Worden v. City of Detroit

• Decision Date: 01 December 1927
• Docket Number: No. 140.,140.
• Citation: 241 Mich. 139,216 N.W. 461
• Parties: WORDEN et al. v. CITY OF DETROIT et al.
• Court: Michigan Supreme Court

241 Mich. 139

216 N.W. 461

WORDEN et al.

v.CITY OF DETROIT et al.

No. 140.

Supreme Court of Michigan.

Dec. 1, 1927.

Appeal from Circuit Court, Wayne County, in Chancery; Vincent M. Brennan, Judge.

Suit by John R. Worden and others against the City of Detroit and others. From a decree dismissing plaintiffs' bill, they appeal. Affirmed.

Argued before the Entire Bench.

Ralph E. Routier, of Detroit, for appellants.

Walter E. Vashak and John H. Witherspoon, Asst. Corporation Counsels, both of Detroit (Charles P. O'Neil, of Detroit, of counsel), for appellees.

FELLOWS, J.

For upwards of ten years the Detroit United Railway Company operated a line which in part traversed a portion of Webb avenue. The original subdivider had platted certain lots called outlots, and the line was in part, at least, built on them. The construction was not modern, and some complaint is made that travelers on the street could not cross these tracks as conveniently as they desired. This line with other property was taken over by the city upon the adoption of the municipal ownership plan, and it continued to operate the line for some four years. Plaintiffs, residing on Webb avenue, desired the tracks taken up, and petitioned the common council to have this done. The petition was referred to the board of street railway commissioners. At that time Col. H. U. Wallace was general manager but not a member of the commission. He was familiar with the situation, being a resident of the locality. He sent a communication to the common council recommending that the petition be granted, and outlined the routes which in his judgment would take care of the traffic. A hearing was had, and the common council ordered the tracks removed, and they were removed. Shortly thereafter petitions to the common council, bearing around 7,000 signatures, were filed, asking that the service be restored. Another public hearing was had, and the common council unanimously rescinded its former action, and by another resolution directed and authorized the department of street railways to restore the service. Thereupon this bill was filed to restrain such action.

A preliminary question should be first considered. Defendants in their answer had stated that the communication to the common council was from the street railway commission. Plaintiffs' counsel read the communication into the record as part of their case. It was signed by Col. Wallace. The testimony showed that the commission itself had never taken any official action on the plaintiffs' petition, and defendants were permitted to amend their answer to correspond to plaintiffs' proofs by striking out the words ‘Street Railway Commission,’ and substituting, in accordance with the facts, the words, ‘Col. H. U. Wallace’ (the general manager of the Detroit Street Railway). This but permitted the pleading to correspond to plaintiffs' proof, and was clearly within the discretion of the trial judge.

The bill contains many charges of bad faith against the officials of the city, but there is not a line in the whole record to sustain such charges. Upon this record the officers of defendant city and all of them having to deal with the situation here have acted in the utmost of good faith in the discharge of their duties.

Plaintiffs' testimony establishes that there were some inconveniences suffered by the maintenance of the old tracks. They were constructed many years ago; the street was not paved between the tracks, and the tracks had probably outlived their usefulness, but they have been removed; there is no line of street railway there now. Unless restrained by injunction, the proper officers will, pursuant to the direction of the common council, build a new line of street railway on this street. It will be of modern construction, laid in concrete, paved between the tracks, and the inconveniences, other than those of having a street railway operating on the street, will be removed. In fact, if defendants are permitted to proceed, many of the objections appearing in the testimony will be done away with. The street is 72 feet wide from curb to curb, and there is ample room for both street car and vehicular traffic.

It is insisted on behalf of plaintiffs that the action of the common council in ordering the law construction was in excess of its authority; that the control of the system rested exclusively in the commission, had been exercised by it, and therefore the action of the common council was ultra vires. This contention cannot be supported as matter of fact or as matter of law. No official action was ever taken by the commission ordering the old tracks removed upon the petition originally filed by plaintiffs. That petition was addressed to and filed with the common council and referred by the city clerk to the commission. Col. Wallace, general manager, an employee of the commission...