Detroit, Wyandotte & Trenton Transit Co. v. City of Detroit

• Decision Date: 03 October 1932
• Docket Number: No. 96.,96.
• Citation: 244 N.W. 424,260 Mich. 124
• Court: Michigan Supreme Court
• Parties: DETROIT, WYANDOTTE & TRENTON TRANSIT CO. et al. v. CITY OF DETROIT et al.

260 Mich. 124

244 N.W. 424

DETROIT, WYANDOTTE & TRENTON TRANSIT CO. et al.

v.CITY OF DETROIT et al.

No. 96.

Supreme Court of Michigan.

Oct. 3, 1932.

Appeal from Circuit Court, Wayne County, in Chancery; Glenn C. Gillespie, Judge.

Suit by the Detroit, Wyandotte & Trenton Transit Company and others against the City of Detroit and others. From a decree dismissing the bill of complaint, the plaintiffs appeal.

Reversed, and injunction issued, if necessary.

Argued before the Entire Bench.

Edward N. Barnard, of Detroit, for appellants.

Clarence E. Wilcox, Corp. Counsel, and Clarence E. Page, Asst. Corp. Counsel, both of Detroit, for appellees.

FEAD, J.

Plaintiffs appeal from a decree declaring valid the following ordinance of the city of Detroit and dismissing bill of complaint filed to restrain its enforcement against them.

‘Sec. 1. No person, firm, copartnership or corporation shall operate or cause to be operated upon any street, avenue, boulevard or other public place within the limits of the City of Detroit any jitney, so-called whether said jitney operates wholly within the city limits of Detroit or from some point within the city limits of Detroit to some point outside of Detroit, or, from some point outside of Detroit to some point within the city limits of Detroit, or otherwise.

‘Sec. 2. For the purpose of this ordinance a jitney shall be defined to mean any motor propelled vehicle designed to carry not to exceed seven persons (other than a taxicab or public vehicle which are hired by the hour) which is operated on the streets, avenues, boulevards or other public places of the City of Detroit, as a public carrier affording service similar to that of a city, suburban or interurban street railway, for the service of which fares are charged or collected or received.'

For seven years prior to the adoption of the ordinance, plaintiffs operated about 100 jitneys, on a three-minute service, in transporting passengers for hire between points in Detroit and certain neighboring cities. It had a terminus in the downtown district of Detroit, but it did no local business in the city. It took on and discharged passengers at any desired street crossing. Its route was on Fort street, a busy thoroughfare, also substantially served by motorbusses and by street railway, which extended to some of the cities served by plaintiffs. The case was heard before the enactment of Acts Nos. 212 and 312, Pub. Acts 1931. As it involves an important public question, this court requested briefs upon the effect of state statutes in order that the present validity of the ordinance and the propriety of an injunction might be determined. This raised issues not presented to or passed upon by the circuit judge.

The city claims power to adopt the ordinance under the Constitution, art. 8, § 28: ‘No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the consent of the duly constituted authorities of such city, village or township; nor to transact a local business therein without first obtaining a franchise therefor from such city, village or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.'

It is conceded that plaintiffs operated public utilities. But they did not need a franchise from the city because they did not use the streets for wires, poles, pipes, tracks, or conduits, nor transact a local business. The first part of the section confers no authority to prohibit operation of plaintiffs' vehicles on the street.

The power to adopt the ordinance, if any, must be found in the right of the city to reasonable control of its streets.

This provision was vigorously debated in the Constitutional Convention. Until late in the deliberations the word ‘reasonable’ did not appear in the section. The delegates feared that, as submitted, the right would be construed to deprive the state of control of highways in municipalities. Debates, 1405, 1408. In the address to the people, submitting the proposed Constitution for adoption, the debates and purpose of the word ‘reasonable’ were summed up: ‘The word ‘reasonable’ was inserted to place a limitation upon the authority cities, villages and townships may exercise over the streets, alleys, highways and public places within their corporate limits. And it was pointed out in the debates that without the word ‘reasonable’ or a similar qualification the section would practically deprive the state itself of authority over its highways and public places.' Page 1433.

The city stresses language in Melconian v. City of Grand Rapids, 218 Mich. 397, 188 N. W. 521, and Red Star Motor Drivers' Ass'n v. City of Detroit, 234 Mich. 398, 208 N. W. 602, to the effect that a city may prohibit the use of its streets for gain. The language must be read in connection with the fact that the cases involved carriers...