People v. Detroit United Ry.

• Decision Date: 09 November 1903
• Citation: 97 N.W. 36,134 Mich. 682
• Court: Michigan Supreme Court
• Parties: PEOPLE v. DETROIT UNITED RY.

97 N.W. 36

134 Mich. 682

PEOPLE v. DETROIT UNITED RY.

Supreme Court of Michigan

November 9, 1903

Certiorari to Recorder's Court of Detroit; James Phelan, Judge.

Certiorari by the Detroit United Railway against the people to review a judgment subjecting said railway company to a penalty for failing to provide certain brakes for its cars. Judgment affirmed.

Brennan, Donnelly & Van De Mark, Charles D Joslyn, and Henry L. Lyster (Michael Brennan and John J Speed, of counsel), for appellant.

Timothy E. Tarsney, P.J. M. Hally, and Charles E. Love, for the People.

HOOKER C.J.

The defendant is a street railway company, and was convicted and fined in the recorder's court of the city of Detroit for the violation of an ordinance of said city. The cause is here upon certiorari.

There is no doubt of the violation of the ordinance. The cause being tried without a jury, the court determined the question of the reasonableness of said ordinance, which appears to have turned upon questions of fact. Counsel for the defendant say in their brief, that 'there can be but one question for this court to decide; i. e., is it a reasonable regulation to require the defendant company to equip its cars with air or electric brakes'? The railroad was constructed under the statutes existing at different times when different sections were built; the present status of the company being the outcome of various purchases or consolidations, or both. All of said statutes required the consent of the city authorities, and this was given in the various instances. The following reservation of power is contained in such consent, and is applicable to the present case: 'It is hereby reserved to the common council of the city of Detroit the right to make such further rules, orders or regulations as may from time to time be deemed necessary to protect the interest, welfare or accommodation of the public in relation to street railways.' In the same connection should be read sections 6425 and 6447 of the Compiled Laws, viz.:

'All companies or corporations formed for such purpose shall have the exclusive right to use and operate any street railway constructed, owned or held by them. That no such company or corporation shall be authorized to construct a railway under this act through the streets of any town or city without the consent of the municipal authorities of such town or city and under such regulations and upon such terms and conditions as said authorities may from time to time prescribe.'

'Provided further, that after such consent shall have been given and accepted by the company or corporation to which the same is granted, such authorities shall make no regulations or conditions whereby the rights of the franchises so granted shall be destroyed or unreasonably impaired, or such company or corporation be deprived of the rights of constructing, maintaining and operating such railway in the streets, in such consent or grant named, pursuant to the terms thereof.'

'After any city, village or township shall have consented, as in this act provided, to the construction and maintaining of any street railway therein or granted any rights or privileges to any such company and such consent and grants have been accepted by the company, such township, city or village shall not revoke such consent nor deprive the company of the rights and privileges so conferred.'

The ordinance provides as follows: 'Section 1. On and after May 1st, 1902, no street car or cars shall be operated or run on any street, avenue or highway in the city of Detroit, unless the same be equipped with air or electric brakes.' Section 2 provides that no street railway company nor any officers thereof 'shall run or operate, or permit to be run or operated, any car upon or in any street or avenue in said city, unless the same is equipped with air brakes.' Section 3 provides the penalty.

Counsel for the defense introduced testimony tending to show that it had several hundred cars in the city, and that it would cost $350,000 to equip them with the prescribed brakes; that many of such cars were single-truck cars; that it was replacing those as rapidly as it could consistently with double truck cars; that, while said brakes would be useful upon large suburban cars, which make few stops, they are not well adapted to use upon cars which make frequent stops, such as cars run upon city lines exclusively, or to small single-truck cars; that all cars are equipped with sufficient hand brakes, and that they cannot be safely dispensed with; that they are more certain in their action than the brakes prescribed, and consequently safer; that their average efficiency is greater, and that no city is known to have all of its railroad cars equipped with air or electric brakes; that such brakes are in an experimental stage; that they have been repeatedly tried and discarded in cities; and that, if used, they increase the danger of accident, both by reason of the uncertainty of their action when an attempt is made to use them, and the uncertainty in the minds of motormen which brake had better be used in cases of emergency. There was testimony offered in opposition. The object of this ordinance is to compel the equipment of street cars with the means of stopping with certainty and expedition. We may take judicial notice that this is desirable, for we are judicially cognizant of the fact that the use of street cars is necessarily attended by imminent danger to citizens who are upon the highway, as well as passengers. It is contended that this ordinance is invalid--First, because it can be said not to provide for brakes which will tend to lessen danger; second, because its enforcement will require an outlay large in comparison with the benefits which would result from the use of such brakes as are required by it. A large amount of testimony was taken upon both these questions, and this was passed upon by the trial judge, who has held the ordinance valid.

It is past controversy that the city may regulate the conduct of defendant's business to the extent of requiring reasonable safeguards against danger. Nellis, Surface Roads, pp. 206, 208, 219; City v. Mich. Traction Co., 126 Mich. 525, 86 N.W. 130; Detroit v. Ry., 184 U.S. 368, 22 S.Ct. 410, 46 L.Ed. 592; L. S. & M. S. R. R. v. Ohio, 173 U.S. 285, 19 S.Ct. 465, 43 L.Ed. 702; C. & A. R. R. v. Carlinville (Ill.) 65 N.E. 730, 60 L. R. A. 394; and other cases cited in briefs of counsel. Many regulations are permissible, although in all or most instances they involve some limitation on the liberty or burded upon the property of individuals. Sanitary regulations are common, including the abolition of slaughterhouses and other noxious places, and restrictions upon burial. Protection against fire and danger from explosions, the use of highways and speed of vehicles, the regulation of occupations, buildings, etc., are among the many instances where municipal action is upheld. An ordinance, which on its face shows that such end was in contemplation, will ordinarily be presumed to be valid. See 21 A. & E. Enc. of Law, p. 978, and cases cited; Booth on Street Railway Law, � 224; Cooley, Con. Lim. (6th Ed.) p. 241, note; Nellis, Surface Roads, 215. Not only will the burden of proof be upon one who attacks its validity, but the discretion of the council will not be interfered with upon light grounds, or where the regulation can fairly be said to tend toward a better and safer condition.

The ordinance in question punishes the operation of a car not equipped with air or electric brakes. This ordinance is in harmony with the statute (Comp. Laws, � 6280), which for many years has required the equipment of steam passenger cars with air brakes. Before we should say that a similar requirement as to street cars is unreasonable, and therefore invalid, it should be made to appear clearly either that there is no necessity for a more efficient brake than a hand brake upon street cars, or that neither an air nor an electric brake would be such; and if, as is contended, and apparently conceded, the hand brake is not to be dispensed with, it would be necessary to show that a car equipped with both would not be safer than with the hand brake alone.

Counsel urge that the uncontradicted evidence shows that this ordinance is unreasonable. We think not, and, if it might be said that a preponderance of the oral testimony supports that view, we think that would be insufficient to justify us in nullifying the ordinance. We may take judicial notice that atmospheric or vacuum brakes are in general use on passenger trains, that they are common upon freight cars and trains and that they are rarely ineffective. The record shows that they are in use on electric cars of the larger type, both on suburban lines and on city roads. If they were not, it is patent that they could be; and, while counsel contend that they could not be applied to small cars, it has not been satisfactorily proven. It is not improbable that the exact device used on large cars might not be adapted to use on a small one (especially where but one set of trucks is used) without some modification; but that is not shown to be mechanically difficult, and every one knows that such problems are being solved daily in the realm of mechanics. Moreover, there is proof that one or more small cars have been equipped and successfully run with them. The validity of an ordinance cannot be made to depend upon what a trial judge, a justice of the peace, or a jury may conclude from the testimony and opinions of such witnesses as may happen to be brought into court in the first case that arises, where, as in this case, its provisions, when viewed in the light of facts, of which the courts may take judicial notice, are reasonable, and...