text:
    HODGINS v. BAY CITY.

    1. Municipal Corporations — Negligence—Governmental Fungtions — Master and Servant — Negleot op Corporate Agents —Electricity.
    A city which furnishes electric light to patrons for commercial purposes is not relieved from liability for the neglect of its employés on the theory that the business relates to local governmental functions, but is bound to exercise reasonable care in insulating dangerous wires.
    2. Contributory Negligence — Municipal Corporations — Reliance on Care Exercised.
    A lineman of a telephone company whose poles are used by a city for the purpose of stringing electric wires may rely on the exercise of due care on the part of the city in properly insulating and inspecting its wires, and is not guilty of contributory negligence if his duties bring him in contact with a wire which would not be dangerous if properly insulated.
    3. Negligence — Electricity—Inspection— Constructive Notice.
    A charge in an action for negligent death, that if the defective insulation was caused by a change since the original construction, defendant was not liable unless the condition existed for such a length of time that the defendant might, in the exercise of reasonable diligence, by a proper inspection, have discovered the defect and repaired it, sufficiently protects defendant’s rights.
    4. Same — Contributory Negligence — Knowledge of Danger.
    It was proper to instruct the jury that, unless the danger aris. ing from the defect was such that it would, in the exercise of ordinary care, naturally attract the attention of the lineman, he would not be charged with notice of it; and only with’ notice of the danger incident to a similar wire properly insulated ; but that his degree of care must be commensurate with his extensive experience, and if the conditions would have naturally attracted his attention, in the exercise of due care, and caused him to discover the danger, he was guilty of negligence.
    5. Weight of Evidence — Motion for New Trial.
    A verdict for the plaintiff was supported by the evidence.

      Error to Genesee; Wisner, J.
    Submitted February 25, 1909.
    ( Docket No. 142.)
    Decided May 26, 1909.
    Case by Margaret Hodgins, administratrix of the estate of James H. Hodgins, deceased, against the city of Bay City for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      8. Ct. Houghton, for appellant.

      Pierce & Kinnane {De Vere Hall, of counsel), for appellee.

       Rehearing denied July 15, 1909.

   Blair, O. J.

James H. Hodgins, the plaintiff’s husband, lost his life on the 14th of September, 1906, through a shock received from an electric wire erected, owned, and maintained by defendant. Deceased, at the time of his injury, was in the performance of his duty as an employ é of the Valley Telephone Company, the owner of the pole upon which he was working. The defendant had reserved the right by ordinance to string, and had strung, two primary electric light wires upon this pole. The first cross-arm on the pole was used by the Bay City Traction & Electric Company. The second cross-arm was used by the defendant. The third and fourth cross-arms were used by the Valley Telephone Company. In doing the work he was engaged in, deceased stood upon the first cross-arm, astride of the city primary wire nearest the pole; said wire and cross-arm being near or slightly above his knees. The iron tie wire holding the primary wire against the glass insulator was imbedded into, and had cut through, the insulation of the primary wire, and a portion of the insulation was broken off the tie wire near the end. While deceased was grounded, he in some way came in contact with the primary wire and received a fatal shock. Plaintiff recovered judgment, and defendant brings the record to this court for review, insisting that a verdict should have been directed in its favor for the following reasons:

(1) That there is no common-law or statutory liability for such damages against municipal corporations in this State, and as a governmental agency defendant cannot be held liable in this suit.

(2) That decedent assumed the risk in going upon the cross-arms.

(8) That decedent was guilty of contributory negligence as a matter of law.

(4) Defendant was not responsible for such unnatural ^ and improper condition of said wire.

Defendant also contends:

(5) That the court erred in charging the jury both as to the law and the facts in this case.

(6) The court erred in denying defendant’s motion for a new trial for the reasons therein contained.

1. At the time of the accident, the defendant was, and for some time had been, engaged in furnishing electric lighting to its inhabitants for compensation, as well as in lighting its streets, public places, and buildings. The lamps used for street lighting were the series arc lamps which were operated by the direct current. For all the commercial lighting the alternating system was used. Separate dynamos and separate wires were used for the two systems. The defective wire which caused the death of Mr. Hodgins was carrying the alternating current and was part of the commercial lighting system. Defendant argues that the electric lighting department, like the fire department, of a municipality, is an agency of local government for the public purpose of benefit to the local community, and the rule that exempts the municipality from liability for the negligence of members of the fire department logically extends to the electric lighting department. We do not think the cases cited by counsel require sucha conclusion.

In Mitchell v. City of Negaunee, 113 Mich. 359 (38 L. R. A. 157), the question before the court was:

“Can the legislature authorize municipalities to own electric lighting plants which shall furnish not only the lights needed by the municipality but lights to its citizens ?”

It was held that light, like water, is a necessity for all, and the furnishing thereof was so far for a public purpose as to sustain the power of the legislature to confer upon, municipalities the right to furnish both under proper restrictions. In support of its conclusion, the court quoted at length from Opinion of the Justices, 150 Mass. 592 (8 L. R. A. 487), and cited Indiana and Ohio cases. The decisions in Massachusetts and Indiana (see Dickinson v. City of Boston, 188 Mass. 595 (1 L. R. A. [N. S.] 664), and Aiken v. City of Columbus, 167 Ind. 139 (12 L. R. A. [N. S.] 416), make it clear that, in holding that the furnishing of such a present day necessity as electric light is within the public purpose necessary to authorize the power of taxation, it was not intended to affect the rules of liability pertaining to the exercise of such franchises. Mitchell v. City of Negaunee, supra, contains no implication that the public purpose authorizing the delegation of the power of taxation places the municipality in the category of governmental agencies discharged from liability for the negligence of its officers and employes. In Davidson v. Mine, 151 Mich. 294 (15 L. R. A. [N. S.] 575), it was held that a city fire department is a local government agency and not an agency of the State government, and that an act of the legislature authorizing the governor to appoint the members of a bureau of safety to have charge of such fire department was unconstitutional, as being in violation of the constitutional right of self-government conferred upon municipalities. It was contended in that case that the holding of this court in Brink v. City of Grand Rapids, 144 Mich. 472, that the city was not responsible for the negligence of the employes of the fire department, was conclusive that such department was an agency of the State and not of the local government. It was said in reply to this contention that the case of Brink v. City of Grand Rapids rests upon the proposition that:

“ A municipality is not responsible for negligent injuries to persons or property committed by members of a fire department when engaged in work pertaining exclusively to the extinguishment of fires. * * * It cannot be said that a municipality is responsible for all the negligence of its officers when they are engaged in performing a local governmental duty, and therefore it is not true that exemption from such responsibility proves that they are not performing a local governmental duty.”

It was not intended by that decision to overrule Ostrander v. City of Lansing, 111 Mich. 693, and cognate cases. In the latter case the city was exercising its local governmental functions in the construction of a public sewer and was held liable for the negligence of its employés; it appearing that the charter of the city of Lansing contained a provision authorizing the obtaining of revenue from such sewers.

In Stevens v. City of Muskegon, 111 Mich. 72 (36 L. R. A. 777), the distinction is stated, quoting the language of Chief Justice Nelson, in Bailey v. Mayor, etc., of New York, 3 Hill (N. Y.), 539, as follows:

“ If granted for public purposes exclusively, they belong to the corporate body in its public political or municipal character; but if the grant was for purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation quoad hoc is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom the like special franchises had been conferred.”

Although it was said in Davidson v. Mine, that “ a municipal fire department is indistinguishable from a system of municipal waterworks which is authoritatively determined to be an agency of municipal government,” and that Justice Cooley, in delivering the opinion of the court in People, ex rel. Board of Park Corners, v. Detroit Common Council, 28 Mich. 228, clearly recognizes that “in Michigan the doctrine that a municipality is responsible for the negligence of its officers when engaged in performing a local governmental duty does not obtain,”it was only intended thereby, as in the Brink Case, to exclude liability when the function exercised was for the exclusive benefit of the local public, without private advantage or emolument to the corporation. It was not intended to wholly abolish the distinction stated by Chief Justice Nelson in Bailey v. Mayor, etc., of New York, 3 Hill (N. Y.), 531, and cited with approval by Justice Cooley in People, ex rel. Board of Park Com’rs, v. Detroit Common Council, supra. We are therefore of the opinion that the municipality, in furnishing electric light, is discharged from liability for the negligence of its officers, agents, and employés when furnishing the service for lighting its public streets, public places, and buildings, and that it is liable for such negligence in furnishing light to its inhabitants for remuneration.

2. This point was abandoned upon the oral argument.

3. The pole upon which decedent was working belonged to his employer, the Valley Telephone Company, and the right of the city to use the pole was derived from the ordinance, which provided that:

“ The city shall have the right to use any or all poles erected by the Valley Telephone Company, within the corporate limits of the city, for stringing fire-alarm wires, or other wires, the property of said city.”

Decedent owed no duty to defendant. On the contrary, defendant, knowing that decedent’s duties would require him to work upon his employer’s cross-arms and wires above its own, and knowing the extremely dangerous current its wires carried, was charged with the highest degree of care in furnishing a safe wire in the first instance and in making sufficient inspections and of sufficient frequency to keep the wires in a reasonably safe condition; and in going upon the pole to perform his work decedent had a right to rely to some extent upon the defendant’s discharge of its duty. Considered in the light of these principles, we do not think it can be said, as a matter of law, that decedent was guilty of contributory negligence. Mr. Hodgins was a man of long experience in this line of work. His employer’s manager testified:

“ He was one of the most experienced men in that line I have ever known or ever had work for me. I have always thought he was very careful and prudent; sometimes thought he carried it a little too far.”

There was competent testimony tending to show that decedent was doing his work in a proper manner, and, unless the testimony compels the conclusion that he was negligent in not discovering the dangerous condition of the wire, the question of his contributory negligence was for the jury. The primary wire which caused his death had been erected less than two months before, and the insulation on the wire was generally in good condition, and, except for the break in the insulation of the primary wire and of the tie wire where it was tied to the insulator, the wire was harmless. Decedent was engaged in stringing a heavy lead cable containing 204 telephone wires, and at the time of his death was endeavoring to make a proper bend in the cable so as to bring it down the pole to eventually connect with the Valley Telephone Company’s office. It was a bright, cloudless day, and had been dry during the whole day. His manager testified:

“He would climb with his front to the pole. I know where the offending place was that led to his death on the wire. In climbing up the pole as I have described, this place would be back of him, and in this position he would practically have no opportunity to discover the defects then in the construction at that point other than by inspection of the wires as appears here. * * * If there were 2,200 volts in that wire, and the insulation on it was correct, there would be no danger in my putting my hand on it. The danger arises when the insulation is broken or weather-soaked on account of age and the insulating properties being gone out of it.”

He also further testified that he examined the wire about half an hour after the accident occurred.

“I made a very close examination, got right up close to it, and examined it very carefully. The burning I could not see until I got very close to it. I might have noticed it two or three feet away if my attention had been called to it. It was cut into the feed wire to a certain extent. You could see that on any wife that was indented. The condition of cutting in along this wire was no more than I would expect to find at any point. The burning indicated that there was a leak or contact, and, if the appearance had not indicated the burning, I could not have told there was anything wrong there.”

He and others made a “magneto bell test’’the next day, which demonstrated that the insulation on the tie wire and feed wire was cut clear through at that point, and the wires themselves were in actual contact. He also testified that he should consider the insulation on such a wire “absolutely safe for three months.” We think the question of decedent’s contributory negligence was clearly a question of fact for the jury.

4. Defendant contends: That the testimony of the witnesses McCullough and Crampton shows that they were the persons who made the ties on said wire in July, 1906, and that they would not leave the ends of the tie wire in the condition they were at the time of the accident; that Camp and Kerzrock, employés of the Yalley Telephone Company under Mr. Hodgins, testified that its employes moved the city feed wire for their own convenience when working there; that, in view of these facts, it is unreasonable to presume that the line was originally tied as found the day after the accident, and it is a reasonable presumption that Mr. Hodgins knew about his men moving and handling the wires; and that the court erred in instructing the jury that there was nothing to charge decedent with notice of any change made in tying the line. There was competent testimony that, if the tie wire had been changed to the other side of the insulator and retied, the marks of such change would show upon the wires and could readily be detected, that there were no such marks, and, from the appearance of the wire and tie, when examined after the injury, no change had been made after it was erected. McCullough testified that he did not make the tie in question, to his knowledge, that Crampton and Quackenbush worked with him, and they put up the line from Linn and Midland streets across the river to Saginaw street, etc. Crampton testified that he could not say who did the work on that pole and denied that he tied the wire as it appeared after the accident. Quackenbush, the man who worked with McCullough and Crampton, was not called, and, in view of the testimony of Crampton, McCullough, and the experts, the logical inference is that Quackenbush made the tie as it was found after the accident. The testimony did not tend in any way to show notice of any change on the part of decedent. The court instructed the jury, as requested by defendant:

“If you find that the place where deceased was killed was in a defective condition at the time, and became so after the original construction, at the time he met his death, unless you further find that such condition had existed for such a time as would have enabled the defendant by the use of reasonable diligence to make an inspection, discover the defect, and make the repairs, then the defendant is not liable.”

This request fully protected defendant’s rights so far as the record warranted the submission of the claim of a change in the tie after the original attachment to the insulator.

5. The fourteenth assignment of error is as follows:

“Fourteenth. The court erred in charging the jury as follows: ‘ Deceased was not called upon before entering upon his work on the pole to examine or inspect the w*re and tie on defendant’s line at the place in question to learn whether it was properly insulated. Being authorized and required to work upon the pole, he would have a right to assume and believe that defendant had properly constructed, maintained, and inspected it. And unless you find that condition and danger arising from such defect was one so open and plain that it would naturally attract his attention and should have been seen by him in the exercise of ordinary care in and about his work, then I say to you that he would not be charged with either knowledge or notice of the true condition or danger. He would only stand charged with knowledge and notice of the dangers incident to a wire of equal voltage, similarly situated and properly tied and insulated.”

Subsequent to the giving of this instruction, the court charged the jury as follows:

“The degree of care and' caution that plaintiff’s decedent was required to observe and exercise when he went upon this pole in question was the care and caution that an ordinarily prudent man of 30 years’ experience with electric wires and cables, knowing the extremely dangerous character of such wires carrying a high voltage, would ordinarily observe and exercise, having regard tu the insulation ordinarily employed. Plaintiff’s decedent, because of his experience and knowledge of the dangerous character of electric wires carrying a high voltage of electricity, was called upon to use and exercise greater care than a person who never had such experience or knowledge of the extremely dangerous character of such, wires. His degree of care must be commensurate with his experience and knowledge of the dangerous character of electric wires carrying a high voltage of electricity, and if you find that decedent, under the circumstances as I have just stated, failed in such degree of care, for his own safety, he would be guilty of contributory negligence, and plaintiff could not recover. Plaintiff’s decedent was a man of several years’ experience with electricity, electric wires, telephone wires, cross-arms, etc., and must have known the result of coming in contact with live wires, as well as the purpose and effect of the insulation, and when he went up on this telephone pole in .question and out upon the cross-arm carrying these electric wires, I charge you that it was his duty before going out onto such cross-arm and over these electric wires to observe such conditions as were apparent and would naturally attract the attention of a man of ordinary caution under the conditions present, and if by looking he would have discovered that the insulation was stripped off from the tie wire and the tie wire had cut the insulation on the main wire, and that this made the place extremely dangerous, and if he failed in such duty, I then charge you he was guilty of contributory negligence, and in that event your verdict should be no cause of action.”

Considering the instructions together, we do not think the jury could have been misled into believing that “the question of due care on the part of deceased was wholly disregarded.”

We have considered the remaining assignments of error, and, considering them in connection with the entire charge, we are satisfied that, if technical errors were committed, they were not sufficiently prejudicial to defendant to require a reversal. Upon the whole the case was fairly and impartially submitted to the jury, and the verdict is amply supported by the evidence.

The judgment is affirmed.

Grant, Montgomery, and Ostrander, JJ., concurred. Hooker, J., concurred in the result.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    NORBLAD v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO.

    1. Statutes — Amendments — Constitutional Law — Re-enactment oe Amended Statute — Personal Injuries — Damages— Death.
    Act No. 89, Pub. Acts 1905, prescribing the rule of damages in actions for personal injuries prosecuted by the personal representative of the injured person under the statute which declares that such actions shall survive, does not amend section 10117, 3 Comp. Laws, the survival act, and is not, therefore, invalid for the reason that it does not re-enact said section at length as provided by section 25, article 4, of the Constitution.

      2. Death — Personal Injuries — Damages Recoverable — Statute-Effect.
    Where a negligent personal injury was inflicted and death resulted during the time when Act No. 89, Pub. Acts 1905, was in force, the damages recoverable by deceased’s personal representative were those prescribed by the statute, notwithstanding the action was not begun until after the repeal of the statute.
    S. Same — Action—Right to Maintain.
    Where a negligent personal injury was inflicted and death resulted during the time when Act No. 89, Pub. Acts 1905, was in force, deceased’s personal representative could not maintain an action for such injury unless it could be shown that some person entitled to share in the distribution of his estate had suffered pecuniary injury from his death.
    Error to Delta; Stone, J.
    Submitted October 12, 1908.
    (Docket No. 19.)
    Decided November 30, 1908.
    Case by Albín W. Norblad, administrator of the estate of Hamilton Langley, deceased, against the Minneapolis, St. Paul & Sault Ste. Marie Railway' Company for personal injuries. There was an order sustaining a demurrer to the declaration, and plaintiff brings error.
    Affirmed.

      Judd Yelland, for appellant.

      F. D. Mead (A. H. Bright, of counsel), for appellee.

       Withheld from publication pending motion for rehearing. Rehearing denied September 21, 1909.

   Hooker, J.

Plaintiff’s intestate sustained injuries November 20, 1906 (from which he died later), while acting as locomotive fireman upon defendant’s railroad. The declaration filed in this cause, brought to recover damages for the injury, alleges defendant’s negligence, and that the plaintiff’s intestate lost gains and profits by loss of wages which would otherwise have accrued to him had he lived. It also claimed damages for expenses incurred for care, nursing, and medical attendance, for pain and suffering, etc. Defendant filed a demurrer, the substance of which is that the declaration is filed under 3 Comp. Laws, § 10117, commonly called the “survival act;” that Act No. 89, Pub. Acts 1905, was in force at the time of the accident and intestate’s death, and, though subsequently repealed, fixed the character and measure of damages that the plaintiff might recover; that the declaration alleges no damages that the plaintiff could lawfully recover, it not showing that there were any persons entitled to recover damages, within the meaning of said Act No. 89. At the common law, actions for personal injury did not survive. They do survive now, but only under the provisions of section 10117.

“ In addition to the actions which survive by the common law, the following shall also survive; that is to say, actions of replevin and trover, actions of assault and battery, false imprisonment, for goods taken and carried away, for negligent injury to persons, for damage done to real and personal estate, and actions to recover real estate where persons have been induced to part with the same through fraudulent representations and deceit.”

Under this act the damages recoverable by the administrator were the same as those recoverable by the intestate had he lived.

This was changed by Act No. 89, Pub. Acts 1905:

“An act to prescribe the measure of damages in actions for negligent injuries to persons where deaths result, and where the actions are prosecuted under the survival act, and to provide for the distribution of the amounts paid on account of such damages, without participation by creditors of the deceased.
* ‘ The People of the State of Michigan enact:
“ Section 1. In all actions for negligent injury to persons hereafter prosecuted by the executor or administrator of an injured person, under the .statute which declares that said actions shall survive, the measure of damage in each case, shall be such a sum as the court or jury shall deem fair and just with reference to the pecuniary injury resulting from the death of the injured person, to those persons who may be entitled to such damages under the law providing for the distribution of personal property, left by persons dying intestate, and the amount recovered or paid in settlement of such damages shall not be subject to the claims of creditors of the deceased, but shall otherwise be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate.
“Sec. 2. All acts or parts of acts in anywise contravening the provisions of this act are hereby repealed.
“ This act is ordered to take immediate effect.
“Approved May 3, 1905.”

The last-mentioned act was repealed by Act No. 217, Pub. Acts 1907.

Primarily the questions before us are:

(1) Was Act No. 89 constitutional, and therefore effective to deprive plaintiff of the right to recover under the rule existing before its enactment ?

(2) If so, Did the repeal of the act restore such right ?

(3) If not, Is the declaration sufficient to sustain an action for damages under Act No. 89 ?

The constitutionality of Act No. 89 is attacked upon the ground that it violates section 25, art. 4, of the Constitution, which provides:

“ No law shall be revised, altered or amended by reference to its title only ; but the act revised, and the section or sections of the act altered or amended, shall be reenacted and published at length.”

Counsel contend that Act No. 89 “expressly undertakes to amend section 10117.” We are unable to accede to this contention. Section 10117 is silent upon the subject of damages. It refers to classes of actions which have long existed independent of statutes. The common law, not statute, fixed the measure of damages in these actions before Michigan was a State, or the United States a government, and it was not changed. Section 10117 does not touch the question of damages. It only provides that the common-law rule that actions of tort shall not survive shall be changed. It was in no way affected by Act No. 89, and therefore such act was not an amendment of it, either expressly or by implication. What Act No. 89 did was to change the pre-existing rule as to the measure of damages recoverable in the cases enumerated, which preexisting rule was that the same damages could be recovered by the administrator as could have been recovered by the intestate had he lived, and that was not a statutory rule. See Sweetland v. Railway Co., 117 Mich. 339 (43 L. R. A. 568); Dolson v. Railway Co., 128 Mich. 444; Jones v. McMillan, 129 Mich. 86; Kyes v. Telephone Co., 132 Mich. 281; Olivier v. Railway Co., 134 Mich. 369. The act was also within the rule laid down in People v. Mahaney, 13 Mich. 481; Underwood v. McDuffee, 15 Mich. 361; and Rice v. Hosking, 105 Mich. 306. It is not in conflict with Mok v. Savings Ass’n, 30 Mich. 522, a case readily distinguishable. The act was not unconstitutional upon the ground stated.

To recapitulate a few dates, we may say that Act No. 89 was passed in 1905; the injury occurred in November, 1906; the intestate died November 21, 1906; Act No. 89 was repealed June 24, 1907; this action was begun by declaration February 11, 1908. Clearly, at the time the intestate was injured and died, his representative took a right of action under 3 Comp. Laws, § 10117; the measure of damages being fixed by Act No. 89. Unless the repeal of Act No. 89 by Act No. 217, Pub. Acts 1907, had the effect to prescribe a new measure of damages, not only after such right accrued, but after action had been commenced, his only right of action was one arising under Act No. 89. This question is settled, in accordance with defendant’s favor, in two cases: Davis v. Railroad Co., 147 Mich. 481, and Little v. Bousfleld & Co., 154 Mich. 369. See, also, Culpepper v. Railway Co., 90 Tex. 627; Bucher v. Railroad Co., 131 Mass. 156. As these cases arose upon these identical statufes, it is not necessary to discuss the question at length. Many earlier cases are in line with them, both upon the question of retroactive laws, and vested rights of action. Some of them will be found in the opinion of the learned circuit judge, and defendant’s brief.

But one question remains to be considered, i. e., Can the declaration be sustained as a good declaration under Act No. 89 ? We are of the opinion that it cannot, for it fails to show that anyone has suffered any injury, and it states only a claim for such damages as the intestate might have recovered, none of which are shown to be injurious to any person.

The judgment is affirmed.

Grant, C. J., and McAlvay, J., concurred. Blair and Moore, JJ., concurred in the result-


author: Moore, J. Hooker, J. McAlvay, J.

text:
    CITY OF MASON v. LANSING & JACKSON RAILWAY CO.
    1. Railroads — Streets—Municipal Corporations — Franchises
    —Statutes.
    A railroad organized under 2 Comp. Laws, §§ 6223 et seq., may construct a section of an interurban electric railway, within city limits, on private right of way and crossing city streets, without obtaining a franchise from the municipality, al- * though the purpose of organizing the steam railway company was to avoid the necessity of accepting a right of way offered by the city, which the interurban company considered too circuitous and expensive. MoAlvay, J., and Blair, C. J., dissenting.
    2. Street Railways — Franchises—Regulation.
    It is only when a street railway is operated along the streets of a municipality that conditions and limitations may be imposed by the common council. MoAlvay, J., and Blair, O. J., dissenting.
    3. Railroads — Length op Line — Statutes.
    No restrictions as to length of steam roads are imposed by chapter 164, 2 Comp. Laws.
    4. Same — Electric Operation — Statutes.
    Railroads organized under chapter 164, 2 Comp. Laws, may operate all or parts of the line by electricity. MoAlvay, J., and Blair, O. J., dissenting.
    Appeal from Ingham; Wisner, J., presiding.
    Submitted January 19, 1909.
    (Docket No. 109.)
    Decided May 26, 1909.
    Bill by the city of Mason against the Lansing & Jackson Railway Company, the Michigan United Railways Company, the Lansing Southern Railroad Company, and the Northern Construction Company to enjoin the construction and operation of a railway. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Louis B. McArthur (Lawton T. Hemans and Otto Kirchner, of counsel), for complainant.

      Sanford W. Ladd and Arthur J. Tuttle (Stevenson, Carpenter & Butzel, of counsel), for defendants.
   Moore, J.

The complainant is a municipal corporation incorporated under the provisions of Act No. 178, Laws 1873, by Act No. 277, Local Acts 1875, reincorporated by Act No. 272, Local Acts 1891. The defendants the Lansing & Jackson Railway Company and the Michigan United Railways Company are domestic corporations1 organized and incorporated under the provisions of an act to provide for the formation of street railway companies, the same being chapter 168 of the Compiled Laws of 1897, as amended. The defendant the Northern Construction Company is a domestic corporation organized under the provisions of Act No. 232, Pub. Acts 1903, and the defendant the Lansing Southern Railroad Company is a domestic corporation incorporated under Act No. 198, Laws 1873; this act being what is known as the “steam or commercial railroad act.”

Some time prior to the month of February, 1905, Myron W. Mills, George G. Moore, and James R. Elliott, associated with othet gentlemen, became the owners of the street railway system in the city of Lansing. In the month of February, 1905, these men made application to the common council of the city of Mason for a franchise for the construction through the city of Mason of a street or interurban railway which they purposed to construct from the city of Lansing through the city of Mason to the city of Jackson. They presented a franchise to the common council of the city of Mason. The common council refused to grant the franchise desired. On the 30th of March, 1905, Myron W. Mills, George G. Moore, James R. Elliott, the three gentlemen heretofore named, together • with David "W. Mills, executed articles of incorporation for the Lansing & Jackson Railway Company, which were filed in the office of the secretary of State; the purpose of this organization, as stated in its articles of incorporation, being—

“To construct, purchase, lease, own, maintain, use and operate street railways, in, through, upon and along private rights of way, streets, roads, alleys and highways in cities and villages and extending through and from cities and villages into adjoining townships and in, through, upon and along private rights of way, streets, roads, alleys and highways in townships in the State of • Michigan, and especially the cities of Lansing and Jackson and the townships, villages and cities between said cities.”

Following the organization of this corporation, it, through its officers, Myron W. Mills, George G. Moore, and James R. Elliott, executed a map of that portion of its proposed route from the southern corporate limits of the city of Lansing to the northern corporate limits of the city of Mason. This map was approved August 15, 1905, and filed in the office of the register of deeds for the county of Ingham.

At or about this time the Lansing & Jackson Railway Company contracted with its officers, Messrs. Myron W. Mills, George G. Moore, and James R. Elliott, for the construction of the road upon the line designated in their map, and to facilitate the construction the contractors secured options upon and purchased further right of way both to the north and south of the city of Mason and procured franchises from townships and from the village of Leslie and made frequent application to the common council of the city of Mason for a franchise through said city, and during the year 1905 constructed some six or eight miles of roadbed. No franchise was granted by the common council of the city of Mason because the parties were unable to agree as to the street to be occupied by said company. On or about the 31st of March, 1906, James R. Elliott and others united in the incorporation of the defendant the Michigan United Railways Company; the purpose of this corporation, as set forth in article 2 of its articles of association, being “to construct, purchase, lease, own, maintain, use and' operate street railways ” through various designated sections of the State and over certain designated routes, among which was the following:

“From the, city of Lansing, Ingham county, and through the city of Mason and the village of Leslie to the city of Jackson.”

Of this company Myron W. Mills became president, James R. Elliott vice president and treasurer, and George G. Moore a director, and later Theron W. Atwood became a director. On or about May 25, 1906, James R. Elliott and others effected the organization and incorporation of the defendant the Northern Construction Company. Of this company Theron W. Atwood soon became president, a position he has since continued to occupy.

Some time in June, 1907, Messrs. Mills, Moore, and Elliott, who had contracted for the construction of the road with the Lansing & Jackson Railway Company, sublet the contract for construction to the Northern Construction Company. During the summer of 1907 the construction begun by Messrs. Mills, Moore, and Elliott was practically completed, and a street or interurban railway connecting with the street railway system of the city of Lansing extended to the north corporate limits of the city of Mason. While this work was in progress, Mr. Atwood made frequent overtures to the common council of the city of Mason for a franchise for the construction of such road through the city upon a line which the officers and agents had surveyed and marked; Mr. Atwood finally saying to the officers of the city that, unless a franchise was granted to the Lansing & Jackson Railway Company to construct the road where they desired to construct it, they would force its way through the city without a franchise. Following such representations, and the survey of the line through the city of Mason, Mr. Theron W. Atwood, James R. Elliott, and others, officers and agents of the defendant companies, organized the defendant company the Lansing Southern Railroad Company; the articles of association being filed in the office of the secretary of State on the 11th day of September, 1907. The purpose of the organization of said company, as stated in article 5 of its articles of incorporation, being to construct a railroad of T-rails, standard gauge, near the center of northeast one-quarter of section 6 of the township of Yevay, in the county of Ingham, State of Michigan; thence in said township of Yevay to a point about 350 feet south and 58 feet east of the northwest one-quarter of section 16 of the township of Yevay — which railroad is to be operated by electric power. The total length of said line being 2.36 miles. On the same day that the Lansing Southern Railroad Company filed its articles of incorporation, it filed its map of its proposed route through the city of Mason. Said route was over a private right of way, but near the route demanded by the Lansing & Jackson Railway Company and connecting the termini of the Lansing & Jackson Railway Company at the northern and southern corporate limits of the city of Mason. At once after the organization of the Lansing Southern Railroad Company the defendant, the Northern Construction Company purchased right of way within the city of Mason and proceeded to grade and construct a railway connecting with the Lansing & Jackson Railway into the city of Mason. At this juncture the bill of complaint was filed in this cause. After a hearing upon the merits, the bill of complaint was dismissed. The case is brought here by appeal.

It is the claim of complainant that what is attempted to be done is to construct and operate a street and suburban railway, in fact, and that the organization of the Lansing Southern Railroad Company under the general railroad act is a mere evasion for the purpose of getting through the city of Mason without a franchise from the common council. "We quote from the brief of counsel:

“ It is the contention of the complainant: That there is generic difference between what in law is comprehended under the term ‘ street or interurban railway ’ and what is understood by ‘steam or commercial railway;’ that the legislature’s providing the two means of incorporation is- a recognition not only of the difference inherent in the services they render, but a difference in the supervision and control which the State extends over them. This distinction, although sometimes difficult to phrase in words, is nevertheless recognized in many adjudicated cases” — citing cases to be found in the brief.
“The language is positive and certain showing that it was in the mind of the legislature that no company or corporation should ever obtain the benefits of a street railway business unless they ‘ shall be organized under the provisions of this act.’ * * * It is the characteristics and purposes of a road, and not the statute under which a company may seek to incorporate, that must fix the kind of a road that is in fact being constructed. * * * Whatever may be the claim of the Lansing Southern Railroad Company, they are building and proposing to build within the city of Mason the same kind of a railway, proposing to build it in the same place, to equip it with the same kind of equipment, and propose the same kind of service over it, as the Lansing & Jackson Railway Company have asked a franchise to build, equip, and furnish service over. Now the law is well settled that the right of a municipality under the statute, to refuse its consent to the use of its streets by a street railway, is an absolute one, and its power in the first instance to impose conditions is unlimited. Now that street railways can be constructed upon private right of way the power of the municipality still continues and can be enforced by injunction ” — citing cases found in the brief.

It is later argued by one of the counsel for the city that such a road as is proposed to be built by the Lansing Southern Railroad Company cannot legally be built by a company organized under the general railroad law. We quote from the brief:

“Such a railroad may not be constructed under the general railroad law. It may be constructed and operated only under the street railway law, and under that law the streets of the municipality may not be crossed without its consent. The language of section 13 of the street railway act, as amended, already referred to, seems to place the proposition beyond doubt. Other sections of the act are in harmony with it. * * * I submit that it is too plain for argument that a railroad that crosses a street is literally ‘ in ’ the street. May a company organized under the street railway law that has acquired a private right of way within a city cross the streets of that city without its consent ?” — and counsel answers the question in the negative.

Counsel for defendants insist they are authorized by the law to do what is proposed by them to be done.

The following conclusions are fairly to be drawn from the record:

(1) It was proposed and expected to build and operate a line of road between the city of Lansing and the city of Jackson through the city of Mason by a company organized under the street and suburban railway act.
(2) That an effort was made to get a franchise through the city of Mason upon a street that would make a route that would be comparatively direct, and that would make it unnecessary to cross the tracks of the Michigan Central Railroad, a steam road.
(3) The common council of the city of Mason was willing to grant a franchise, but insisted upon the line being laid lengthwise of one of its principal business thoroughfares. This involved a more circuitous route than the one desired by defendants, and necessitated the crossing of a steam road twice. At least one of said crossings must be made by an overhead bridge, involving a large expense at the outset, and a continuing expense during operation, to say nothing of the delay and danger of the crossings.
(4) Under this situation the defendants, regarding the conditions insisted upon by the common council as too onerous, decided to abandon the operation of a street railway through the city of Mason upon the streets of said city, and to get their cars through the city upon a private right of way, without laying any track lengthwise of the street. To accomplish this result the organization of the Lansing Southern Railroad Company was brought about as before stated.

The question, then, is whether what is proposed may be legally done ? The case is one of first impression. The diligence of able counsel has not enabled them to call our attention to an authority which is decisive. Our attention is called to the case of Pennsylvania R. Co. v. Bridgeport R. Co. (Pa.), 11 Montg. Co. Law Rep. 73. A reference to the case will show that it is readily distinguishable from the case at bar. Section 6223, 2 Comp. Laws, provides in part as follows :

“That it shall be lawful for any number of persons, not less than seven, to organize themselves into a corporation for the purpose of constructing, operating and maintaining a railroad,” etc.

Section 6232 provides for the making, the approval, and the filing of a map. The provisions of both of these sections have been followed. Section6231 provides: “Every such corporation shall possess the general powers and be subject to the liabilities and restrictions following, that is to say:” Subdivision 1 of this section relates to the making of surveys. Subdivision 2 authorizes the corporation to receive voluntary grants of real estate and other property. The next subdivision authorizes the purchase of real estate and other property. Subdivision 5 reads in part as follows:

“ To construct its road upon or across, or its railroad tunnel under any stream of water, watercourse, private road, street, lane, alley or highway, and across or under any plank road, railroad or canal, which the route of its road or railroad tunnel shalllie along, orintersect. * * * And in case of the construction of such railway upon any public street, lane, alley or highway the same shall be on such terms and conditions as shall be agreed upon between the railroad company and the common council of any city, or the village board of any village, or the commissioners of highway of any township in which the same may be; but such railway shall not be constructed upon any pub-lie street, lane, alley, highway or private way until damages and compensation be made by the railroad company therefor to the owner or owners of property adjoining such street, lane, alley, highway or private way, and opposite where such railroad is to be constructed either by agreement between the railroad company and each owner or owners, or ascertain as herein prescribed for obtaining property or franchises for the purpose of its incorporation to be paid to the owner thereof, or deposited as hereinafter directed.”

Subdivision 6 reads as follows:

“To cross, join and unite its railroads with any other railroad now or hereafter constructed under any law whatever at any point on its route, and upon the grounds of such other railroad now or hereafter constructed with the necessary turnouts, sidings, and switches, and other accommodations and conveniences, in furtherance of the objects of its connections; and to make all such business arrangements as said companies may agree upon. And every company whose railroad shall be intersected by any other railroad shall unite with the owners of such other railroads in forming such intersections and connections and grant facilities for the same as hereinafter provided.”

Subdivision 7 reads in part as follows:

‘£ To take, transport, carry, and convey persons and property on their said road or through such tunnel by the force and power of steam, animals, or any mechanical power, or by any combination of them, and to receive tolls and compensation therefor.”

A careful reading of the act will fail to disclose any such limitation upon the powers of the company as is contained in the Pennsylvania statute, to which attention was called in the case of Pennsylvania R. Co. v. Bridgeport R. Co., supra.

It is not stated that the road must be any particular length, nor that it must run through more than one municipality or township. It is only when the track is laid upon the street or highway that terms and conditions may be imposed by the common council. It was doubtless competent for the legislature to impose other restrictions, bat it has not done so. It is a matter of common knowledge that, in nearly every city of any size, belt lines of road are constructed and operated under the provisions of the law which we have quoted, when the length of the line is quite as short as the line of the Lansing Southern road. We have recognized the legality of the operation of some of these lines. City of Detroit v. Railroad, 149 Mich. 530 (113 N. W. 365); Ilgenfritz v. Railway, 136 Mich. 634 (99 N. W. 878); Attorney General, ex rel. City of Monroe, v. Railway, 151 Mich. 473 (115 N. W. 422).

There can be no doubt, if the defendants had organized under the general law and acquired private right of way, it might have operated its cars from Lansing to Jackson running through the city of Mason as it now proposes, using electricity as the motive power. If it may do this, why may not it operate part of the distance under the general railroad law over its private right of way? We find nothing in the statute which prevents it from so doing.

The decree is affirmed.

Grant, Montgomery, Ostrander, and Brooke, JJ., concurred with Moore, J.

Hooker, J.

Complainant has appealed from a decree dismissing an injunction bill. The defendant corporation the Lansing & Jackson Railway Company was organized under the street railway law (2 Comp. Laws, chap. 168) to construct an electric railway between Lansing and Jackson, through the intervening townships, cities, and villages. It is already constructed between Lansing and the city of Mason and is nearing completion between Jackson and Mason. The common council denied its right to construct its line through the city of Mason, unless it would use the main business street upon terms and restrictions which it has been unwilling to accede to. It therefore proposed to run its line through the city, west of the Michigan Central Railroad (thereby avoiding two expensive crossings) upon a private right of way. The council denied this right, and thereupon defendant procured the organization of a railroad company, the Lansing Southern Railroad Company, under the general railroad law (2 Comp. Laws, chap. 164), to build a road through the city upon a private right of way which it has since acquired. It is obvious and not denied that this was done to enable defendant to run through cars between Lansing and Jackson over said road, in defiance of the wishes and action taken by the common council of the city of Mason.

The Mason people are naturally desirous of obtaining the construction of this road through the main business street of the city, and we understand that a right to do this was and would be again offered if acceptable. The defendants, however, are unwilling to do this because of the necessary expense of two costly crossings of the Michigan Central Railroad, a difficult grade, and a deflection of its line, increasing its length.

Whether a council may unreasonably require the construction of a road through a particular street to the exclusion of all others, we need not inquire, as the defendants do not raise the question by attempting the use of another street. Neither is it necessary to determine whether its requirements are unreasonable, for the same reason. The question here is whether the defendant Lansing & Jackson Railway Company has the right to put its own road, or to procure one to be built under the general railroad law, through the city, without the consent of the city.

The original street railway act was passed in 1867. See .Act No. 35, Laws 1867. There can be little doubt that it contemplated only the running of cars by animal power, in the streets of cities and villages and the adjacent townships. There have been important amendments to this act since, however, which have extended the powers of companies since organized under this law. Thus Act No. 12, Pub. Acts 1893, authorized the extension and construction of such roads in the highways in townships generally. See Act No. 234, Pub. Acts 1901, and Acts Nos. 101 and 133, Pub. Acts 1905. The latter act is an amendment to section 13. It authorized any corporation organized under the street railway act to build and operate a railway upon the streets of cities and villages and in and along the streets and highways of townships, but only upon such terms and conditions as the municipal authorities shall require. It then provides that—

“Any such company may construct, use, maintain, and own a street railway upon private rights of way, and all companies shall, when necessary to enter upon and use private property in such construction and operation, have the same power and right of eminent domain as is now possessed by railroad companies.”

The use of animal power for street railways had become obsolete, and electricity had been almost universally applied to them before 1905, with the consequent application to country as well as city use of the trolley car. At first they continued to be used in and along the highways, but this practice required consent and permitted restriction, if not possible prohibition by local boards. The act of 1905 relieved the roads from the necessity of building in the streets and highways and allowed the use of a private right of way. It is contended that they are not relieved of the necessity of getting the consent of local authorities for the reason that they must still cross streets and country roads, which is a building upon streets and highways requiring consent of local authorities. Act No. 101, Pub. Acts 1905, provides that no such company shall construct a road “ in, upon, above or under ” the lines of streets and ways in a city without consent; but this language does not appear in the later act, i. e., Act No. 133, passed 10 days later, which amended the same section. But we need not rest this case on a narrow ground. The amendments of these statutes show a recognition of the necessities of changed conditions. Street railways, so-called, are no longer mere creatures of city convenience. They have expanded into necessary conveniences of suburban and interurban traffic, as essential to public convenience in their way as steam railroads are in another way. We see nothing to indicate that the legislature intended to cripple them by giving authority to localities to block their way by refusing the privilege to cross their territory. They are no longer obliged to be street railways, in fact 0i. e., in the sense that they must be confined to the street's and highways), but, like other railroads, may own their rights of way, and we have no difficulty in holding that the necessary crossing of streets and highways was a right intended to be conferred as it is under other railway acts. In short, the authority is given to build such roads, where street railway companies can acquire private rights of way by purchase or condemnation, and, like other rail-k roads, they do not need the consent of local boards, unless they wish to lay their tracks in and along streets or highways.

We do not overlook the case of Detroit United Railway v. Paper Co., 149 Mich. 675 (113 N. W. 285). In that case a village had permitted the use of the east 30 feet of a street for a distance of 1,000 feet to be used for the erection of a trestle upon which petitioner’s track was laid. Subsequently, by virtue of an ordinance not published as the law required, petitioner claimed the right to use this 30-foot strip together with a 90-foot strip from defendant’s lands, which it sought to condemn, for the purpose of an embankment. The authority of the village to authorize an embankment was denied, and the validity of the proceedings was questioned upon several grounds. The opinion in that case recognized the validity of both acts, viz., No. 101 and No. 133. We feel constrained to overrule so much as was said upon that subject, as it was clearly erroneous. The authorities are practically unanimous in holding that:

“ Where an act or portion of an act is amended £ so as to read ’ in a prescribed way, it has been said that the section amended is entirely repealed and obliterated thereby. It is perfectly clear that, as to all matters contained in the original enactment, and not incorporated in the amendment, the latter must be held to have the effect of a repeal.” Endlich on Interpretation of Statutes, § 196, citing: Moore v. Mausert, 49 N. Y. 332; People v. Board of Sup’rs of Montgomery Co., 67 N. Y. 109 (23 Am Rep. 94); State v. Ingersoll, 17 Wis. 631; Goodno v. City of Oshkosh, 31 Wis. 127; Mosby v. Insurance Co., 31 Grat. (Va.) 629; Goodall v. People, 123 Ill. 389 (15 N. E. 171); State v. County of Duval, 23 Fla. 483 (3 South. 193).”

We approved the same doctrine in People v. Hiller, 113 Mich. 211, citing 23 Am. &-Eng. Enc. Law (1st Ed.)„ p. 488, where many authorities are collected.

Section 25, art. 4, of our late Constitution (in force when these acts were passed), provides that “no law shall be revised, altered or amended by reference to its title only;, but the act revised and the section or sections of the act altered or amended shall be re-enacted and published at length.” See People v. Pritchard, 21 Mich. 241; Tuskaloosa Bridge Co. v. Olmstead, 41 Ala. 9; Cooley on Constitutional Limitations (7th Ed.), pp. 215, 216. This requirement clearly implies that the re-enacted section is. a substitute for the amended section, as indicated in Cooley on Constitutional Limitations (7th Ed.), p. 216. In People v. Pritchard, supra, it was said:

“It seems that section 2463 of the Compiled Laws. [1857], which governs the case, had previously been amended by another statute, and the effect was, it is claimed, to repeal the section as it stood in the Compiled Laws, leaving the amendatory statute to stand instead thereof. And the argument is that a subsequent amendatory statute could not properly be entitled ‘An act to amend section 2463 of the Compiled Laws [1857],’ because there was no longer any such section, and an act thus entitled could have nothing to operate upon. This-reasoning seems to us too refined for practical value. Under our Constitution the mode of amending a section of a statute is by enacting that the section in question ‘shall read as follows.’ The position of the section in the original statute is not changed, and there is no reason why subsequent amendments of the same section should not be made by reference to its number in the original, statute.”

We conclude, therefore, that this street railway had the right to go through Mason upon its own private way and to cross the streets subject to such rights of regulation as the law confers upon the city and railway commissioner. It was not necessary to organize under the general law to accomplish this, but we do not see that the fact that it has caused this to be done has created any equities in favor of complainant.

The decree dismissing the bill is affirmed, with costs.

McAlvay, J.

(dissenting). Defendant Lansing & Jackson Railway Company is a Michigan corporation organized under the street railway law—

“To construct, purchase, lease, own, maintain, use and operate street railways in, through, upon and along private rights of way, streets, roads, alleys and highways in cities and villages, and extending through and from cities and villages into adjoining townships and in, through, upon and along private rights of way, streets, roads, alleys and highways in townships in the State of Michigan and especially the cities of Lansing and Jackson and the townships, villages and cities between said cities.”

Defendant Michigan United Railways Company is organized under the same law for the same purposes. The territory over which its operations may extend is larger and is claimed by lease or otherwise to be operating the last-named defendant. Defendant Lansing Southern Railroad Company is a Michigan corporation organized under the general railroad law of the State for the purpose of constructing, operating, and maintaining a railroad 2.36 miles in length. Defendant Northern Construction Company is also a Michigan corporation organized under Act No. 232, Pub. Acts 1903 “to construct and equip street railways and interurban railways.” Defendant Lansing & Jackson Railway Company, in pursuance of its purpose to construct and operate a street railway between Lansing and Jackson, obtained its private right of way through townships between said cities and is constructed for practically the entire distance outside the limits of the complainant city of Mason. Extended negotiations between the city authorities and the officers and agents of this defendant, relative to granting it a permit to enter its limits and construct its street railway across its territory, resulted in a refusal on the part of the street railway company to accept the terms and conditions offered by complainant.

These defendant corporations are all organized, owned, and operated in the same interests, each being officered by the same persons or by officers and agents of the others, except perhaps the Michigan United Railways. The active agent of defendant Lansing & Jackson Railway Company, at the time it was seeking this franchise, stated to the mayor of the city of Mason that if a franchise was not granted they would get through without one. Defendant Lansing Southern Railroad was then organized. It is practically all within the corporate limits of Mason and passes through upon the line the street railway company desired. Its north and south termini coincide with the termini of the two sections of defendant Lansing & Jackson Railway Company at or about the northern and southern limits of complainant corporation, and it is laid out to be connected with them and within the city to supply the link in this street railway as it passes through, thus completing the street railway line of the defendant last named from Lansing to Jackson. The purpose of this defendant is to have the street car passengers of the Lansing & Jackson Railway Company carried over its line in the cars without change into and through complainant city, making but one stop at a place provided therefor. It is admitted that the building of a street railway through this city was abandoned because they were not willing to submit to the terms imposed by complainant, and they now propose to get through by building a railroad under the general railroad law and operate it for this purpose, as they claim they are legally entitled to do. Proceeding upon this theory, after organizing under the general railroad law, the defendant Lansing Southern Railroad Company secured its right of way through the city of Mason, and the construction company was proceeding to construct its road thereon through the city, crossing 11 streets, without consent or permission of the municipal authorities.

The bill of complaint was then filed, and defendants' were enjoined. It is the contention on the part of complainant : That the organization of the Lansing Southern j Railroad Company is a subterfuge, not a good-faith proceeding; that the use of the general railroad laws is a fraudulent use; that the sole purpose of such organization is to carry on a street railway business within complainant’s corporate limits, and avoid the regulations and restrictions imposed upon street railways by law, when in truth and in fact it is a part of the Lansing & Jackson Railway Company; and that the organization for such purpose is a fraud upon the statute. Complainant also contends that, the purpose of this defendant being to carry on a street railway business, such purpose is not within its corporate power.

It cannot be claimed that the municipality was not strictly within its rights in imposing such terms as it saw fit as a condition to granting a franchise to the Lansing & Jackson Railway Company. This court has so held, and has said that a municipality may absolutely refuse the use of its streets to a street railway. These decisions have never been questioned. City of Monroe v. Railway, 143 Mich., at page 320 (106 N. W. 704), and cases cited. The demands of the municipality, whether considered reasonable or unreasonable by the street railway company, cannot be used as an argument excusing or warranting an unlawful attempt to get through said city by the street railway company.

In considering the statutes under which general railroads and street railways may be organized, the legislative intent is clear that the street railway act was intended for street railways only. Can we say of the general railroad law that there is either an express or an im plied intent that corporations were to organize under it for the purposes of conducting a street railway business ? Street railways are of modern growth, and, except as operated by animal power, were unknown at the time the general railroad law was enacted. This general railroad law, by reason of the business in which corporations organized under it were intended to engage, and the manner in which said business by its terms was to be conducted, is not adaptable to street railway business, which, from its very nature, must be subject to the restrictions and under the control of the municipality in which such business is to be carried on. Such use of a general railroad cannot be said to have been within the fair intendment of the statute. This court has distinguished between street railways and general railroads in several cases, and such distinction has been drawn from, their purposes and uses rather than from the statutes under which they had been incorporated. Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306); Township of Ecorse v. Railway, 153 Mich. 393 (117 N. W. 89), and cases cited.

There is an important distinction created by statute between street railway and general railroad corporations. No authority is given to a street railway company to enter a municipality and construct and operate its road in, upon, along (or across) its streets or highways without permission of the proper authorities. The word ‘ ‘ across ” is not in the statute, but a street railway is not permitted to operate at all within corporate limits without such permission. Specific authority is given to a company organized under the general railroad law to construct its road across any street or highway. "By amendments to the street railway law, the right was given to extend such railways, having obtained proper consent, into the streets and highways of a township adjacent to a city or village, and later to construct through any township with the consent and upon the terms required by the township authorities. By Act No. 133, Pub. Acts 1905, power was given street railways to exercise the right of eminent domain by proceedings the same as under the general railroad laws; but in none of these amendments is there any repeal of the required permission of city, village, or township authorities.

One distinction between street railways and general railroads recognized by the courts was that the former relieved the congested traffic upon the streets, and was therefore not an additional servitude. The urban and interurban street railways are merely the extension of street railways beyond city and village limits and have been permitted upon the streets and highways of townships for the same reason. Granting power to these roads to build upon private rights of way does not take them out of their classification as street railways and out of municipal control. Whether they own parts or the whole of their rights of way, they must be classified by the business they are engaged in, and the law under which they should be organized is the street railway law. There is no other law providing for the organization of street railway companies. Street railways always have been, and of necessity always must be, subject to control and regulation by municipal authority. Operated upon its own right of way through a city, a street railway presents dangers to the public as necessary to be guarded against as when in the open street. To hold that the statute permitting such roads to own and occupy private rights of way, by implication, repealed the provisions of law requiring municipal control over street railways, is unwarranted and unsupported by authority. If such is to be the holding of this court it will be the first time that such a construction has been placed upon an amended statute. The rule which we have heretofore followed has been that repeals by implication are not favored, and are only allowed when the implication is a necessary one. The evolution in urban and suburban transportation, and the power used, is recognized, and must be taken into consideration; but such improvements, instead of operating to put aside the reasonable control of its agencies provided by law, and necessary for the safety of the citizen, should operate to add to the care and control of the authorities by reason of added dangers.

The defendants did not contend for the construction last above stated, but they merely suggested it. Such construction practically worked out would reach results extremely complicated. A street railway crossing a city might be constructed partly on its right of way and partly in the streets. For several blocks the city could impose regulations, then for a distance no control, and so alternating for greater or lesser distances. The grant of the right of eminent domain was not extended to street railways to relieve them from supervision and control, but doubtless to secure such roads which were at that time building on private rights of way immunity from being obstructed by objecting owners. See Grand Rapids, etc., R. Co. v. Stevens, 148 Mich. 646 (107 N. W. 436).

The conclusion is that municipal control over street railways continues under the street railway law, and was not repealed by the amendment of 1905, and that whether a street railway within corporate limits is operated “ in and upon the lines of streets and ways ” or upon its private right of way through the municipality, crossing streets and ways, it may be there only under such conditions as may be imposed by the municipality. This evidently was the practical construction put upon this amendment by defendants who proceeded to organize defendant Lansing Southern Railroad Company under the general railroad law, and cross the city practically on the line where it was desired to run the street railway. It is not denied thát this was the reason for organizing this defendant company, or that the purpose is to make it the link through complainant city of the street railway line of the Lansing & Jackson Railway Company. The purpose is to lease this line to be used to carry on a street railway business. There is no claim made that the Lansing Southern Railroad Company intends to equip its road, less than 2£ miles long, for the purpose of carrying on a general railroad business. Defendants declare that to use this road as herein stated their intention is to use it, is a proper and legitimate use.

Under the circumstances herein related, the general railroad law was resorted to, and defendant Lansing Southern Railroad Company was organized. The project was conceived by the same agent of the street railway company who threatened to go through the city without permission. He outlined the plan, agreed to and did pay all expenses, including 5 per cent, of stock subscriptions required by law, agreed that subscribers would lose nothing, and thus secured their signatures. The record clearly shows that this was a subterfuge, a dishonest organization, and a fraud upon the statute. There can be little room for differences of opinion upon this proposition, after a careful study of this record. Defendants in this manner sought to accomplish by indirection that which they could not do directly. Courts cannot permit undertakings like this to succeed, and upon this ground complainant should have been granted relief.

The other contention of complainant that it is not within the corporate power of defendant to engage in the street railway business must also be considered. It is the first time the question has been squarely before this court. From what has already been said in this opinion, the position that will be taken upon this question may be readily inferred. Were it not for the fact that it is urged that the business this defendant proposes to engage in is a general railroad business which could be done by it if disconnected from the street railway, and therefore that the intent and purposes of the other defendants and the organizers of this road are immaterial, it would be unnecessary to consider further the nature of the business this defendant is to engage in. The question is not what such a company under certain circumstances might do, and it is not urged that it might operate and maintain a street railroad. It is urged, as already stated, that this is a general railroad business within the general railroad law. What it proposes to do, as stated in this opinion, is gathered from the admissions of defendants and the undisputed evidence. The position taken by defendant that it is not to be operated as a street railway is not tenable. On account of the physical facts it cannot be maintained. It is to be set in as an integral part of a continuous line of street railway from Lansing to Jackson, operated by one street railway corporation, which can only perform those acts within the corporate powers of a street railroad. Defendant company’s road will be so situated that it cannot receive any other than street railway business. It seeks to avoid this inevitable conclusion by asserting that within complainant corporation but one stop will be made where passengers may enter and leave the cars. This does not meet the situation, nor fix the classification of this business. Nor is any such proposition of any binding effect upon this defendant. It will occupy its own right of way, and, if it may lawfully engage in this business, it may determine for itself and its convenience that a stop should be made at each street crossing. If the municipality may not regulate and control this traffic, who can interfere with this defendant from carrying out such a program ?

The length of this railroad, or that it is wholly within corporate limits, is not determinative of this question, nor that other roads organized under this law have within cities engaged in business. In every such case the business has admittedly been a general railroad business, or a business incident thereto, and in no instance has the question here raised been discussed or the corporate power of such roads been questioned. We are referred to no case similar to the case at bar, nor have we been able to find any. Whatever indications have been incidentally made in any opinions of this court are against the proposition that it is within the corporate powers of general railroads to maintain and operate street railways.

This case is one of very great importance, and the results of a decision in favor of defendants’ contention would be far reaching. The wisdom of the legislature in providing separate statutes for two classes of roads cannot be questioned, and the legislative intent to continue such separation is apparent. Over one class the municipality is given plenary powers to regulate and control. The other class is for the most part under general control of State authorities. These relations to the municipality and the State have become well known, and the operation of these laws has in general been satisfactory. It would be neither just nor wise for the courts by construction to change the well-settled policy of the State. If general railroads may engage in street railway business, how may courts distinguish which class of roads imposes an additional servitude, when within streets and highways? Certainly no municipal control could be imposed upon general railroads.

The conclusion is that it is not within the corporate power of a general railroad to engage in street railway business or lease or permit its road to be used for such purpose. The bill of complaint is drawn upon the.theory that a court of equity would restrain the commission of the acts charged as unlawful and unauthorized, and threatening a continuing trespass. A court in equity without doubt has jurisdiction to determine the rights of the parties in this case. No collateral attack is made upon the corporate organization. The question involved upon this branch of the case is a question of corporate power. That such question may be tried in a collateral proceeding has been held by this court. Orr v. Lacey, 2 Doug. (Mich.) 230; Joy v. Plank Road Co., 11 Mich. 155; Grand Rapids Bridge Co. v. Prange, 35 Mich. 400 ( 24 Am. Rep. 585); Day v. Buggy-Co., 57 Mich. 146 (23 N. W. 628, 58 Am. Rep. 352); Detroit City Ry. v. Mills, 85 Mich., at page 648 (48 N. W. 1007 ), and cases cited. Where property rights of individuals are invaded by the ultra vires acts of corporations, equity will interfere by injunction. Case last cited, supra; 29 Am. & Eng. Enc. Law (2d Ed.), p. 80, citing Delaware, etc., Canal Co. v. Railroad Co., 16 N. J. Eq. 321.

The decree of the court below should be reversed, and a decree entered granting a perpetual injunction as prayed.

Blair, C. J., concurred with McAlvay, J.

       Continued from Yol. 156.


text:
    PEOPLE v. GRANT.
    1. Municipal Corporations — Licenses—Ordinances—Transient Tradesmen — Charter—Revenue—Statutes.
    A city of the fourth class, under chapter 88,1 Comp. Laws, may impose a license fee on transient tradesmen, for purposes of revenue.
    2. Same — Licenses—Legislative Functions — Statutes.
    License fees, under 1 Comp. Laws, § 3108, must not be so heavy as to be prohibitory, and their reasonableness is a question for judicial determination.
    3. Same — Charter—Ordinance of City of Petoskey.
    An ordinance imposing license fees for revenue on transient traders of $2 per day for each day less than a week, $10 for a week, $25 for a month, and $50 for three months, is not oppressive, unjust, or unreasonable.
    Error to Emmet; Shepherd, J.
    Submitted February 15, 1909.
    (Docket No. 151.)
    Decided May 26, 1909.
    Robert Grant was convicted of doing business as a transient tradesman without having paid a license fee, and sentenced to pay a fine of $50.
    Affirmed.

      M. F. Quinon, for appellant.

      B. H. Halstead, City Attorney, for the people.
   Hooker, J.

Grant was prosecuted as a “transient tradesman ” in the city of Petoskey, under an ordinance which provided:

“ Section 1. The words ‘transient tradesmen,’for the purpose of this ordinance, shall be construed to mean and include all persons, both principals and agents, who engage in temporary or transient business in this city, or in traveling from place to place therein, selling goods, wares and merchandise, and who, for the purpose of carrying on such business, hire, lease or occupy any building or structure for the exhibition or sale of such goods, wares and merchandise. And no such transient tradesman shall be exempt from the provisions of this ordinance by reason of associating himself temporarily with any local dealer, trader or auctioneer, or by conducting such temporary or transient business in connection with or as a part of the business of or in the name of any local dealer, trader or auctioneer. * * *
“Sec. 3. Every transient tradesman before engaging in business, or before advertising or exposing his wares, goods or merchandise for sale, shall make affidavit, procure a transient tradesman’s license from the common council of the city upon application therefor, the same to be issued by the city clerk and he shall pay the city treasurer a license fee depending upon the time he proposes to engage in such business, to be stated in his application: Fifty dollars for three months, twenty-five dollars for one month, ten dollars for one week, and two dollars for each day less than one week. The time for which said license is to run and the date of its expiration shall be specified therein. All such licenses shall at the latest expire on the first Monday in June, following their issue; a license shall not give authority to more than one person to sell goods; each license shall state that it is not assignable nor transferable, and that it may be revoked by the common council at any time upon return to the licensee of the unearned license fee. * * *
“Sec. 7. Every person who shall in any manner engage in doing or transacting the business of a transient tradesman in selling goods, wares or merchandise without first having procured and paid for a license, as required by this ordinance, or who shall continue such business after the time limit in said license obtained therefor shall have expired.”

The facts are not in dispute. The defendant is a nonresident of said city and of this State, and was a transient tradesman within the terms of said ordinance. He had been in the habit for several years of engaging in such business in Petoskey about July 15th and continuing until about October 1st. He did so in 1907, and he procured no license. His stock was from $3,000 to $5,000 in value, and the rate of taxation for that year was $3.05 upon each $100 valuation. He was sentenced to pay a fine of $50, and to be imprisoned in the county jail until paid, not exceeding 90 days, and has appealed.

Counsel for respondent contend that:

(1) The charter, i. e., the general act for the incorporation of cities, has not conferred authority to pass this ordinance.
(3) The ordinance should be declared void because oppressive and unjust.
(8) It is unreasonable and void for that reason.

Petoskey is a city of the fourth class. The power to license conferred upon cities is found in 1 Comp. Laws, § 3107. Under the various subdivisions of this section, cities are given authority to license and regulate billiard tables, etc. (subdivision 5), auctioneers, etc. (subdivision 10), hawkers and peddlers (subdivision 11), wharfboats (subdivision 13), ferries (subdivision 13), taverns, saloons, etc. (subdivision 14), vehicles used for hire, etc. (subdivision 15), toll bridge, etc. (subdivision 16), drays, hacks, etc. (subdivision 39), dogs (subdivision 33). Subdivision 39, under which the city claims to have acted in passing the ordinance in question, provides that:

“ The council may also license transient traders, which shall be held to include all persons who may engage in the business of selling goods or merchandise after the commencement of the fiscal year, and the license fee in such cases may be apportioned with relation to the part of the fiscal year which has expired, but such traders, if they continue in the same business, shall not be required to take out a second license after the commencement of the next fiscal year: Provided, Such goods or merchandise have been assessed for taxes for said fiscal year.”
“(3108) Sec. 2. The council may prescribe the terms and conditions upon which licenses may be granted and may exact and require payment of such reasonable sum for any license as they may deem proper. * * *
“ (3109) No license shall be granted for any term beyond the first Monday in June next thereafter, nor shall any license be transferable, and the council may provide for punishment by fine or imprisonment, or both, of any person, who, without license, shall exercise any occupation or trade, or do anything for or in respect to which any license shall be required by any ordinance or regulation of the council.
“ (3110) All sums received for licenses granted for any purpose by the city or under its authority, shall be paid into the city treasury to the credit of the contingent fund.”

Our attention is called to the fact that, whereas, every other subdivision above cited contains the words “ license and regulate,” the word “regulate” is not found in subdivision 39. We have held that license fees may be imposed by cities for the purpose of regulation or for revenue. Wells v. Torrey, 144 Mich. 694 (108 N. W. 423). When for regulation and not for revenue, the fee should not exceed the necessary or probable expense of issuing the license and of inspecting and regulating the business covered by it (2 Cooley on Taxation [3d Ed. ], p. 1141); but if for revenue the extent of the tax must be understood to be left to the judgment and discretion of the municipal government, to be determined in the usual mode in which ‘ ‘ its legislative authority is exercised; but the grant of authority to impose fees for the purpose of revenue would not warrant their being made so heavy as to be prohibitory, thereby defeating the purpose ” (2 Cooley on Taxation [3d Ed.], p. 1140). It is true that many cases hold that when authority is given to a city to grant licenses for revenue, or for regulation and revenue, the courts will not inquire into the reasonableness of the amount,* but, in view of 1 Comp. Laws, § 3108, quoted above, we must hold that cities are restricted to reasonable license fees, whether imposed for regulation or revenue, and that involves a judicial determination of the question of reasonableness if a controversy arises. We are of the opinion that the 39th subdivision referred to authorizes the requirement of licenses for the purpose of revenue. Not only is the absence of the word ‘ ‘ regulate ” significant, but the nature of the business and the provisions as to other taxation clearly indicate it.

The fee imposed cannot be said to be unreasonable. It was as follows: Two dollars per day for each day less than one week; ten dollars for one week; twenty-five dollars for one month; fifty dollars for three months; two hundred dollars for one year. Three dollars for one day was held a reasonable fee for hawking and peddling. City of Alma v. Clow, 146 Mich. 443 (109 N. W. 853). Three dollars per day and $15 per year for selling merchandise was held reasonable in People v. Russell, 49 Mich. 617 (14 N. W. 568, 43 Am. Rep. 478). Ten dollars for one week and $50 per year for hawking and peddling spices, teas, coffee, baking powder, extracts, and essences was held valid in City of Muskegon v. Zeeryp, 134 Mich. 181 (96 N. W. 502). Five dollars a week for hawking and peddling was held valid in People v. Baker, 115 Mich. 199 (73 N. W. 115). See, also, City of Grand Rapids v. Norman, 110 Mich. 544 (68 N. W. 269); People v. Smith, 147 Mich. 391 (110 N. W. 1102).

We hold therefore that the license was lawfully imposed for revenue, that it was neither oppressive nor unjust, and that it was not shown to be unreasonable.

The conviction is affirmed.

Ostrander, Moore, McAlvay, and Brooke, JJ., concurred.


author: Brooke, J.

text:
    PEOPLE v. CONVERSE.
    1. Intoxicating Liquors —Statutes—Practice —Argument—
    Remarks of Prosecutor — Criminal Law.
    It is error, in a prosecution, under 2 Comp. Laws, § 5412, for keeping a place where intoxicating liquors are sold, for the prosecuting attorney to argue that the respondent is a person addicted to the excessive use of intoxicating liquors.
    2. Same — Evidence—Trial—Remarks qf Court.
    It is error for the trial court in such a case to admit testimony of respondent’s intoxication and to comment on the effect of the same as proof that the respondent had intoxicating liquors; respondent not being charged with excessive use of intoxicants.
    3. Same — Evidence — Common ' Carriers — Shipments to Local-
    Option Counties — Statutes.
    Testimony that the respondent as agent for an express company ordered beer shipped into a local-option county, and the consignee who took portions of the consignment at different times paid for the beer at the time of ordering it, does not warrant the court in instructing the jury that, as a matter of law, the acts of respondent, if the testimony was believed, were in violation of the local-option law.
    4. Same.
    No liability attaches to express companies or-their agents for transporting to consignees in a local-option county intoxicating liquors purchased outside of such county.
    Error to Wexford; Chittenden, J.
    Submitted February 15, 1909.
    (Docket No. 154.)
    Decided May 26, 1909.
    Dean Converse was convicted of violating the liquor law, and sentenced to imprisonment for 90 days in the Detroit house of correction and to pay a fine of $200.
    Reversed.

      Gaffney & Miltner, for appellant.

      William H. Yearnd, Prosecuting Attorney, for the people.
   Brooke, J.

The information in this case charges the respondent upon July 29th, and on divers days between that day and July 31, 1908, with keeping a place where ‘ ‘vinous, malt, brewed, fermented, spirituous, and intoxicating liquors, and mixed liquors and beverages, a part of which were intoxicating, were given away and furnished.” The respondent was convicted and sentenced to the Detroit house of correction for 90 days- and to pay a fine of $200 within 48 hours, and in default thereof to an additional 90.days in the Detroit house of correction. The respondent was the local agent of the Pacific Express Company at the city of Cadillac in the county of Wexford. The office of the company was in the rear end of a shoe store. At the rear end of this store was a shed or outbuilding through which the express company received and delivered merchandise intrusted to it. This outbuilding was also the rear exit from the shoe store. It was the claim of the respondent that he handled the beer solely in his capacity as agent for the express company.

The first assignment of error to be considered is that the court erred in permitting the prosecuting attorney, in his opening address to the jury, to refer to the respondent in the following language, “The respondent is a person addicted to the excessive use of intoxicating liquors, ” in permitting witness Adley to testify that he had frequently seen the respondent in an intoxicated condition, and in overruling the respondent’s objection in the following terms:

“If he was drunk all the time in a prohibition town, it would show he had some whisky that he could give to someone else.”

Further that the court erred in permitting witness Dolan to testify that he had seen respondent in an intoxicated condition in the city park. We are of the opinion that the admission of the foregoing testimony and the remarks of- the court in connection therewith are erroneous and clearly prejudicial to the respondent’s rights. The respondent was not upon trial charged with the excessive use of intoxicating liquors, but for an entirely different offense. Guilt of an offense charged cannot be predicated upon testimony of guilt of an unrelated offense of which the party does not stand charged at the trial. That the minds of the jury would be influenced against respondent by such testimony and comment in a local-option town is scarcely to be doubted.

Error is assigned upon the judge’s charge, particularly that part of it which is as follows:

“I charge you, as a matter of law, that if you believe the statement and testimony of the witness Bowen, to wit, that he went to this express office and to Mr. Converse, this respondent, and told him that he wanted two cases of beer, and that Mr. Converse told him it would be $5, and Mr. Bowen testifies that he does not remember whether he paid him the $5 at once, or only $2.50, but that in the end did pay him the $5, and that this beer came, and was stored therein Mr. Converse’s possession, and Mr. Bowen went there from time to time and was allowed to take away quantities of this beer until it was gone, I charge you that such an act as that, under the law, would be keeping a place and furnishing beer contrary to the spirit and intent of the local-option law, and the respondent, if you find this to be true, would be guilty.”

The testimony of Clarence C. Bowen, on which the learned circuit judge based the foregoing charge, is, in part, as follows:

“ During the month of July I procured two cases of beer. I ordered, and it came through his company. One case I got, and took away direct, and the other case I got. He had it in the back room, and I took it as I wanted it. It was not in his charge. It just sat out there in the back room — the stormhouse — and later I came there and took a few bottles away as I wanted them. I think I made three different trips. * * * The two cases were ordered to be sent by the Pacific Express. Company, and I came up and asked if they were there,, and he said they were, and one I took away in its entirety. Do not know whether the other case was addressed to me on the box or not. I did not look to see, and that I took away in parcels. When I went there it was in the storm-house, and I told him to leave it there so I could get it. He knew nothing of my intention to take it away in parcels. He had no way of finding out my intention. * * * I desired to buy some beer and went to the express office for the purpose of purchasing an express order and sending for the beer. I paid him $2.50 and 5 cents for the money order and the stamp. When there I asked Converse where I could send for the beer and get it the quickest, and he told me I could get it quicker by buying at Copemish, * * * and I then gave him money for the express order, and said, ‘ I will buy the stamp,’ and further said, ‘ I don’t know the man’s name, and you write for it, but to send for it to Copemish and have it sent to me,’ and I got both of the cases from the office myself.”

It seems to us that a fair reading of this testimony warrants an entirely different construction than that placed upon it by the learned circuit judge in his charge to the jury. It is quite apparent that the ordering of the beer by respondent was simply for the reason that Bowen did not know the name of the man at Copemish to whom to write, and that the act was solely one of accommodation on the part of the respondent. The beer was consigned to Bowen. Section 5412, 2 Comp. Laws, being the section of the local-option act violation of which was charged, reads as follows:

“That it shall be unlawful for any person, directly or indirectly, himself or by his clerk, agent or employé, to manufacture, sell, keep for sale, give away or furnish any vinous, malt, brewed, fermented, spirituous or intoxicating liquors, or any mixed liquor or beverage, any part of which is intoxicating, or to keep a saloon or any other place where any such liquors are manufactured, sold, stored for sale, given away or furnished, in any county of this State ■on and after the first day of May next, following after the adoption by the board of supervisors of such county of a resolution prohibiting the same, as provided in section 13 of this act, so long as such resolution remains unrepealed; Provided, however, That the provisions of this section shall not apply to druggists, or registered pharmacists in selling any such liquors under and in compliance with the restrictions and requirements imposed upon them by the general laws of this State.”

This section does not either in terms or by construction prohibit common carriers from transporting or delivering intoxicating beverages within a local-option county when purchased outside thereof. No liability, therefore, attaches to express companies or their agents, under its provisions, for transporting or delivering to consignees in local-option counties spirituous, intoxicating, malt, brewed, fermented, or vinous liquors.

There was, however, testimony tending to prove that respondent, not as agent for an express company, but on his own account, kept a place where liquors were furnished to others, and that liquors, furnished by him, were drunk by others on the premises.

There should be a new trial.

Grant, Ostrander, Moore, and McAlvay, JJ., concurred.