Michigan Towing Ass'n v. City of Detroit

• Decision Date: 17 July 1963
• Docket Number: No. 90,90
• Parties: MICHIGAN TOWING ASSOCIATION, INC., a non-profit corporation, its individual and corporate members, and Walter J. Kraft, Jr., d/b/a Kraft Towing Service, a sole proprietorship, Plaintiffs and Appellees, v. CITY OF DETROIT, a municipal corporation, Louis C. Miriani, Mayor of the City of Detroit, Michigan, and the Detroit Police Department, an agency of the City of Detroit, Defendants and Appellants.
• Court: Michigan Supreme Court

Page 709

122 N.W.2d 709

370 Mich. 440

MICHIGAN TOWING ASSOCIATION, INC., a non-profit corporation, its individual and corporate members, and Walter J. Kraft, Jr., d/b/a Kraft Towing Service, a sole proprietorship, Plaintiffs and Appellees, v. CITY OF DETROIT, a municipal corporation, Louis C. Miriani,

Mayor of the City of Detroit, Michigan, and the

Detroit Police Department, an agency of

the City of Detroit,

Defendants and Appellants.

No. 90.

Supreme Court of Michigan.

July 17, 1963.

Robert Reese, Corporation Counsel, Robert D. McClear, Asst. Corporation Counsel, Detroit, for appellants.

William B. Elmer, East Detroit, Mihelich, Elmer & Dank, East Detroit, of counsel, for appellees.

Before the Entire Bench.

KELLY, Justice.

Plaintiffs filed a bill of complaint against the city of Detroit, its mayor, and police department, on June 9, 1960, alleging that on November 25, 1958, the common council adopted an ordinance providing:

'No disabled motor vehicle shall be towed on any expressway between the hours of 6 a. m. and 9 a. m. or between the hours of 3 p. m. and 7 p. m., except that any vehicle disabled on an expressway during such hours may be towed to the nearest exit ramp and thence to the surface streets.' (Ordinance No. 348-F.)

Plaintiffs further alleged that defendants 'have attempted to enforce and threaten to attempt to enforce said ordinance'; 'that said ordinance unjustly and arbitrarily discriminates against plaintiffs and other persons and corporations providing towing services for disabled vehicles' and 'that said ordinance unjustly, arbitrarily and purposelessly hinders and prevents plaintiffs from engaging in a lawful and useful business'; and requested the court to restrain and enjoin defendants from enforcing said ordinance.

Following trial, the Wayne county circuit judge rendered an opinion finding that:

'The evidence is undisputed and I find that prohibition of use of the expressways between the hours of 6 a. m. and 9 a. m. and between the hours of 3 p. m. and 7 p. m., a total of 7 hours, imposes a substantial burden upon plaintiffs by materially increasing the cost of their operation and by substantially increasing the length of time necessary for them to traverse the city by using streets other than the limited access expressways. * * *

'The ordinance is therefore invalid as being outside the power of the city to enact. It is also invalid because on the record as made it bears no reasonable relationship to traffic safety or to promoting the free flow of traffic within the city. An injunction may issue as prayed.'

Plaintiff's witnesses are leaders in the towing business in the Detroit area, rendering service for individuals, insurance companies, and commercial accounts and 5 of them are Michigan Towing Association members. They emphasized that their equipment was of the best, making it possible for them to stop without swerving and with the same dispatch as a passenger car; that they had not been involved in expressway accidents, and that they had received certificates from the Michigan Public Service Commission.

Plaintiffs' witnesses drew a sharp line of distinction between their experience and their equipment and ability to tow safely and that of other operators among the 500 who are engaged in towing in the metropolitan area.

Mr. Fobar, president of Michigan Towing Association, testified:

'Q. * * * Isn't this what you asked the council to do, to let the ordinance be effective against every tow truck except the 5 people in the city of Detroit that belonged to your Association?

'A. No, I wouldn't say it that way, sir. I would say it this way, that if the city of Detroit, and I can appreciate their thoughts along the use of the expressways by some of these towing vehicles, especially like what is used by junk yards, they are nothing but a hazard on the street regardless of whether they use the expressways or not to my way of thinking, I wouldn't even own a piece of equipment like that, that I can appreciate the city wanting to keep them off because they are definitely a hazard, but we feel that we shouldn't be penalized for that sort of thing, in suggesting that the ordinance, as far as we are concerned would be okay if we were permitted to use it, just the certificated carriers, not only in Detroit, but in the state you have to come through the city of Detroit, they also have the--should have the right to operate. They already have the right from the state which they shouldn't be restricted.'

Walter J. Kraft, Jr., testified that he had been in the towing business since 1945, and during that period has transported, by towing over 65,000 vehicles. He further testified 'Q. In your use of the expressway, either empty or with a vehicle, a disabled vehicle, have you seen other wreckers towing vehicles?

'A. Yes, I have.

'Q. In your opinion, are they a hazard to traffic?

'A. They are.

'Q. In your opinion, is the ordinance as to them a good ordinance?

'A. For the people that don't know how to tow a car safely, through ignorance, I would say the ordinance is wonderful.'

Plaintiffs' witnesses admitted that the ordinance did not prevent them from operating their towing businesses, but stated that it created an inconvenience. The president of the Association, Mr. Fobar, said:

'Yes, it does, it takes longer. For instance, if we are crossing town there can be a variation there from anywheres from a half hour to an hour; and, naturally, that makes quite a bit more cost to me, to my driver, by my drivers, and so forth, on top--and besides that, it eliminates the being able to take care of that many more calls because of the time involved in a day's period, without going into overtime and so forth. * * *

'It (the ordinance) is an inconvenience. I mean, it takes a lot longer. * * *

'Q. Well, then, I understand your principal complaint is that it is inconvenient because it takes more time?

'A. More time; naturally, it is more cost.'

Defendants established the very important part the 23 miles of State trunk line expressways within the city of Detroit played in the vast Michigan expressway system by proving that:

1) At the time the suit was heard there were 23.3 miles of expressway in the city of Detroit with an average of 476,123 vehicles daily load, and with an annual 806 million vehicle miles;

2) The designed capacity for these expressways was 1,500 vehicles per lane per hour, but during the 6 a. m. to 9 a. m. period and the 3 p. m. to 7 p. m. period, at times, traffic density increased to 2,144 vehicles per lane per hour;

3) During 1960 there were 2,793 expressway accidents, 1,390 of which occurred during 6 a. m. to 9 a. m. and 3 p. m. to 7 p. m. in contrast to the 1,403 occurring during the other 17 hours of the day;

4) 78% of the expressway accidents were rear end collisions, in contrast to surface streets where rear end collisions accounted for only 45% of the total accidents.

Mr. LeRoy, traffic control engineer in charge of the control division, which division superintends the operation and regulation of traffic, testified that he recommended the adoption of the ordinance because of the 'very high density flow' during rush hours, when the moving of disabled vehicles, 'particularly those visibly disabled,' on the expressways created 'gawking or rubbernecking on the part of other vehicles or other drivers * * * tended to slow up, resulting in congestion, rear end accidents and things of that sort'; that he recommended a 24-hour prohibition be adopted at first, but, after conference with the Michigan Towing Association, it was changed to the present 7-hour restriction; that the restriction was 'felt necessary under those conditions where the utmost attention to driving was required.'

Mr. Polkinghorn, third deputy commissioner and director of traffic, testified:

'One of the big problems in police control, one of the big problems that we have is supervising the activity of drivers on the expressway, is to eliminate any type of distraction that might present itself there. * * * 'Our traffic has increased on the expressway about 30% so today we are practically 90% overloaded, I believe, as far as the volume is concerned.

'Then, this, then, in the interest of public safety, part of the responsibility of my position with the city of Detroit, is to try to eliminate those things and those acts or those types of distracting activity in order to ensure the safer, expedient transportation.

'So, I say that this, at 25 to 30 miles an hour, and this at 50 to 55 miles an hour, or maybe even 40 miles an hour in rush hour, because we don't go as fast during rush hour because of the increased volumes, it is the opinion of the police department that the elimination of any distracting situation is part of our job and this is what we try to do in supporting the petition of the streets and traffic, and I think we were a joint petition in asking that the tow trucks not be allowed to drive through 24 hours a day.

'I stood at the common council, I requested a 24 hour prohibition of trucks going all the way through the city of Detroit, that is, starting from the westerly limits and going to the easterly limits, or any part thereof.

'Now, during that council session, represented, I believe, by you, sir, the towing industry representatives said that they would like to at least be able to haul at night and during the base period of the day. We made this concession over my objection. I still think they should be--and it is my opinion--they should be prohibited 24 hours a day, and I think that being prohibited from operation of this type during rush hours is a fair proposition, in our opinion.'

Mr. Weimer, of the Detroit police department testified that he is in charge of 34 patrolmen who patrol the expressways; that he also travels and patrols the expressways, and said:

'Q. And have you seen accidents occur on the highways?

'A. I have. * * *

'Q. What did you see the people, the...