Vill. of Grandville v. Rapids, 156.

• Decision Date: 19 December 1923
• Docket Number: No. 156.,156.
• Citation: 196 N.W. 351,225 Mich. 587
• Parties: VILLAGE OF GRANDVILLE v. GRAND RAPIDS, H. & C. R. R. et al.
• Court: Michigan Supreme Court

225 Mich. 587

196 N.W. 351

VILLAGE OF GRANDVILLE

v.GRAND RAPIDS, H. & C. R. R. et al.

No. 156.

Supreme Court of Michigan.

Dec. 19, 1923.

Appeal from Circuit Court, Kent County, in Chancery; Willis B. Perkins, Judge.

Action by the Village of Grandville against the Grand Rapids, Holland & Chicago Railroad and others. Decree for plaintiff, and defendants appeal. Modified and affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Justin R. Whiting, of Jackson (Stuart E. Knappen, of Grand Rapids, and Benjamin Kleinstiver, of Jackson, of counsel), for appellants.

J. T. & T. F. McAllister, of Grand Rapids, for appellee.

WIEST, C. J.

In 1900, the village of Grandville, by ordinance, granted a 30-year franchise to the Grand Rapids, Holland & Lake Michigan Rapid Railway, its successors and assigns, ‘to construct, maintain, own, use and operate a single or double track street railway, * * * upon * * * State street,’ upon the following, among other terms and conditions:

‘In case any street or avenue upon which said track is laid shall be paved by said village, the grantee, its successors and assigns, shall contemporaneously at their own expense pave the space between the rails of said track with the same material and in accordance with the plans and specifications adopted by said village for paving the remainder of such streets or avenues. * * *

‘This ordinance may be declared null and void and the rights and privileges hereby granted forfeited, in case said grantee, its successors and assigns, shall refuse or neglect to perform the conditions herein specified on its part to be performed.’

This franchise was duly accepted by the grantee. Under the franchise, double tracks were established and still exist in State street through the village. State street is the business street of the village.

August 27, 1918, the Kent county road commission, by resolution, took over for a county road, in the creation of a trunk line system, State street, in the village of Grandville, and consent thereto was given by the village council the next day. Under the statute, no funds could be expended by the county road commission for paving State street to a greater width than 16 feet. Act No. 356, Public Acts 1917. Knowing this, and desiring to have State street paved to a width of 42 feet between curbs in the business district, the village council by resolution engaged the county road commission to put in the pavement outside of the 16 feet constructed by the county, and this was done at a cost of $11,372.01 to the village. The act of 1917 left it for the village to pave State street--

‘outside the portion thereof constructed by the county and by the addition of gutters, curbs, sidewalks, and other improvements and to provide for the care and maintenance of such improvements and to levy and collect taxes for the same.’

After the pavement was put in by the county and village, the village authorities requested that the pavement between the rails be placed in accordance with the franchise. This was not done, and a proceeding, by mandamus, was commenced by the village, and later this suit was brought to declare and enforce a forfeiture of the franchise.

In the circuit, on December 12, 1922, the failure and neglect of defendant to comply with the franchise obligation to pave was adjudged, and forfeiture of the franchise decreed, and defendants enjoined from maintaining the tracks and operating cars, unless the pavement was placed on or before June 1, 1923. No pavement has been put in by defendants.

Defendants have brought the case here by appeal, and the issues presented will be mentioned in the course of the opinion.

The interurban railway runs from Grand Rapids, through the village of Grandville and other municipalities, to Saughtuck. The Grand Rapids, Holland & Chicago Railway Company is the holder of the franchise by transfer from the grantee. The Michigan Railway Company operated the railway for a time under lease. The Michigan Railroad Company now operates the railway under lease. The Commonwealth Power, Railway & Light Company has been dropped from the case.

It is contended:

‘The village cannot now enforce the paving clause of the franchise because it has turned State street over to the Kent county road commission, and, having relinquished control thereof, under the statute, as a matter of law has no jurisdiction over it, and now has no standing in this court with respect to the enforcement thereof or to declare a forfeiture for the cause asserted.’

It is true the act of 1917 gives the board of county road commissioners sole and exclusive jurisdiction and control of a road or street taken over and relieves the municipality from all responsibility therefor. But this must be taken in connection with the limitation of the width to be improved and the retention by the village of the right to improve, care for, and maintain the rest of the street. Beyond this, however, the Constitution, art. 8, § 28, prohibits the use of the streets of a village by the tracks of a street railway without the consent of the duly constituted authorities of the village, and provides:

‘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.’

The plan adopted and executed by the county road commission did not touch the part of the street occupied by the railway, but put down two strips of pavement 8 feet wide each side of the double tracks, and 18 inches away from the outside rails. The village did not relinquish to the county the whole of State street, and if it had done so it would have amounted to no more than authority for the county to pave 16 feet in width thereof. Suppose there was no franchise and defendants wanted one, would they apply to the board of county road commissioners to grant it in the face of the provision in the Constitution to the contrary? Certainly not. Rights and obligations under the franchise continue unaffected by any action under the county road or trunk line system. The provision in the Constitution with reference to the construction, improvement, and maintenance of highways (article 8, § 26, as amended in 1917) does not in any way conflict with other provisions therein...