Red Star Motor Drivers' Ass'n v. City of Detroit

• Citation: 210 N.W. 496,236 Mich. 422
• Decision Date: 20 October 1926
• Docket Number: Motion No. 89.
• Parties: RED STAR MOTOR DRIVERS' ASS'N et al. v. CITY OF DETROIT et al.
• Court: Supreme Court of Michigan

236 Mich. 422
210 N.W. 496

RED STAR MOTOR DRIVERS' ASS'N et al.
v.
CITY OF DETROIT et al.

Motion No. 89.

Supreme Court of Michigan.

Oct. 20, 1926.

Suit by the Red Star Motor Drivers' Association and others against the City of Detroit and others. After reversal of a decree for plaintiffs (234 Mich. 398, 208 N. W. 602), a stay was granted which the defendants move to vacate. Stay granted.

Argued before the Entire Bench.

[210 N.W. 496]

Edward N. Barnard, of Detroit, for plaintiffs.

Charles P. O'Neil and Clarence E. Page, both of Detroit, for defendants.

PER CURIAM.

On December 29, 1923, a decree was entered in the circuit court for the county of Wayne in chancery, restraining defendant city and certain of its officers from enforcing the so-called jitney ordinance. Defendants appealed to this court, and the case was here argued January 6, 1926. On April 14 following, this court reversed the decree and sustained the validity of the ordinance, the decision not being unanimous. 234 Mich. 398, 208 N. W. 602. On July 1 we denied a motion for a rehearing. On July 24, a writ of error was issued by the Supreme Court of the United States and the requisite bond was there approved and filed, the writ having been allowed by Justice McReynolds. To this writ return was made August 12. On July 26 a petition for a stay of proceedings was filed in this court. This court being in vacation, the Chief Justice granted the prayer of the petition. We are now asked by the city to vacate such order.

It will not be necessary to pass on the city's contention that the order made by the Chief Justice alone is void, because, if it is a nullity, as contended by the corporation counsel, the application of the plaintiffs for a stay of our decree is before us and the court is now in session and should dispose of it. If this court, as a court, has authority to pass on the question of staying its decree in this case pending decision in the Supreme Court of the United States, it should here and now determine such question without delay. That this court has such power, and that the better practice requires it to exercise it, is settled by the recent case of Cumberland Tel. & Tel. Co. v. Public Service Com., 260 U. S. 212, 43 S. Ct. 75, 67 L. Ed. 217, where it was said by Chief Justice Taft, speaking for the court:

‘The appellees ask that, if we conclude to set aside the injunction, we entertain a motion to grant one now to preserve the status quo. The fact that a majority of the three judges...