designed to serve. It is definitely settled in this jurisdiction that our statute providing for a declaration of rights ‘does not constitute a court a fountain of legal advice * * *.’ Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673, 229 N.W. 618, 619, 68 A.L.R. 105. Likewise such a proceeding may not be instituted in the absence of an actual controversy. Our statute above cited expressly so provides; and even before such provision was expressly embodied in the statute, that was the holding of this court. Anway v. Grand Rapids Ry. Co., 211 Mich. 592, 179 N.W. 350, 12 A.L.R. 26. Also we have held that a proceedings under this statute is special and ‘is not a substitute for the regular actions * * *.’ Grosse Pointe Shores v. Ayres, 254...