Grand Rapids, E.L. & P. Co. v. Grand Rapids, E.E.L. & F.G. Co.

• Decision Date: 09 January 1888
• Citation: 33 F. 659
• Parties: GRAND RAPIDS E.L. & P. CO. v. GRAND RAPIDS E.E.L. & F.G. CO. et al.
• Court: U.S. District Court — Western District of Michigan

33 F. 659

GRAND RAPIDS E.L. & P. CO. v. GRAND RAPIDS E.E.L. & F.G. CO. et al.

United States Circuit Court, W.D. Michigan, Southern Division.

January 9, 1888

T. J O'Brien and J. H. Campbell, for defendant, on motion to dissolve the injunction.

Const Mich. Art. 4, Sec. 38, provides that the legislature may confer on cities such powers of a local, legislative, and administrative power as they see fit. Art. 15, Sec. 13, gives the legislature power to incorporate cities. Art. 15, Sec 13, provides that corporations may be formed under a general law, and that laws pursuant to this section may be repealed altered, and amended. Grand Rapids was incorporated under a special law. Complainant was incorporated under Public Acts 1875, (with amendments of 1881, 1882,) 1 How.St.c. 124, Secs 4127-4161. The charter of Grand Rapids March 29, 1877, tit. 3, Sec. 10, gave the council power to make, alter, and repeal ordinances for (25) regulating the lighting streets and alleys, also (35) general care of the streets, (36,) lighting public lamps, and their erection, (title 6, Sec. 1,) supervision of streets, highways, etc., and the repairing, cleaning, and altering of the same. The city had no power thereunder to grant exclusive use of the streets for the purposes stated. It had only (1) the powers directly granted; (2) those necessarily implied; (3) those indispensable to the proper purposes of the corporation. 1 Dill.Mun.Corp. § 89, and cases cited; Detroit v. Blackeby, 21 Mich. 84. The legislature has paramount authority over the public ways. 2 Dill.Mun.Corp. §§ 656, 680, and cases cited. The city could confer no greater power than it had, and to give must have exclusive control of the streets. East Hartford v. Bridge Co., 10 How. 511; Minturn v. Larue, 23 How. 435; Harrison v. State, 9 Mo. 530; McEwen v. Taylor, 4 G.Green, 532; Wright v. Nagle, 101 U.S. 796. The city had no express exclusive control of the streets. It was not implied. In Grand Rapids v. Whittlesey, 33 Mich. 109, the provisions of the charter of 1871, relating to the matters in controversy, were substantially as now. The court held their control of the streets was that given usually to cities. In Gale v. Kalamazoo, 23 Mich. 344, the trustees gave Gale a contract to erect a market house, with an agreement that there should be no other; held invalid. Wright v. Nagle, 101 U.S. 791: Held that an inferior court, which granted exclusive privileges for ferries and bridges over certain rivers, had no power to do so. In Minturn v. Larue, 23 How. 435, the city of Oakland had under its charter power to make and regulate bridges, etc., but the court held that as the grant did not express the intent of the legislature to vest their exclusive power over the subject in Oakland, a grant of exclusive right of ferry to complainant was ultra vires. See Railroad Co. v. Railway Co., 24 F. 306, deciding an exclusive grant of streets for a horse-railroad void; also, Gas Co. v. City of Saginaw, 28 F. 529, holding the exclusive right to manufacture gas void; also, State v. Gas Co., 18 Ohio St. 262, and Gas-light Co. v. Gas Co., 25 Conn. 19. To the same effect, see Chicago v. Rumpff, 45 Ill. 90, and Railway Co. v. Railway Co., 79 Ala. 465. In City of Brenham, v. Water Co., (Tex.) 4 S.W.Rep. 143, the city had the power to contract and to provide the city with water. A water company was organized under the general law, and the court held a grant of exclusive right to furnish water by an ordinance of the city was ultra vires, adopting 1 Dill.Mun.Corp. § 89. The following authorities sustain the doctrine that unless the exclusive power is expressly given to the city, it cannot confer it: Logan v. Pyne, 43 Iowa, 524; Harrison v. State, 9 Mo. 526; Davenport v. Kleinschmidt, (Mont.) 13 P. 249; Railroad Co. v. Railroad Co., 12 F. 308. In Water Co. v. Hydraulic Co., 10 Atl.Rep. 170, the court sustained an exclusive grant by a city because confirmed by the legislature. State v. Mayor, etc., 3 Duer. 119, the court held that the city charter did not give, in express terms, the power to grant the right to build a horse-railway on Broadway, and that its existence could not be implied. See Railroad Co. v. Railroad Co., 10 Wall. 52; Gas Co. v. Middletown, 59 N.Y. 228; Fertilizing Co. v. Hyde Park, 97 U.S. 659; Appeal of Gas Co., 4 Atl.Rep. 733; 2 Dill.Mun.Corp. § 692, and cases cited; 1 Dill.Mun.Corp. § 362, and cases cited; Cooley, Const. Lim. 207. Of the cases cited by complainant Dillon, (Vol. 2, Sec. 695) says, of Gas-light Co. v. Gas Co., 25 Conn. 19, that however it may be as to the power of the legislature, to grant exclusive privileges, a municipal corporation cannot, unless expressly given to them or necessarily implied, citing People v. Bowen, 30 Barb. 24; State v. Gas Co., 18 Ohio St. 262; Slaughter-house Cases, 16 Wall. 36. The court, in City of Quincy v. Bull, 106 Ill. 337, did not pass on the point, and in Smith v. City of Newbern, 70 N.C. 14, held the city could build a market. In Grant v. City of Davenport, 36 Iowa, 396, the legislature gave the city a right to make an exclusive contract. In Gas Co. v. City of Des Moines, 44 Iowa, 505, the court did not pass on the question of exclusive privileges. In Brown v. Duplessis, 14 La.Ann. 842, the city sold the right to use the streets for a horse-railroad for a certain number of years, and the court could not say it was an abuse of power. In City of Louisville v. Weibee, 1 S.W.Rep. 605, the court held that by an exclusive contract to remove dead animals for one year, with option of renewal, the city did not surrender her right to control the public health, and must perform her contract. The case of Costar v. Brush. (1841,) 25 Wend. 628, sustaining an exclusive grant of ferry privileges is founded upon a doctrine rejected by federal and state courts. In Water-Works Co. v. Atlantic City, 39 N.J.Eq. 367, the court held that the exclusive power given was founded on the franchise held by the company from the legislature. In Railroad Co. v. Railway Co., 33 N.W. 610, the council were to 'authorize or forbid' horse-railway companies, and the court held that an exclusive privilege for 30 years could be given if a larger and better service could thereby be obtained.

Eugene H. Lewis, for defendant.

The power given the city to grant a privilege to use the streets for wires and poles did not necessarily imply exclusive privilege, and does not come under the rule of Jones v. Richmond, 18 Grat. 517, where the charter of the city of Richmond gave power to pass by-laws 'for peace, comfort, and safety,' and the city counsel, at the time of evacuation, fearing disorder, destroyed all liquors. The city had the power to 'regulate the lighting' of the streets; the ordinance deprives them of that power. The legislature of Maryland, in 1797, gave the corporation of Gorgetown power to grade and level the streets. In Goszler v. Corporation, 6 Wheat. 593, the plaintiff owned certain lots upon a street, which had been graded under an ordinance establishing the grade forever. Chief Justice MARSHALL held that a later ordinance changing the grade was valid, and that the corporation could not abridge its own legislative powers. 2 Dill.Mun.Corp. § 685. The charter of Grand Rapids confers the power to repeal its ordinances. The act granting the privileges to the defendant repealed the exclusive privilege given complainant. The ordinance of a municipal corporation must conform to the statute giving the corporation power to pass the ordinance. 1 Dill.Mun.Corp.§ 91; Petersburg v. Metzker, 21 Ill. 205; Thompson v. Schermerhorn, 6 N.Y. 92. The right to repeal bears close analogy to the provision in the constitution of Michigan, that all laws creating corporations may be amended, altered, or repealed. In Water-Works v. Schottler, 110 U.S. 347, 4 S.Ct. 48, the court held that the provision in the constitution 'that all special or general acts passed pursuant to this section may be altered, from time to time, or repealed,' should be considered in connection with the charter granted. See, to the same effect, Nazro v. Insurance Co., 14 Wis. 319; Railroad Co. v. Marsh, 17 Wis. 13; Chapin v. Crusen, 31 Wis. 209; Railway Co. v. Board Sup'rs, 35 Wis. 257; Miller v. State, 15 Wall. 478. In none of these cases was the language in the constitution in favor of the reservation of the right to repeal stronger than the language in the charter.

Blair, Kingsley & Kleinhaus, for complainant.

The case involves a federal question. Murray v Charleston, 96 U.S. 440; Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064; Wright v. Nagle, 101 U.S. 791; Gas-Light Co. v. City, 28 F. 529; Transportation Co. v. Parkersburg, 107 U.S. 691, 2 S.Ct. 732. If the ordinance is valid, it is the duty of the court to issue an injunction. Railway Case, 23 Cent.Law J. 467; Gas Co. v. Dwight, 29 N.J.Eq. 242; Water Co. v. Rivers, 115 U.S. 674, 6 S.Ct. 273. The granting exclusive rights to ferries, railroads, water, or gas companies is not a monopoly. Cooley, Torts, 277; People v. Marx, 2 N.E.Rep. 34, note; Landing Co. v. Slaughter-House Co., 111 U.S. 746, 4 S.Ct. 652; Water-Works Co. v. Water-Works Co., 7 Sup.Ct.Rep. 405. The legislature had the right to give the power claimed, and could do so by the agency of a municipal corporation, (State v. Gas-Light Co., 18 Ohio St. 293; Maybury v. Gas-Light Co., 38 Mich. 154; Murray v. Charleston, 96 U.S. 440;) either by express terms, or by direct and necessary implication, (State v. Gas-Light Co., 18 Ohio St. 293.) A corporation for municipal purposes is not a mere privilege, but an absolute right. People v. Hurlbut, 24 Mich. 108; Cooley, Const. Lim. 188, 189; Ex parte Mirande, 14 P. 888; People v. Common Council, 28 Mich. 237. In exercising the portion of the pure legislative authority which...