author: Stone, J.

text:
    COMMON COUNCIL OF THE CITY OF DETROIT v. ENGEL.
    1. Municipal Corporations — Detroit Charter — Bonds.
    By amendment to section 41, chap. 7 of the “old charter,” in effect November 27, 1916, held, that the common council of the city of Detroit, with the consent of the board of estimates, had authority to issue bonds for the erection of buildings for hospital purposes.
    2. Same — Bonds—Approval by Board of Estimates.
    Where the common council of the city of Detroit allowed and approved a certain sum, to be raised by taxation for the recreation commission fund, for the purchase of lands and buildings thereon for use as a play center, and the board of estimates refused the same as a tax item but passed it as a bond issue, as park and boulevard bonds, subject to the approval of the council, which body thereafter concurred, held, valid, although it would have been more orderly for the council to have acted first.
    8. Same — Bonds Wrongly Named — Validity.

      Held, that bonds wrongly named are not' therefore necessarily invalid, since it will be presumed that the proceeds of said bonds will be applied as legally authorized.

      4. Same — Sewer Purposes — Authority to Bond.
    Under the charter of the city of Detroit previous to its revision under the “home-rule law,” the common council had power to raise by taxation for sewer purposes in one year §200,000 and also to bond for “such sums of money as shall be deemed necessary and expedient,” provided the gross debt limitation was not exceeded.
    5. Same — Bonds—Illegal Purpose.
    There being no authority in said charter of the city of Detroit or in any special act authorizing the purchase of real estate “for extension of public service,” bonds authorized for the purchase of certain frontage at the harbor line, held, invalid. ' ,
    6. Same — Amendment of Charter — Validity of Bonds.
    Where the charter of the city of Detroit (Charter 1883, as amended) empowered the common council by and with the consent of the board of estimates annually to provide a public sewer fund, a public building fund, and a fund for the purchase or construction of public utilities, and to issue bonds therefor, and all necessary steps were taken under said authority to issue certain bonds for said purposes, without being submitted to vote of the people, held, that said bonds were valid although before said bonds were sold a new charter under the provisions of the home-rule act (Act No. 279, Pub. Acts 1909) went into effect requiring “approval by three-fifths of the electors voting thereon.”
    7. Same — Detroit Charter — Bonds—Ordinance—Resolution.
    The contention that action looking to the issue and sale of bonds should have been taken by ordinance rather than by resolution, held, not sustained, in view of title 6, chap. 1, § 6, of said charter.
    8. Same — Bonds—Municipal Bonds — School Bonds.

      Seld, that the school bonds and library bonds of the city of Detroit are not to be included in the two per cent, limit of indebtedness for municipal purposes specified in the charter.
    9. Same — Detroit Charter — Construction—Repealing Clause— Saving Clause.

      Seld, that, in the adoption of the new charter, construing the “repealing clause” and the “saving clauses” together, it was not the intention to abate the right to carry out the sale of bonds authorized under the old charter.

      10. Same — Annual Expenses — Capital Expenditures.
    Under title 6, chap. 7, § 5, of the “new charter,” bonds maybe issued to meet “capital expenditures” so-called, as distinguished from ordinary annual expenses of a department for the coming year.
    Certiorari to Wayne; Hunt, Codd, and Hosmer, JJ.
    Submitted July 2, 1919.
    (Calendar No. 28,841.)
    Decided July 17, 1919.
    Mandamus by the common council of the city of Detroit to compel George Engel, controller, to prepare and execute certain bonds. From an order granting the writ, defendant brings certiorari.
    Affirmed.

      Walter Barlow, for appellant.

      Edmund Atkinson, for appellee.
   Stone, J.

This case is here upon certiorari to review proceedings had in the circuit court for the county of Wayne on the petition of the common council of the city of Detroit, for a writ of mandamus commanding George Engel, controller, to prepare bonds of the city and to cause them to be duly executed and recorded in the books of his office and transmitted to the city treasurer for delivery to the parties to whom they have been awarded, incident to an effort to . effect their sale. In the petition of the plaintiff to the circuit court there is not only a presentation of its contentions in support of the validity of the bonds under consideration, but a full presentation of the reasons upon which the controller based his refusal to prepare the bonds. In his answer and return the defendant admits all the facts presented, but he denies that from said statements any inference should be drawn that the bonds mentioned should be by him, as controller, prepared and transmitted to the treasurer of the city of Detroit for delivery to the persons to whom they have been awarded, until their validity has been adjudicated, and his duty in the premises determined. And because of the matters which appear from said petition he denies that plaintiff is entitled to the writ of mandamus. The case was heard below before circuit judges George S. Hosmer, George P. Codd and Ormond F. Hunt sitting en banc. Judge Hunt was designated to prepare a written opinion. That opinion, signed by all of the judges who heard the case, appears in the record. It presents so clearly and thoroughly the questions involved and decided, and the conclusions reached are so in accord with our views, that we insert the same here:

“The contention in this case involves the validity of certain bonds authorized by the common council of the city of Detroit and about to be issued, but which respondent refuses to prepare, record and deliver in compliance with the provisions of the city charter respecting his official duties, on the ground that said bonds cannot be lawfully issued. It is conceded and it is manifest that if the bonds involved herein are valid, the preliminary proceedings relative thereto, and all of which were had previous to June 27, 1918, must conform in substantial respects to what is commonly known as the old charter of the city of Detroit as amended and also to the provisions of the new charter. Under authority of section 7, chapter 11 of the Detroit city charter, the common council by resolution authorized and the board of estimates of the city approved, except as hereinafter stated, the issuance of bonds as follows:
“A. $100,000 Tuberculosis Hospital Bonds.
“In the early part of 1917 and prior to the ensuing fiscal year beginning July 1, 1917, the common council and the board of estimates authorized and approved in the public health fund to be realized by the sale of bonds denominated ‘public building bonds,’ an aggregate sum of $1,070,000, of which $1,000,000 was, and still is, contemplated to be expended from time to time in the erection of a tuberculosis hospital. $100,-000 of the above bonds are involved in this suit, said bonds having been sold to the National City Company of New York and Detroit in December, 1918.
“B. $250,000 Receiving' Hospital Bonds.
“In the early part of 1918 and prior to the ensuing fiscal year beginning July 1, 1918, the common council and the board of estimates authorized and approved in the poor commission fund to be realized by the sale of bonds denominated ‘public building bonds/ the sum of $250,000 to be expended from time to time in an additional unit to the receiving hospital. The entire $250,000 of bonds are involved in this suit, said bonds having been sold to the National City Company. •
“G. $165,000 Park and Boulevard Bonds.
“In the early part of 1918 and prior to the ensuing fiscal year beginning July 1, 1918, the common council allowed and approved the sum of $165,000 to be raised by taxation, and to be expended as an item in the recreation commission fund for the purchase of land and buildings thereon for use as a play center; the board of estimates refused to allow the above item as a tax item, but passed it and allowed it as a bond item adopting a resolution whereby, subject to the approval of the common council, bonds in said sum of $165,000, to be known as ‘park and boulevard bonds/ were authorized to be issued; the common council thereafter adopted the resolution of the board of estimates authorizing the above bonds in the above amount to be issued, and they are involved in this suit, said bonds having been sold to Matthew Finn in January, 1918.
“D. $988,000 Public Sewer Bonds.
“In the early part of 1918 and prior to the ensuing fiscal year beginning July 1, 1918, the common council and board of estimates authorized and approved in the public sewer fund to be realized by the sale of bonds denominated ‘public sewer bonds/ an aggregate sum of $7,615,000 to be expended in building sewers; $988,000 of these bonds are involved in this suit, said bonds having been sold to Merrill, Oldham & Company, Boston, in November, 1918.
“E: $200,000 Public Building Bonds.
“In the early part of 1917 and prior to the ensuing fiscal year beginning July 1, 1917, the common council and board of estimates authorized and approved in the public building fund to be realized by tire sale of bonds denominated ‘public building bonds/ the sum of $258,000 ‘to cover the cost of purchasing frontage of 172.17 lineal feet of ground at the harbor line to be used for the extension of public service.’ See common council proceedings, April 24, 1917, p. 508. See record of action of common council proceedings, April 24, 1917, pp. 524-25. See record of board of estimates approval and common council proceedings, May 1, 1917, pp. 587-8.
“On June 25, 1918, the qualified voters of the city of Detroit adopted a home rule charter framed under the provisions of Act No. 279 of the Public Acts of 1909, as amended, and this charter became effective June 27, 1918.
“It appears by the petition in this case that all proceedings authorizing the above bonds were taken under the charter of 1883 as amended by the legislature and later by the electors under the home rule bill; further that none of said bonds were submitted to the electors for approval; that the above bonds were sold several months after the new charter became effective and they have not been issued and delivered to the purchasers, some of said purchasers having refused to accept said bonds because of objections to the legality of bonding powers and bonding proceedings.
“There are two_ classes of objections which may be raised to the validity of the above proposed issues; the first class relates to the law and facts of the individual case; the second class relates to certain fundamental objections which are applicable to all the bonds. These objections may be briefly summarized as follows:
“1. The several above bonds are not legal inasmuch as they have not been submitted to and approved by three-fifths of the qualified electors of the city of Detroit as required by subdivision (e) of section 5 of Act No. 279, Pub. Acts of 1909, as amended, under which said act the city of Detroit adopted its home rule charter effective June 27, 1918; said subdivision (e) reading as follows:
“‘Seo. 5. No city shall have power * * * (e) * * * to authorize any issue of bonds except special assessment bonds, refunding bonds, and emergency bonds, as defined by this act, and bonds which it is annually authorized to issue, unless approved by tbree-fiftbs of tbe electors voting tbereon at any general or special election.'
“The relator claims that the bonds in suit are bonds which the city of Detroit is annually authorized to issue.
“2. That all proceedings taken in the matter of the authorization and approval of the above bonds up to June 27, 1918, also all proceedings in the matter of the sale of above bonds, including the proceedings taken in January, 1918, were so taken by resolution instead of by ordinance as provided by section 17, chapter 1, title 3, of the new charter effective June 27, 1918.
“3. That if library taxes and bonds, and school taxes and bonds heretofore issued (i. e., prior to June 27, 1918), authorized to be issued in lieu of taxation must be included within the city tax limit of two per cent., then a part if not all of above bonds are illegal, because the total of city taxes and bonds authorized to be issued in lieu of taxation, together with the library and school taxes and bonds exceed said tax limit of two per cent. See petition, pp. 11 and 12.
“4. That the 'saving clause’ in the new charter is not sufficient to continue in force proceedings taken before the adoption of the new charter, under which it is contemplated to issue the bonds involved herein. See petition, p. 12.
“5. That the authorization, of $165,000 public improvement bonds to be issued for recreation purposes did not originate in the common council; that the common council did pass the above item as a tax item and that thereafter the board of estimates approved the item as a bond item, which approval was subsequently concurred in by the .common council, and that this proceeding is so irregular in itself as to invalidate the issue of bonds based thereon.
“An examination of the provision of the old charter and amendments discloses that in the absence of a special authorization therefor by special act, the general power of the common council to issue bonds is defined and limited by the charter, section 7, chapter 11, as amended, and so far as the same is applicable to the facts in the instant case, the same reads as follows:
‘“Sec. 7. The common council shall also have power by and with the consent of the board of estimates to provide for the public sewer fund for the construction of trunk or public sewers, and a public building fund and a fund for the purchase or construction of public utilities, by borrowing upon the faith and credit of said city and upon the best terms that can be made, such sums of money as shall be deemed necessary and expedient, and to issue the bonds of the city therefor in lieu of raising the same by taxation,’ etc.
“A. $100,000 Tuberculosis Hospital Bonds.
“B. $250,000 Receiving Hospital Bonds.
“The above proposed issue of bonds is considered together because the source of authority to issue them, and the limitations thereon, and the proceedings taken thereunder are governed by the same provisions of law. The original authority in the old charter to issue these bonds was contained in section 41, chapter 7 of the charter, which, among other things, provides:
“ ‘Sec. 41. The common council shall have power * * * to establish, organize and maintain an almshouse, and a hospital; to purchase the necessary grounds, and erect and provide for erecting the necessary buildings therefor, either within or without the city limits, and to use, control and regulate the same as fully as though located within such limits; and for such, purchase of hospital grounds, and for the erection of hospital buildings, the said common council shall have power to expend and appropriate out of the contingent fund of said city, a sum not exceeding fifteen thousand dollars.’
_ “In interpreting and construing the above provisions of said section 41, it seems clear that the power of the common council was limited to an expenditure out of the contingent fund to a sum not to exceed $15,000; the provisions of said section do not authorize the common council to issue bonds in any sum whatsoever, and in 1905 by Act No. 404, Local Acts 1905, the legislature authorized the city of Detroit to issue bonds in the sum of $100,000 for the purpose of erecting and equipping a hospital for contagious diseases. The common council exercised this power by an issue of bonds to that amount, and having exhausted its power under said local act, the common council was remitted to the power over hospitals as outlined in said section 41.
“In 1914 the common council, without having obtained further authority or power relative to hospitals, attempted to authorize under the guise of public building bonds $695,000 for hospital site and buildings. This attempted exercise of power by the common council came before the Supreme Court in the case of Detroit Common Council v. Engel, 187 Mich, p. 88, and a discussion of the hospital bonds appears in said opinion at pp. 98-101. In commenting upon the hospital bond proposition the Supreme Court notes an objection at page 99 as follows:
‘“That buildings for t which public building bonds may be authorized and sold by the common council are public buildings, within the meaning of the charter, which does not include garbage plants or hospitals. Not only is a garbage fund and a hospital fund “otherwise provided for” in the charter, which at least raises a doubt as to the intent to include those subjects in the section relating to a public building fund, but the legislative interpretation of the council’s authority in that connection makes plain that it does not, as subsequently shown.
“ ‘It is to be borne in mind that the provisions referred to are a part of the city charter granted by the legislature to Detroit •before the constitution of 1909 gave cities the power, through the legislature, to adopt, revise, and amend their charters, and, as just pointed out, said charter remains in force until the city sees fit to change it. Before the common council could issue bonds to erect and equip a hospital for contagious diseases, it was found necessary to obtain authority to do so from the same power which granted the charter (Act No. 404, Local Acts 1905), and in like manner an amendment of the city charter was obtained (Act No 670, Local Acts 1905) to authorize the common council to issue bonds to the extent of $100,000 to provide a garbage and refuse plant. While it is now within the power of the city to amend its charter and authorize the council to issue further bonds for that purpose, we do not discover that it has done so, and, until it does, that authority does not rest in the council.
“ ‘The “public building bonds” proposed to be sold, and involved here, total $678,000. Exclusive of garbage reduction plant and hospital site and buildings, $625,000 public building bonds were originally authorized. It is to be assumed that the proceeds of any bonds sold will be applied as legally authorized.
“ ‘It follows from the foregoing that the writ of mandamus granted by the circuit court cannot be sustained in its entirety.
‘“Distinct determinations of the circuit court as to different proposed issues of bonds are involved and presented for review in this proceeding. The legal and illegal matters are independent of each other and plainly ascertainable. This court may therefore quash or correct such parts as are illegal and affirm as to those which are legal.
“ ‘We accordingly conclude, for the reasons stated, that the order for a writ of mandamus he affirmed as to the $200,000 public sewer bonds and the public building bonds to the previously authorized amount of $625,000 (deducting the excess from either the 30-year or 10-year issue as relators may elect), and reversed as to the other proposed issues, which are hereby held illegal; this without costs to either party.’
“The Supreme Court in the above opinion having determined that hospital bonds were not public building bonds within the meaning of the charter, and that the attempted authorization of such hospital bonds were illegal, thereafter an amendment to section 41 of chapter 7 of the old charter was proposed in the common council and thereafter adopted, the same was submitted to the electors and adopted November 7, 1916, in effect November 27,. 1916, which, among other things, provides:
‘“Section 41. The common council shall have power to purchase real estate for use of the said corporation * * * ; also make appropriations, to he met either by direct tax levy or bond issue, for the purchase of hospital grounds either within or without the corporate limits of the city and for the erection of necessary hospital buildings and the maintenance thereof; provided, that no such bonds shall he issued without the consent of the hoard of estimates of said city.’
“It will be noted that in this amendment to section 41, the $15,000, the sum limited in the original section as above quoted, is eliminated, and in its stead_, among other things, appears the phrase as aforesaid, ‘also make appropriations, to be met either by direct tax levy or bond' issue.’
“The resolution adopted by the board of estimates authorizing the bonds for the erection of a tuberculosis hospital appears as Exhibit 3 attached to the petition, and, among other things, appears the following:
“ ‘Resolved, that by and with the consent of the hoard of estimates bonds of the city of Detroit in the amount of $1,680,000, which shall be denominated “public building bonds of the city of Detroit,” be issued under authority of section 7, chap. 11, of the Local Acts of 1883, approved June 7, 1883, being an act entitled, “An act to provide a charter for the city of Detroit, and to repeal all acts and parts of acts in conflict' therewith, as amended, and all the other relevant provisions of the charter of the city of Detroit,” etc. * * *.
“ ‘Resolved, that this board does hereby approve of the several items In the estimates of the public health fund hereinafter set forth, and does hereby approve of, consent to and authorize the issue of public building bonds as hereinbefore appears to have been determined upon by said common council in the sum of $1,070,000 to be applied as follows:
“ ‘Nurses’ Home ............................ $65,000
“ ‘Tuberculosis Hospital, one unit............ 1,000,000’
“As above stated, all these proceedings were had in 1917 and prior to the ensuing year beginning July 1, 1917.
“The proceedings as already stated authorizing. $250,000 receiving hospital bonds were had in 1918 and prior to the ensuing fiscal year beginning July 1, 1918. It is to be noted, however, that the appropriation was made for these bonds in the poor commission fund, while bonds for the tuberculosis hospital was made in the public health fund. They are both, however, classed as public building bonds.
“Relative to the proceedings, however, we find and determine as stated by the Supreme Court in its opinion in Detroit Common Council v. Engel, 187 Mich, at p. 100, ‘it is to be assumed that the proceeds of any bonds sold will be applied as legally authorized.’
“We further find and determine that both the appropriations for the tuberculosis hospital and for the receiving hospital are not invalidated because of any objections raised in said Detroit Common Council v. Engel, supra, the same having been authorized by the above amendment to section 41. Other objections to the validity of these bonds and which are likewise applicable to all the bonds in question, will be considered later in this opinion.
“C. $165,000 Parle and Boulevard Bonds.
“As to these bonds, as above stated, early in the year 1918 and prior to the fiscal year beginning July 1, 1918, the common council and board of estimates authorized, allowed and approved the sum of $165,000 to be raised by taxation to be expended as an item in the recreation commission fund for the purchase of lands and buildings thereon for use as a play center.
“As abQve stated, the common council allowed and approved the above sum to be raised by taxation and the same was duly referred to the board of estimates. This board refused to allow the above as a tax item, but passed it as a bond issue, adopting a resolution subject to the approval of the common council that bonds in the sum of $165,000 be allowed as park and boulevard bonds, and thereafter the common council concurred in the action of the board of estimates and the validity of all these bonds is involved in this suit.
“The above proceedings were taken in pursuance of an amendment to the charter of the city of Detroit adopted November 3, 1914, which went into effect November 14, 1914. This is a new chapter for the purpose of providing for a commission to be known as The recreation commission.’ Provision was made that the commission should consist of ten members, five citizens of Detroit appointed by the mayor, together with the superintendent of schools, the park commissioner, the librarian of the public library, the police commissioner and the commissioner of public works.
“Section 4 of said amendment is as follows:
“ ‘Section 4. The said city of Detroit shall raise by annual tax the necessary funds to provide for the establishment and extension of a recreation system under the commission through the use of facilities already owned by the city, and may raise moneys by annual tax in such sums or issue of bonds of said city for the acquirement of additional property or for the erection of necessary buildings for the further extension of the recreation system under said commission.’
“We find and determine that while it would have been more in accordance with orderly procedure for the common council to have originally authorized the appropriation and the same thereafter allowed and adopted by the board of estimates, still we are of the opinion that the proceedings by the common council and the board of estimates, as above stated, are not fatal to the validity of the issue.
“We likewise find and determine that the name of the bonds, to-wit, park and boulevard bonds, even if wrongfully so denominated is not fatal to their validity, adopting the reasoning of Detroit Common Council v. Engel, 187 Mich, at p. 100, to the effect that it is to be assumed that the proceeds of any bonds sold will be applied as legally authorized.
“This disposes of the special objections relating to this issue; the objections which are applicable to all the bonds will be considered later in this opinion.
“D. $988,000 Public Sewer Bonds.
“As above stated, in the early part of 1918 and prior to the ensuing fiscal year beginning July 1, 1918, the common council and board of estimates authorized and approved in the public sewer fund to be realized by the sale of bonds denominated ‘public sewer bonds/ an aggregate of $7,615,000 to be expended in public sewers, and the above sum of $988,000 of these bonds is involved herein.
“Section 1 of chapter 11 of the old charter of the city of Detroit, among other things, provides:
“ ‘Section 1. The revenues and moneys of the corporation shall be divided into the following funds, viz.: * * *
“ ‘Eight. Public sewer fund, to defray the expenses of constructing and maintaining public sewers in said city;
“ ‘Section ,4. The Common council shall also have power annually to levy, assess and collect taxes, not exceeding two hundred thousand dollars, on the assessed value of all the real and personal estate in said city, made taxable by the laws of this State, in order to defray the expenses of constructing sewers, and for the purpose for which the sewer fund is constituted as above.
“ ‘Section 7, as amended. The common council shall also have power by and with the consent of the board of estimates to provide for the public sewer fund for the construction of trunk or public sewers, and the public building fund, and a fund for the purchase or construction of public utilities, by borrowing upon the faith and credit of said city, and upon the best terms that can be made, such sums of money as shall be deemed necessary and expedient, and to issue the bonds of the city therefor in lieu of raising the same by taxation: Provided, however, That the gross debt of the city, after deducting the means in the sinking fund of said city and not including bonds already issued by the board of water commissioners (but bonds hereafter issued by said board of water commissioners shall be included) or bonds issued against special assessments, shall never exceed four per centum of the assessed value of all the real and personal property of said city and all bonds or other indebtedness issued or credit created in excess thereof shall be void. Bonds issued by authority of this section shall be respectively denominated “public sewer bonds,” “public building bonds” and “public utility bonds,” and shall mature in not more than thirty years from the date of issue, and bear interest at a rate not exceeding five per centum per annum.’
“We find no irregularity in the proceedings either of the common council or board of estimates relative to the authorization, appropriation or allowance of the above item.
“The first serious question is whether or not section 7 authorizes the common council to issue bonds in excess of the amount which may annually be raised by taxation as provided in section 4.
“Insofar as the levying and assessing of taxes is concerned, the common council by the provisions of section 4 is limited to the sum of $200,000 a year, and if the words in section 7, to-wit, ‘to issue the bonds of the city therefor in lieu of raising the same by taxation’ are given the ordinary construction, then all bonds for sewer purposes under the provisions of section 7 must be limited to $200,000 for any one year.
“We have examined the definitions of ‘in lieu of’ in both the general and law dictionaries and can find no definitions except ‘in place of,’ ‘in room of,’ or ‘instead of.’
“We have called this to the attention of the assistant corporation counsel who made the oral argument in support of the petition, and he has conceded that unless ‘in lieu of’ is construed as meaning ‘in addition to,’ then and in that case the $200,000 limit in section 4 governs the instant case.
“If this were a new case we should have no hesitancy in giving the words the ordinary meaning, but we are confronted with the decision of the Supreme Court in Detroit Common Council v. Engel, 187 Mich, pp. 88-101, and find that the Supreme Court there affirmed the decision of the Wayne circuit court as to the authorization of $200,000 public sewer bonds which were a part of an authorization of $503,000 for public sewers. See opinion of Mr. Justice Steere, p. 90.
“We also find from an examination of the proceedings of the common council of the city of Detroit for a great many years past that it has been the habit of the common council of authorizing and issuing bonds in excess of $200,000 in individual authorizations and approvals.
“While we do not think that a practical construction ought in all cases to be controlling, we are disposed in the instant case to give such practical construction, together with the decision of the Supreme Court in the last case above cited, great weight, and, accordingly hereby overrule the objection made in the instant case, contenting ourselves with the observation that if it had not been so practically construed, both by the municipal authorities and the Supreme Court in both cases, we would be constrained to decide otherwise.
_ “Objections applicable to all the bonds will be considered later in this opinion.
“E. $200,000 Public Building Bonds.
“As above stated, in the early part of 1917 and prior to the ensuing fiscal year beginning July 1, 1917, the common council and board of estimates authorized and approved in the public building fund to be realized by the sale of bonds denominated ‘public building bonds,’ the sum of $258,000 ‘to cover the cost of purchasing frontage of 172.17 lineal feet of ground at the harbor line to be used for the extension of public service.’
“We have examined the record of the action of the common council proceedings and the record of the board of estimates approvals and find that the purpose of the purchase was as above stated.
“We have discovered no special act authorizing the purchase of real estate ‘for the extension of public service.’
“If these bonds are authorized it must be in pursuance of section 7, chapter 11, which limits the powers of the common council to issue bonds in lieu of raising the same by taxation, ‘to provide for the public sewer fund for the construction of trunk or public sewers, and the public building fund, and a fund for the purchase or construction of public utilities.’
“It nowhere appears in the record that this land is for any of the purposes mentioned in said section 7, and the purpose being mentioned in the resolution itself, there being no authorization in the charter for any such purpose, we find and determine that the authorization and approval of this purchase was invalid and, accordingly, the attempted issue of $200,000 public building bonds in this case is void.
“Objections Applicable to All the Bonds Involved Herein.
“1. The several above bonds have not been submitted to and approved by three-fifths of the qualified electors of the city of Detroit as required by subdivision (e) of section 5 of Act No. 279, Pub. Acts 1909, as amended, under which .said act the city of Detroit adopted its home rule charter effective June 27, 1918; said subdivision (e) reading as follows:
" ‘Section 5. No city shall have power (e) * * * to authorize any issue of bonds except special assessment bonds, refunding bonds and emergency bonds defined by this act, and bonds that it is annually authorized to issue, unless approved by three-fifths of the electors voting thereon at any general or special election.’
‘Tt is conceded that none of the above bonds are ‘special assessment bonds,’ ‘refunding bonds’ or ‘emergency bonds,’ and if the above issues are valid, they must be bonds which the city ‘is annually authorized to issue.’
_ “It will be noted that said section 5 is not a delegation of power to the city to issue bonds, but is a limitation upon that power, and after a careful search of the charter provisions relative to conferring such powers we find no other general power except what is contained in section 7, chapter 11 of the charter aforesaid.
“In Detroit Common Council v. Engel, 187 Mich. 88, we find that this same objection is made against the validity of the bonds involved in that suit, and at page 96 Mr. Justice Steere, who delivered the opinion, among other things, says:
‘“As before stated, tbe course prescribed by section 7, cbap. 11, of tbe charter, was followed in authorizing and issuing these bonds, but It is urged that, with tbis limit fixed by a popular vote amending the section in question, bonds not exceeding the limit cannot be lawfully authorized and issued in compliance with the provisions of said section unless each issue is approved by a three-fifths vote of the electors at a general or special election, in compliance with subdivision “e” of section 5 of the home rule act of 1909, as amended by Act No. 203, Public Acts 1911. As amended said subdivision provides:
“ ‘ “No city shall have power * * * to * * * authorize any issue of bonds except special assessment bonds, refunding bonds, and emergency bonds as defined by this act and bonds that it is annually authorized to issue, unless approved by three-fifths of the electors voting thereon at any general or special election.”
“ ‘As originally enacted, the subdivision does not contain this restriction. Without it the authority of the common council and board of estimates to exercise the powers conferred and previously exercised under said section 7, chap. 11, of the charter, cannot be seriously questioned.’
“We are constrained to find that Mr. Justice Steere, who delivered the opinion, erroneously stated above ‘as originally enacted, the subdivision does not contain this restriction.’
“We find from examination of the original enactment that the restriction was therein contained. What might have been the decision of the Supreme Court without this assumption we are unable to state. But in any view of the case, as already referred to, the bonds for public sewers and the municipal court building were approved.
“While not free from doubt, we are constrained to hold that bonds which are from time to time authorized to be issued in lieu of taxes and which may be annually levied, are bonds which the city ‘is annually authorized to issue/ or, in other words, bonds which the city under annual recurring authority to tax may be issued in lieu of taxation.
“2. That all proceedings taken in the matter of the authorization and approval of the several issues of bonds were so taken by resolution instead of in the form of ordinances.
“As provided by section 17, chapter 1 of the new charter, effective June 27, 1918, said section 17 of chapter 1, page 24, is as follows:
“‘Section 17. All matters of legislation shall be presented, considered and enacted by the council in the form of ordinances. The style of all ordinances shall be “It is hereby ordained by the people of the city of Detroit.” No ordinance shall embrace within its provisions more than one object. No ordinance shall be revised, altered or amended by reference to its title only, but the section or sections of the ordinance altered or amended shall be re-enacted and published at length. No ordinance shall be passed by the council within five days of its introduction, except in the case of a public emergency involving the peace, health, or safety of the people of the city, and no ordinance shall take effect, except in the case of such an emergency, until the thirtieth day after its approval, including the date of approval, but not the date of taking effect: Provided, that a two-thirds vote of all members elect shall be required to pass any ordinance within the period of five days herein prescribed or to give an ordinance immediate effect in the case of an emergency.’
^The above objection, if valid, relates not to matter, but to form, which form was entirely proper under the provisions of the old charter which governed at the time that the preliminary proceedings were had herein. The administrative proceedings under the new charter relative to the certification and issue of the bonds we do not consider ordinances proper at all, and the objection to the validity of the bonds upon this ground is hereby overruled.
“3. That if library taxes and bonds, and school taxes and bonds heretofore issued (i. e., prior to June 27, 1918), authorized to be issued in lieu of taxation must be included within the city tax limit of two per cent., then a part if not all of above bonds are illegal, because the total of city taxes and bonds authorized to be issued in lieu of taxation, together with the library and school taxes and bonds exceed said tax limit of two per cent.
“At the outset it must be determined whether or not the city of Detroit as a municipal corporation which concededly exercises functions relative to schools and libraries in so performing its duties, is acting as a State agency, or, in other words, under our system, Are the control and management of schools and libraries, or either of them, State functions or municipal functions?
“This question came squarely before the Supreme Court in the case of Attorney General v. Thompson, 168 Mich. 511-527, and the validity of the bond issues in that case was directly involved by the charter limitation on the city’s indebtedness. See opinion, p. 513.
“At page 518, Mr. Justice Steere, who delivered the opinion of the court, among other things, says:
‘The limit of the gross debt of the city of Detroit for strictly municipal purposes was and is fixed by the charter at 2 per cent, of the assessed valuation, and under the Constitution and home rule act it can only be changed by a general revision of the city charter made pursuant to the provisions of the home rule act.
“‘We then come to the question: Must the school and library bonds be included in computing and limiting the gross indebtedness of the city of Detroit as contemplated by its charter?
“ ‘With reference to the library and school bonds, the same laws and rules of construction apply.’
_ “The learned Justice .then reviews the various decisions of the court up to that time, and at page 526 concludes as follows:
“ ‘Guided by the foregoing considerations, we are constrained to hold that the school bonds and library bonds of the city of Detroit were not intended to be, and are not, included in the 2 per cent, limit of indebtedness for municipal purposes specified in the charter.'
“The above opinion was handed do.wn February 16, 1912. Since then the city of Detroit has extended its boundaries under the home rule bill, and in several cases the Supreme Court has held that an amendment under the home rule bill extending the boundaries of a city has no effect upon the boundaries of a school district within such system. MacQueen v. Port Huron City Commission, 194 Mich. 328; Collins v. City of Detroit, 195 Mich. 330; Board of Education of Grand Rapids v. Bacon, 196 Mich. 18.
“In 1915 the legislature passed Act No. 323 (Local Acts 1915), entitled ‘An act to authorize the common council of the city of Detroit to borrow money for the purpose of completing the erection and equipping of the new main library in the city of Detroit.’ Thereafter proceedings were had to issue bohds for the purpose authorized, and the validity of these proposed library bonds was passed upon by the Supreme Court in the case of Common Council of Detroit v. Engel, 202 Mich. p. 544. (Opinion filed July 18, 1918.)
“The Supreme Court held that said Act No. 323, Local Acts 1915, was a valid piece of legislation, and further that th§ authorization of the bonds by the municipal agencies was proper and that the bonds involved were valid.
“Neither in the prevailing opinion nor in the dissenting opinion filed by Mr. Justice Fellows, is any reference made to the case of Attorney General v. Thompson, 168 Mich. 511, nor do we find any decision of the Supreme Court limiting or modifying the doctrine announced therein, and without detailing all the decisions of the Supreme Court relative to the subject-matter, we are constrained to adhere to the doctrine announced in said opinion and decision, and we hereby hold and determine that school and library taxes and bonds should be excluded in determining the 2 per cent, limit of indebtedness for municipal purposes specified in the charter.
“4. That the ‘saving clause’ in the new charter is not sufficient to continue in force proceedings taken before the adoption of the new charter, under which it is contemplated to issue the bonds involved herein.
“We frankly state that it would have been better had the new charter contained this ‘saving clause.’ However, we must consider the entire situation. Preliminary proceedings of various kinds had been taken under the provisions of the old charter, and it was not to be supposed that the new charter necessarily invalidated such action if it conformed substantially to the provisions of the new charter. We think that, taking all the surrounding conditions into consideration with the observation of the Supreme Court in the case of Attorney General v. Marx, 203 Mich. 331, at p. 335, ‘2 Lewis’ Sutherland Statutory Construction (2d Ed.), § 490,’ is applicable:
“ ‘Statutes will be construed in the most beneficial way which their language will permit to prevent absurdity, hardship or injustice; to favor public convenience, and to oppose all prejudice to public interests.’
“Mandamus will.issue in favor of relator against respondent for all the bonds involved herein, excepting $200,000 issue of public building bonds embraced in paragraph ‘E’ of this opinion.”

Referring to the subject of the public sewer bonds, the validity of which was sustained below, we are impressed 'with the following argument of plaintiff’s attorney:

“The circuit judges sustained the validity of these bonds, but, in so doing, placed unnecessary stress, it seemsi to me, on what has been done heretofore, as a matter of practical construction. I have conceded and do concede that ‘in lieu of’ means ‘in place of,’ ‘in room of,’ or ‘instead of.’
“We are not dealing with a case in which there was authority to tax in a sum not to exceed $200,000, and authority to bond for a sum not to exceed $200,000, in lieu of taxation. We have a case in which there was authority to tax in a sum not to exceed $200,000, and authority to bond for ‘such sums of money as shall be deemed necessary and expedient,’ in lieu, of ‘taxing for such sums of money as shall be deemed necessa/ry and expedient.’ In other words, under the ‘old charter’ we could raise by taxation, for the purposes of the public sewer fund, no more in any one year than $200,000, but, for the same purposes in the same year we could bond ‘for such sums of money as shall be deemed necessary and expedient.’ ”

We invite attention to the further discussion of plaintiff’s attorney on this subject, in the brief, which we think justifies the conclusion that there was thus power to tax in a sum not exceeding $200,000, and also power to bond for “such sums of money as shall be deemed necessary and expedient,” provided the gross debt limitation be not exceeded — all a part of the annual appropriation scheme, of the scheme for bonds which a city “is annually authorized to issue.”

It is urged that it was because of this that the “public sewer bonds” were sustained in Detroit Common Council v. Engel, 187 Mich. 88, and Attorney General v. Thompson, 168 Mich. 511.

Upon the subject of the $200,000 public building bonds “to cover the cost of purchasing frontage of 172.17 lineal feet of ground at the harbor line to be used for the extension of public service,” we agree with the views expressed and the conclusion reached by the circuit judges, in holding this attempted issue invalid.

The circuit judges did not discuss the question whether under the “revised charter,” bonds may be issued to meet “capital expenditures,” so-called, as distinguished from ordinary annual expenses of a department for the coming year. We are of opinion that section 5, chapter 7, title 6 (p. 136) of the “new charter” is broad enough to cover this expenditure, and that the question should be answered in the affirmative.

Should the things done by resolution of the common council, looking to the issue and sale of these bonds, have been done by ordinance? We think not. While section 17 of chapter 1 of title 3 of the “revised charter” provides that “all matters of legislation shall be presented, considered and enacted by the council in the form of ordinances,” an examination of the other provisions of the charter shows that the power to make appropriations and issue bonds is conferred by title 6 (p. 108). It is in this title (see chapter 5, | 1, p. 125) that we find this provision:

“The common council may provide for public improvements and for refunding the public debt by borrowing upon the faith and credit of the city and upon the best terms that can be made, such sums of money as shall be deemed necessary and expedient, and issue the bonds of the city therefor, in lieu of raising the same by taxation.”

It is in this title that all provisions of the charter are found concerning “finance and taxation.” Nowhere in it is there a requirement that anything by it authorized is required to be done by ordinance— in fact the contrary appears. In section 6 of chapter 1 of this title (p. 109) is the following:

“Each statement shall show the fund or purpose for which the amounts therein specified are to be raised, which statements, after having been adopted in the form of a resolution or resolutions, by a majority vote of all the members of the council, shall be, respectively, the basis for the levy and collection of taxes, and for the issue of bonds, for the purposes therein named.”

Manifestly, there is no practicable way of working out all the incidents of a city’s scheme of taxation and finances by resort necessarily to ordinances. Such evidently was not the intention of the framers.

Did the “repealing clause” of the “revised charter” operate in abatement of the right to carry out the sale of the bonds, authorized under the “old charter”; or did the “saving clauses” of the “revised charter” preserve the right?

While the repealing clause, standing alone, is quite sweeping, it must be read in connection with the “saving clauses,” and all, taken together, must be interpreted from the standard of the end sought by their enactment.

“In construing statutes of doubtful meaning, courts are authorized to collect the intention of the legislature from the occasion and necessity of the law— from the mischief felt, and the objects and remedy in view — and the intention is to be taken, or presumed, according to what is consonant to reason and good discretion.” Sibley v. Smith, 2 Mich. 487.

For the “saving clauses” see sections 2 and 3, title 10 (p. 152).

It is inconceivable that it was the design of the “revised charter” that these appropriations should abate, and the city be bankrupt on July 1st, and during all of its fiscal year under the new charter. Authority to collect taxes after July 1st abated, if authority to sell bonds after that day abated. They must stand or fall together.

The situation is not controlled by City of Detroit v. Chapin, 108 Mich. 136 (37 L. R. A. 391).

On account of the great length of this opinion we refrain from further discussion of the questions involved. We are content with the conclusions reached by the learned circuit judges, and the judgment below is affirmed.

Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    CHAMBERS v. CHAMBERS.
    1. Trusts — Enforcement—Equity—Jurisdiction.
    A trustee haying accepted the trust is hound to execute it faithfully, and a court of equity has power to enforce its execution in behalf of the cestui que trust.

      2. Same — Fiduciary Relation — Good Faith.
    Where a testator bequeathed in trust to his brother, to be disposed of by him to the two children of another brother, deceased, “all the property, or its equivalent, I received under the last will,” of said deceased brother, leaving the determination of said amount entirely to the judgment and discretion of said trustee, a “determination” by him that said amount was the sum of one dollar, held,, to be in bad faith, where at the time it was made the courts had already determined that it was a substantial sum.
    3. Same — Enforcement—Determination—Equity.
    Where the record shows that the trustee'is deceased and no new determination can be made by him, the duty rests upon the court of equity to dispose of the question.

      Appeal from Mackinac; Shepherd, J.
    Submitted June 6, 1919.
    (Docket No. 71.)
    Decided July 17, 1919.
    Bill by William Chambers and another against Catherine Chambers, surviving executrix of the last will of Patrick Chambers, deceased, and another, for a construction of said will. From a decree for plaintiffs, defendants appeal.
    Affirmed.

      C. S. Reüley, for plaintiffs.

      Prentiss M. Brown (Henry Hoffman, of counsel), for defendants.
   Stone, J.

The bill of complaint herein was filed to obtain a construction of the will of Patrick Chambers, deceased, and prays, among other things, to have set aside the so-called “determination” of Michael Chambers, under said will. The plaintiffs are, respectively, the nephew and niece of said Patrick Chambers, deceased. The defendant Catherine Chambers is the surviving executrix of the last will of said Patrick Chambers, deceased, and defendant John Rhoades is the executor of the estate of Michael Chambers, deceased. Both of the defendants are properly before the court.

John Chambers, Patrick Chambers and Michael Chambers, all now deceased, were brothers, and formerly lived at St. Ignace, where they were partners in business. John Chambers, deceased, was the father of the plaintiffs. He made a will naming his brothers, Patrick and Michael, as his executors — both deceased at the time of the filing of this bill of complaint. John Chambers died December 19, 1891. His will was duly admitted to probate. The accounts of his executors in said estate will be referred to later in the opinion of the circuit judge. Patrick Chambers died December 24, 1916; his estate is in process of being probated. His will was duly admitted to probate. That portion of his will, which bears date February 14, 1908, of which construction is prayed, reads as follows:

“All the property, or its equivalent, I received under the last will of my brother, John Chambers, deceased, I give and bequeath in trust especially, to my brother, Michael Chambers, to be disposed of by him to the two children and heirs of my said brother John, deceased, being William and Vivian Chambers, and at such time or times, or manner as he may deem fit, and my said brother Michael Chambers is to be the sole judge of the amount or quantity of said property I so received from my said brother John’s estate, and from his determination and decision regarding the same there shall be no dispute or appeal; everything to be left to his judgment and decision, and this shall pertain to whatever he may deem necessary to deed as real estate, or give as personal property, or both, to account for my interest that came to me from my said brother John’s estate.”

The will named his brother, Michael Chambers, and his sister, Catherine Chambers, as residuary legatees under said will, to share and share alike as joint tenants, “and as such words imply, to go to them or the survivor absolutely.” The will also appointed said Michael Chambers and Catherine Chambers, or the survivor of them, as the executors or executor of said will.

Michael Chambers died October 16, 1918; and previous to his death he attempted, by a so-called “determination,” to deprive and dispossess plaintiffs of all interest in excess of one dollar, in the estate of Patrick Chambers, deceased. Said “determination” was filed in Patrick Chambers’ estate on November 26, 1918, and after Michael’s death. That “determination” reads as follows:

“Whereas, the will of my late brother, Patrick Chambers, heretofore filed in the Mackinac county probate court, provided that I was to make a determination of what property or its equivalent, if any, he received from the estate of our brother, John Chambers, and turn the same over to the children of John.
“And, whereas, I am informed by counsel that it is necessary that I make a determination of what amount was so received, I do hereby make the following determination :
“The account of John Chambers’ estate was kept by my said brother, Patrick. A statement of account, based on Patrick’s books was signed by him and myself as co-executors of John’s estate and filed in the Mackinac county probate court. This account showed that the estate was indebted to us as co-executors for' overpayments to the widow and children of John in the sum of upwards of five thousand dollars. Credits gained by the estate in the final disposition of the rents then were originally charged, by charging my brother and myself interest on the balance in our hands at five instead of three per cent, and compounding the same annually, and by refusing compensation to us as executors. My determination is that the amount of property or its equivalent received by my brother, Patrick, from the estate of John Chambers, was the sum of one dollar ($1) and that this is the amount that I determine to be turned over to the said children of John Chambers, William Chambers and Vivian Chambers.
“Michael Chambees.”

This “determination” was duly signed and witnessed, and acknowledged on October 14, 1918, as appears by the record. According to the order on the final account in the estate of John Chambers, deceased, as affirmed on appeal from the probate court to the circuit court, the interest of Patrick Chambers therein was one-eighth of the real estate and the sum of $2,-832.04 in personal property. This amount was so adjudged before the filing of said so-called “determination.”

The record discloses that the plaintiffs herein caused their uncles, Michael and Patrick Chambers, to account to them in a somewhat bitter contest waged in the probate court, from which contest in the estate of John Chambers, deceased, Michael appealed to the circuit court. At the time of the attempted “determination” made by Michael Chambers, aforesaid, the circuit court had determined the exact interest Patrick Chambers had in the estate of John Chambers, deceased, and it is the contention of the plaintiffs that the amount or quantity of property to be turned over to the plaintiffs having been determined by the court, Michael Chambers had no authority or power over the same by way of disposition. The effect of the “determination” as made by Michael Chambers, if allowed to stand, will deprive these plaintiffs of the entire legacy (save one dollar) mentioned in, and given them by, the will of Patrick Chambers, deceased; and it is the claim of the plaintiffs that that would amount to a false determination of the value of the legacy, and would be fraudulent, untrue and unjust.

The learned circuit judge who heard this case filed an opinion in which he stated, among other things, the following:

“John Chambers, Patrick Chambers and Michael Chambers, all now deceased, formerly lived at St. Ignace, and were partners in business, known as Chambers Brothers. John Chambers died first, his two brothers, Patrick and Michael, were named as his executors, they continued the partnership, using and commingling the moneys derived from the income from estate of John Chambers in the business, both personal and partnership, made no final accounting in said estate for twenty-three years, and when ordered to make an accounting claimed that the estate was indebted to them in a large amount, to wit, $6,776.26. After a contest in probate court, and in the circuit court to which it was appealed in the year 1917, they were called upon to account to plaintiffs and their mother in cash for the sum of $7,500, which they paid. By reason of their alleged neglect and conduct, they were charged compound interest on the moneys found to be in their hands from time to time, charged large amounts for rents of property they had occupied, and because of maladministration were allowed no compensation. * * *
“The finding of the probate court and the decree entered, state the interest of Patrick Chambers in the estate of John Chambers as follows:
“Real estate: Undivided one-fourth to Patrick and Michael Chambers.
“Personal estate: To Patrick and Michael, one-half of remainder, $5,664.09.
“The interest in the real estate mentioned above is estimated to be of considerable value. * * *
“Whether or not the facts, as above stated, present grounds that would warrant the court in construing Patrick Chambers’ will, or, in other words, whether any construction is required, it appears clear to me that a case is presented which calls for equitable interference, and calls for a remedy, where an adequate remedy may be had only in a court of equity.
“A cestui que trust may invoke the aid of a court of equity to have wrongful acts of the trustee affecting the trust property set aside. 39 Cyc. p. 512.
“When the execution of a power in trust shall be defective in whole or in part, its proper execution may be decreed in equity in favor of the trust. Section 11649, 3 Comp. Laws 1915.
“The statute granting to probate courts jurisdiction over testamentary trusts in certain cases, carefully and fully reserves to courts in chancery the powers previously possessed by them over trustees and trust estates. Section 14094, 3 Comp. Laws 1915.
“It is elementary that a person to whom a power or a trust is confided is bound to execute the same fairly, equitably and in good faith. These requirements are particularly imperative when the trustee is required to decide between conflicting claims or interests of himself and his beneficiary.
“It must be presumed that in making this devise, Patrick did not make use of idle words. When he provided for the payments to the children of his deceased brother of the property that himself had been given by their father, he must have believed it to have been of substantial value, or he would not have mentioned the matter at all. This is gathered also from the provision in regard to the time or times of payment to them provided for in the will.
“If this devise was not a naked trust, it is because the determination of the amount of the bequest and the time of enjoyment by the beneficiaries were left uncertain. Before Michael undertook to exercise a power of determination of the amount or extent of the property devised, that amount had been- determined by a court of competent jurisdiction having before it all the parties interested. It was determined just as certainly and definitely as court could have fixed and determined a line between adjoining parcels of land, and the amount so fixed then became vested in the plaintiffs. For the trustee to deviate from that finding to his own advantage, was a legal fraud upon plaintiffs.
“tie acquiesced in that finding and paid the amount so awarded. In making his own determination, he ought to have followed that finding, and following a well-known maxim of equity, we must consider that he did so.
.“His power of deciding as to the time or times of payment died with him, and the administration of his estate should be conducted by the probate court and the executors of his will on the basis of that finding.
“A decree may be made accordingly with costs to the plaintiffs.”

The decree was entered in accordance with this opinion, and directing that a certified copy thereof be filed in the estate of Patrick Chambers in said probate court, and that distribution be made accordingly. Costs were awarded to the plaintiffs. The defendants have appealed, and it is their contention that the testator’s desire was clearly expressed in Patrick Chambers’ will, and that it is the duty of the court to carry it out. It is further claimed that the opinion of the circuit judge was based upon evidence which was immaterial and should not have been considered at all in the case; that the testator created a power in Michael Chambers, granting him the right to dispose of the property in the manner in which he has disposed of it by the “determination” made; and many authorities are cited and reviewed by counsel in support of their claim, that Michael Chambers was made donee of the power. Such authorities, are not controlling of the meritorious question here.

We are of the opinion that there was material evidence to support the finding of the circuit judge, and that such evidence warranted the conclusion reached by him. While, technically speaking, the bill of com-* plaint was filed to obtain a construction of said will, there are sufficient facts alleged which, together with the prayers for relief, including the general prayer, justified the court in holding the case, and in entering the final decree therein.

It is elementary doctrine that a trustee, having accepted the trust, is bound to execute it faithfully; and a court of equity has power to enforce its execution in behalf of the cestui que trust. 3 Story’s Equity Jurisprudence (14th Ed.), §§ 445, 446; Sands v. Codwise, 4 Johns. (N. Y.) 536.

Where a trustee has accepted the trust, equity, so long as it is possible for it to do so, will not permit the trustee to defeat the trust by his wrongful act, and will afford relief by a faithful execution of the trust for the preservation and enforcement of rights depending upon and derivable from it. The trustee is called upon to exercise a proper and honest judgment considering the nature and object of the trust. The trustee must act for the beneficiaries and not for himself in antagonism of the interests of the beneficiaries. He is prohibited from using the advantage of his position to gain any benefit for himself at the expense of the cestui que trust, and from placing himself in any position where his self-interest will, or'may, conflict with his duties as trustee.

The evidence of the surrounding circumstances existing when Patrick Chambers made his will, all indicate that he knew he had received from the estate of his brother, John Chambers, a substantial amount of property. That amount had been determined by a court of competent jurisdiction before the so-called “determination” of Michael was made. Michael was one of the residuary legatees under Patrick’s will; he knew that every dollar which was taken from the plaintiffs out of said estate would enhance his own legacy, as such residuary legatee.

A fair construction of the bill of complaint and its prayers is, that plaintiffs are here seeking to cancel, or have set aside, the so-called “determination” of Michael Chambers. That instrument, itself, is very significant in its language. Taken as a whole, it shows that he sought to justify his conduct by reason of the courts having already decided that he and his co-executor had not properly administered the estate of John Chambers, and the court had charged them with compound interest and refused them compensation, and he gives this as his reason for his “determination.” Such reason was strong evidence of his bad faith. It' is apparent upon its face that the reasons which he gave did not justify him in making such “determination”; that the said “determination” was not made in good faith — that good faith which he, as trustee, was bound to exercise, but was an arbitrary and unjust attempt to divert and dispose of the interest which plaintiffs were entitled to receive from Patrick’s estate. This conduct of Michael in that regard was such as naturally to shock the conscience of the chancellor, and we are not surprised that the court found that Michael Chambers abused his fiduciary relation to these plaintiffs. The record shows that Michael Chambers is deceased, and no determination can, of course, be made by him now, and that duty rests upon a court of equity to dispose of the question involved.

The decree of the circuit court is affirmed, with costs to the plaintiffs.

Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.


author: Bird, C. J.

text:
    CHALKER v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Carriers — Railroads — Personal Injuries — Snow and Ice— Negligence — Question eor Jury.
    In an action against a railroad company for personal injuries alleged to have been caused by plaintiff’s slipping upon ice and snow on the step of the car and falling to the ground as she was about to alight, the disputed Question of fact as to whether the ice and snow had accumulated during the trip, and since the train left its starting point in the morning, was properly submitted to the jury.
    2. Same — Trial—Instructions.
    Even if the ice and snow had accumulated during the trip, still if it rendered the steps dangerous to pass over, a duty was imposed upon defendant to warn and assist plaintiff in alighting, and where it is admitted by the brakeman' that he did neither, failure of the court to instruct the jury in this respect was reversible error.
    3. Same.
    Uncontradicted evidence that the train did not stop at the station platform, that the distance from the last step to the ground was about 20 inches, that the ground was so slippery that a stool could not be kept in place and so was thrown aside, and that passengers were compelled to step to the slippery ground, rendered it the duty of defendant to warn and assist plaintiff, and where it is conceded that it did not do so, the court helow was in error in neglecting to instruct the jury that if defendant’s failure in these respects contributed to her injuries and increased her damages she would he entitled to recover therefor.

      On duty of carrier of passengers to keep steps of cars free from snow and ice, see note in 15 L. R. A. (N. S.) 523; 35 L. R. A. (N. S.) 592.

      Error to Shiawassee; Collins, J.
    Submitted June 12, 1919.
    (Docket No. 26.)
    Decided July 17, 1919.
    Case by Orpha L. Chalker against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. Pending the trial, plaintiff died, and the case was continued by her administrator. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Albert L. Chandler, for appellant.

      Harrison Geer (W. K. Williams, of counsel), for appellee.
   Bird, C. J.

On the 8th day of February, 1917, Orpha L. Chalker and her husband were passengers on defendant’s morning train from Owosso to Durand. When the train arrived at Durand it stopped about 300 feet east of the station platform and the passengers were advised to alight. Mr. and Mrs. Chalker got up and passed out of the car and onto the platform, Mr. Chalker leading the way. He reached the ground in safety but Mrs. Chalker slipped on the ice and snow deposited on the first step and fell to the ground, striking on her stern and back, seriously injuring her, the distance from the platform to the ground being about five feet. She was assisted to her feet by Mr. Chalker and the brakeman and taken to a nearby hotel where she received medical aid. She brought suit against defendant to recover her damages. The substance of her complaint was that defendant did not furnish her a reasonably safe exit from the car, and did not furnish her a safe place to alight. A trial resulted in a substantial verdict in her behalf. Subsequently a new trial was granted by the trial court and before the case was retried Mrs. Chalker died. At the second trial she was represented by her administrator. The second trial resulted in a verdict for the defendant. Plaintiff has brought the proceedings to this court by writ of error, assigning several errors thereon.

The contention of appellant amounts to this: That Mrs. Chalker was not furnished reasonably safe facilities for leaving the car, nor was she furnished a reasonably safe place to alight. That the steps were coated with ice and snow which made them dangerous to pass over, and that she was neither advised of their dangerous condition nor was she assisted in alighting, and further, that no platform was provided on which to alight and that no box or stool was substituted therefor, as is sometimes the case.

Defendant contends that the cars were free from ice and snow when they left Grand Haven, its western terminus, and that whatever ice and snow were 'on the steps at Durand were due to prevailing weather conditions, and that under the holding in Meyer v. Railroad Co., 180 Mich. 516, it was not bound to remove the snow and ice which collected in such manner until it reached its eastern terminus, which was Detroit.

1. The trial court took defendant’s view and charged the jury in accordance therewith. The proofs bearing upon this question were in conflict, and we think the trial court was right in submitting the question to the jury.

2. The trial court in his instructions took no notice of the other complaints of plaintiff and gave no instructions whatever to the jury concerning them. Conceding that the snow and ice had accumulated since leaving Grand Haven or Grand Rapids, still if the steps were dangerous to pass over on account of the ice and snow, when the train arrived at Durand, it imposed upon the defendant the added duty of warning Mrs. Chalker of the danger, and also the duty of assisting her to alight in safety. The brakeman admitted that he did neither. The defendant’s duty, under such circumstances, is stated in Ruling Case Law:

“The duty of the carrier to provide safe and convenient means of entering and leaving its vehicle includes the exercise of due care in the construction and keeping in at least a reasonably safe condition of the steps of cars and other appliances for enabling passengers to board and alight from its cars. * * * So also it may be the carrier’s duty under certain circumstances to provide a stool or box for the use of a passenger entering or leaving its car, as, for instance, where the steps of such cars are inconveniently high; or where the car has been stopped at a point where there is no platform. * * *
“While there are cases that seem to hold as a matter of law that no duty rests upon carriers of passengers by rail to assist persons entering or getting off their cars, the .usual rule is that though it is generally not the duty of a carrier’s employees to assist passengers to board or alight from its vehicle, such duty may and frequently does arise, the obligation of a carrier in this respect depending largely upon the nature of his vehicle, the facility with which access may be had without assistance, and similar circumstances, and that the question is one for the determination of the jury upon a consideration of all the circumstances in the particular case. It would clearly appear to be the duty of a railroad company stopping its train at a place at which passengers cannot easily board or leave the train, to assist them to do so. While the duty to furnish a safe platform, and a step or stool whenever the same is necessary to make it safe, does not necessarily include the duty to assist alighting passengers, it has been held to be the duty of a railroad company which furnishes a box for passengers to alight upon at a point where there is no platform, at least to render such assistance to passengers as to make the box as safe as a platform would have been.” 4 R. C. L. p. 1233, and cases cited.

See, also, Cartwright v. Railway Co., 52 Mich. 606.

The plaintiff was entitled to a charge covering this phase of her case.

It was shown, without contradiction, that the train did not stop at the station platform, that the distance from the last step to the ground was about 20 inches, that the ground was so slippery that a stool could not be kept in place so it was thrown aside by the brakeman and the passengers were compelled to step to the slippery ground. These conditions also made it the duty of the defendant to warn and assist plaintiff. It was said in Cartwright v. Railway Co., supra:

“If a car in which there were passengers was not standing where it would be safe for them to alight without assistance, it was the duty of the company to provide assistance or give warning, or to move the car to a more suitable place.”

Plaintiff was entitled to have the jury instructed that if defendant’s failure in these respects contributed to her injuries and increased her damages, she would be entitled to recover therefor.

For the errors pointed out the judgment will be reversed and a new trial granted. The plaintiff will recover her costs in this court.

Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Moore, J.

text:
    PEOPLE v. DETROIT UNITED RAILWAY.
    1. Street Railways — Definition—Private Right of Way.
    A railway company operating its line on a private right of way cannot be said to be a street railway company in the ordinary meaning of that term.
    2. Same — Municipal Corporations — Reasonable Regulation — Police Power.
    Municipal regulations of the use of streets by a street railway are an exercise of the police powers of the city, and will be upheld if reasonable.
    3. Same — Ordinances.
    An ordinance of the city of Detroit requiring “all cars carrying passengers operated upon any line of street railroad” in said city to “come to a full stop immediately before crossing any street or avenue in said city whenever signaled to stop by any person desiring to take passage thereon or to alight therefrom,” held, not unreasonable.
    Certiorari to recorder’s court of Detroit; Jeffries, J.
    Submitted June 10, 1919.
    (Docket No. 102.)
    Decided July 17, 1919.
    The Detroit United Railway was convicted of violating an ordinance of the city of Detroit, and sentenced to pay a fine of $50.
    Affirmed.

      Bernard F. Weadock, for appellant.

      Clarence E. Wilcox, Corporation Counsel, and Thomas P. Penniman and Paul T. Dwyer, Assistants Corporation Counsel, for the people.
   Moore, J.

This is certiorari to review the finding of defendant guilty of violating a city ordinance. We quote sufficiently from the opinion of the trial judge to indicate the questions involved as follows:

“This is a complaint against the Detroit United Railway charging a violation of a city ordinance on the 11th day of September, 1917, in that it did not stop its cars at the crossing or intersection of Woodward avenue and Chamberlain avenue in the city of Detroit when hailed and signaled so to stop by certain persons, who desired to become passengers thereon, one such person being T. Frank Hooley, the complainant in this case.
“The city ordinance of the city of Detroit, chapter 245, section 19-a, page 600 of the Compiled Ordinances of the city of Detroit of 1912, provides as follows:
“ ‘Sec. 19-a. All cars carrying passengers operated upon any line of street railroad in the city of Detroit shall come to a full stop immediately before crossing any street or avenue in said city whenever signaled to stop by any person desiring to take passage thereon or to alight therefrom; and all cars operated on any such line or lines shall be brought to a full stop before crossing any street or avenue at which any two lines of street railway intersect.’
“The court finds the facts in this case to be,
“First, that the Detroit United Railway, the defendant' herein, owns and operates a street railway line running over the streets and avenues within the limits of the city of Detroit, and especially upon Woodward avenue and across and by Chamberlain avenue where it intersects Woodward avenue as described in this complaint. That for some time the intersection of Woodward avenue and Chamberlain avenue, as above described, and where complainant stopped and hailed said car has been a regular stop marked by the company with a sign indicating that it was a proper place for its cars to stop, to take on and let off passengers.
“Second, that the complainant on the day mentioned in the complaint was at the said intersection of Woodward and Chamberlain avenues as above described, and hailed or signaled for the stopping of car number -, operated by the said railway company, and that the said car refused to stop upon the signal and hailing of the said complainant.
“Third, that Chamberlain avenue intersecting Woodward avenue, the point mentioned in said complaint, is in the city of Detroit, and within the provisions of the said ordinance.
“Fourth, that this part of the city has greatly developed in the past few years, and within it are hundreds of families requiring the service of the said street railway company, and that the local service rendered by the said company is inadequate; that while there is local service on said line on Woodward avenue at the intersection of Chamberlain avenue, this is very frequently changed to limited service where the cars run by, and refuse to stop for passengers at said point, at such times rendering local service wholly inadequate. That people are required to walk from twelve to fifteen hundred feet across some three or four other street crossings intersecting Woodward avenue to get cars marked ‘limited’ run by said company on said streets; and in a modem city in keeping with the desire and necessity for rapid transit, such distances to walk to take a car are an unreasonable burden upon the public.
“Fifth, that Hooley is a resident of Royal Oak, and that when attempting to take the car mentioned in said complaint, he was about to go to his residence in Royal Oak, beyond the city limits, and that Chamberlain avenue intersecting Woodward avenue, as described in the complaint was a proper place under the ordinance of the city of Detroit to wait and board said cars, either local or limited for transportation, either in or outside of the city of Detroit.
“There is no evidence in this case to indicate that the section of the said ordinance providing for the stopping of cars in and upon the streets of the city of Detroit is unreasonable. In fact, the ordinance has stood for many years, and this is the first time it has ever been questioned by the defendant which has been operating cars in the city of Detroit for a great number of years. There is nothing in the original grant to the Detroit United Railway over the property described in the complaint before becoming part of the city of Detroit, to indicate any limitation upon the powers of the city of Detroit, to regulate its traffic within the city limits, as here sought by said ordinance.
“It was indicated in the argument of counsel that the stopping of limited cars at street crossings in the city of Detroit as designated by the city ordinance, is a burden upon express or rapid transportation, and that people outside of the city of Detroit are entitled to the use of rapid transit as well as those who live within the city limits. If this contention is right, then the Detroit United Railway may mark all of its cars or any number of its cars “express” and may run them from one central part of the city of Detroit through the entire city, across any number of streets, without stopping to take on or let off passengers. It is just as much a convenience for a passenger to be able to take a limited car at convenient places upon the streets of the city of Detroit, as it is that they should have rapid transit from a certain point of the city to the city limits. * * *
“Therefore this court finds that it is such a convenience to the public of the city of Detroit, for passengers coming in and going out of this city to other parts of the State to have the convenience of boarding these cars, either local or limited, at such street or avenue as they may be conveniently at.
“Therefore I find this defendant guilty and the sentence of the court is that it be fined the sum of fifty dollars.”
Testimony on the part of the defendant indicates as follows:
“Summary of cars operated on respective dates.
July 31st.
North bound. .86 Locals 9 Limiteds 30 Expresses
South bound. .86 Locals 9 Limiteds 27 Expresses
August 13th.
North bound. .82 Locals 9 Limiteds 34 Expresses
South bound. .88 Locals 9 Limiteds 26 Expresses
August 17 th.
North bound. .82 Locals 9 Limiteds 30 Expresses
South bound. .84 Locals 9 Limiteds 28 Expresses
August 22d.
North bound. .81 Locals 9 Limiteds 26 Expresses
South bound. .89 Locals 9 Limiteds 27 Expresses
August 28th:
North bound. . 54 Locals 9 Limiteds 29 Expresses
South bound. .69 Locals 9 Limiteds 30 Expresses
September 17th.
North bound.. .88 Locals 9 Limiteds 40 Expresses
South bound.. .92 Locals 9 Limiteds 36 Expresses”

Only local cars were stopped at Chamberlain street intersection.

The counsel for defendant presents many contentions. Those requiring consideration here are stated in the brief of counsel as follows:

“This respondent maintains that such ordinance is unreasonable, invalid and inoperative in the present instance as a matter of law. Because
(a) The ordinance is not a proper exercise of the police power.
“(6) The city is without express or implied authority for its enactment.
“(c) The ordinance is not of such a character as to be embraced within the police power of the city.
“(d) The ordinance is contrary to the public policy of the State.
“(e) The enforcement ordinance deprives the respondent of its property without due process of law and is violative of the Constitutions of the United States and State of Michigan.
“(f) The ordinance is an interference with interstate commerce. * * *
“Being a common carrier with the duties to perform as stated above it is empowered by common law to make and enforce all reasonable rules and regulations that may be necessary to best serve the public, meaning by public, the whole public, not a part or parcel but the public in its entirety.
“The operation of the cars in question is an exercise of an obligation which cannot be either put aside by the company nor destroyed by a part of the public. (Citing authorities.) * * *
“It is the contention of this respondent that the establishment of the express and limited service by rule and regulation is a subject within its province as a carrier and is presumed to be reasonable until conclusively proven otherwise. In the instant case it is shown that this locality has more express stops than any other along the line. The testimony shows that there is an express stop approximately 1,300 feet to the north and also approximately 1,200 feet to .the south. These distances do not exceed two city blocks. The express cars operate on a thirty-minute headway, and the local cars on a thirty-minute headway, except during certain hours of the day when the service is more frequent so that at the mile roads the combined service is fifteen minutes and better.”

Counsel insist that Township of Ross v. Railways Co., 165 Mich. 28, is controlling. A reference to that case will show it was a mandamus proceeding where the field of operations was a sparsely settled village and not a great city.

An examination of the authorities cited by counsel for appellant show that nearly all of them relate to the operation of steam railroads and are not applicable here. The case cited by defendant of Village of Excelsior v. Railway Co., 108 Minn. 407 (122 N. W. 486), is more in point. The railway company, however, was operating its line on a private right of way and cannot be said to be a street railway company in the ordinary meaning of that term. Counsel also cite Residents of Albany v. Schenectady R. Co., P. U. R. 1916C, 62. That case did not involve the violation of an ordinance.

The following appears in 28 Cyc. p. 727:

“Municipal regulations of the use of streets by a street railroad are an exercise of the police powers of the city and will be upheld if reasonable. The power of municipalities to regulate the running of cars or railways, standard, street, or interurban, within the corporate limits has been sustained by numerous decisions.”

The ordinance in the instant case appears in that part of the opinion of the trial judge which we have quoted. Section 28 of article 8 of the State Constitution reads:

“No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the consent of the duly constituted authority of such city, village or township ; nor to transact a local business therein without first obtaining a franchise therefor, from such city, village or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.”

There is nothing in the record to indicate that the common council for the city of Detroit has been asked to except from the provisions of the statute interurban cars.

In 36 Cyc. p. 1458 appears the following:

“As to movement and speed of cars. It is also within the power of the legislature or municipal government to make reasonable regulations relative to the movements of street cars, as by requiring cars to stop at specified places, such as before crossing intersecting streets; or before reaching a railroad crossing, and not to proceed until it has been ascertained that the way is clear.”

In Bly v. Railway, 67 N. H. 474 (32 Atl. 764, 30 L. R. A. 303), the court used the following language:

“The charter does not give the defendants the exclusive use of the portions of streets occupied by their tracks. If it did, there would be ground for inferring that the legislature intended to exempt them from the limitation, for in such case no one could lawfully occupy a position in which he would be exposed to the danger of collision with their cars. The public generally have a right to use those portions of the streets, but in a manner and to an extent modified by the use which the defendants make of them. People may pass across or along the tracks when cars are not passing. The rights of the public and of the defendants are in a great measure common. Middlesex Railroad Co. v. Wakefield, 103 Mass. 261, 263; Concord v. Railroad, 65 N. H. 30, 36 (18 Atl. 87). By the charter, the legislature authorized a new use of streets, which is a source of a new and great danger to other travelers. The driving of cars over steel or iron rails is attended with greater danger to others using the streets than the driving of ordinary vehicles over their uneven surfaces. As cars are heavier than ordinary vehicles, and as there is less resistance to their motion, their momentum is not so easily controlled, and causes more serious consequences when they come in collision with objects. Being confined to a fixed track, they cannot be turned aside to avoid collision. They have a tendency to frighten horses, especially when propelled by steam or electricity. The legislature were aware of these facts, and they are competent evidence upon the question of the legislative intent expressed by the charter. They show that there is greater necessity for limiting the speed of cars than for limiting that of ordinary vehicles. In view of this necessity it is highly improbable that the legislature intended to release the defendants from all restraint as to speed, even temporarily. If the general law does not apply to the defendants, they may drive their cars at any rate of speed, however great, until the mayor and aldermen establish regulations for their government, while a person riding upon horseback or in a carriage cannot drive across, along, or in the vicinity of their tracks at a swifter pace than five miles an hour without subjecting himself to liability to be fined or imprisoned. Such inequality would be arbitrary and unreasonable.

“The speed at which the defendants may drive cars without endangering the. safety of other travelers depends somewhat upon the width and character of the streets and the extent and nature of travel over them. Recognizing this fact, and the further fact that the mayor and aldermen, from their knowledge of the streets and travel, are well qualified to judge of the speed allowable within the limits of safety, the legislature delegated to them authority ‘to make all such regulations as to rate of speed and the mode of use of the' railway as the public safety and convenience may require.’ Commonwealth v. Temple, 14 Gray (Mass.), 69, 74. This is in accordance with a policy adopted in this State when the first street railway charter was granted, and which has been generally adhered to in the enactment of later charters. Laws 1864, chap. 3080, § 5; 1878, chap. 118, § 4; 1881, chap. 251, § 4; 1889, chap. 178, § 3, chap. 218, § 4, chap. 241, § 3; 1891, chap. 258, § 5, chap. 293, § 5; 1893, chap. 250, § 4. ‘This control is given to these municipal officers, not as representing a conflicting interest, but as independent bodies charged with the duty of protecting the rights and promoting the convenience of the whole public. Union Railway Co. v. Cambridge, 11 Allen (Mass.), 287, 292; Cambridge v. Railroad Co., 10 Allen (Mass.), 50, 57. The legislature intended that the mayor and aldermen should take the subject up where they left it, that is, with the general law in force and applicable to the defendants. If the mayor and aldermen find that no additional or different regulations are required, they need not act; but if they find that the public safety and convenience require that the defendants shall run their cars at a less rate of speed than five miles an hour, or that they shall take precautions of any kind to avoid injury to travelers, they are authorized to make regulations accordingly. After the adoption of regulations, the defendants would be governed by the statute as modified by the regulations. Cooley Const. Lim. p. 198; 1 Dillon, Mun. Corp. § 368; Rogers v. Jones, 1 Wend. (N. Y.) 237; State v. Welch, 36 Conn. 215; State v. Clarke, 54 Mo. 17; State v. Hayes, 61 N. H. 264; School District v. Prentiss, 66 N. H. 145, 146 (19 Atl. 1090).”

The case of Cape May, etc., R. Co. v. City of Cape May, 59 N. J. Law, 404 (36 Atl. 678, 36 L. R. A. 657), involved the violation of an ordinance similar to the one before us. In disposing of the case the court used the following language:

“The power therefore is undoubted to make reasonable regulations to reasonably control the operation of electric street railway cars, within the city, in -many respects. Trenton Horse R. Co. v. Trenton. 53 N. J. Law, 132 (20 Atl. 1076, 11 L. R. A. 410). The power to reasonably regulate the operation of these street railways is implied from the authority conferred upon the city council by the city charter.
“The franchise or privilege is granted by the municipality, and a reasonable regulation of the enjoyment of the franchise is not a denial of the right; for corporations which are to be regarded as inhabitants of a city are subject to its ordinances to the same extent as natural persons. The power is a police power, and one which is constantly exercised in prescribing regulations for the good of the community, and such regulations can be enacted by the legislative body of the municipality without notice to the parties who may claim to be interested, provided the regulations are made according to and in the manner prescribed by, the charter of such municipality. The exercise of this power is legislative in its character. Trenton Horse R. Co. v. Trenton, supra; Consolidated Traction Co. v. City of Elizabeth, 58 N. J. Law, 619 (34 Atl. 146, 32 L. R. A. 170); Frankford, etc., R. Co. v. City of Philadelphia, 58 Pa. St. 119; North Hudson County R. Co. v. Mayor, etc., of City of Hoboken, 41 N. J. Law, 71; Booth, St. Ry. Law, § 222.
“Ordinances passed by virtue of an implied power conferred upon municipal corporations must be reasonably consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the State. 1 Dillon, Mun. Corp. (4th Ed.) § 319. There is much discretion left to the municipal corporation in the exercise of their general and implied powers, and the exercise of this authority will not be judicially interfered with unless its exercise has been manifestly unreasonable and oppressive, and is an invasion of private rights. No private right is invaded by the ordinance in question, and the presumption is in favor of its validity. The unreasonableness of the ordinance is not apparent on its face, and the burden of proof is on the prosecutor to show wherein it is arbitrary, unjust or oppressive. Booth, St. Ry. Law, § 224, and cases cited in notes.
“Regulations may be made requiring street railway cars to stop at designated places, in order to accommodate passengers and prevent unnecessary obstructions to public travel, as well as to avoid danger of accidents to others in the ordinary use of the streets and other public places. North Birmingham St. R. Co. v. Calderwood, 89 Ala. 247 (7 South. 360). Street railways are a great public convenience, and they are to be properly protected in the exercise of their franchise; but they are not entitled to a monopoly of the street, nor even to the exclusive use of that part covered by their tracks. They must exercise their rights in harmony with the rights of the traveling public.
“The ordinance in question is presumed to be a valid ordinance. It does not appear on its face to be unreasonable or oppressive under the circumstances of the case. Neither does it otherwise appear in purpose or effect to be unreasonable. Electric street railway cars can be propelled at a very rapid rate of speed along the streets and over the crossings and intersections thereof, and other public places, with great danger to those using such crossings. In view of these dangers, incident to the operation of this class of street railways, it is incumbent upon the companies owning and operating them to exercise a degree of care and caution to avoid accidents commensurate with the risks involved. This degree of care is a reasonable one in view of the probabilities of danger, and the exercise of this care for the protection of the general traveling public can be enforced by ordinance. A regulation that the cars shall stop at every street before crossing is a reasonable one, which does not interfere with the franchise of the prosecutor, and would appear to be necessary to protect the public from the dangers incident to the crossing.
“The proceedings of the city council and the ordinance must be affirmed with costs.”

In the case before us the defendant is found guilty of violating an ordinance of a great city having from three-quarters of a million to a million of people. The trial judge found as-a fact that the service at the point indicated was inadequate to properly serve the public. Woodward avenue is one of the great arteries, of this large and growing city. The summary of the frequency of the running of the street cars which we have before stated gives some idea of its congested condition. We may well take notice that even more passengers are conveyed up and down and across Woodward avenue in automobiles than find transit in the street cars.

Counsel for defendant insist these large interurban cars should be allowed to make runs of a half mile or more without stopping and to cover more mileage in a given time than the ordinary street car. The common council might well regard the doing of this as a menace to the rights of others who have equal rights upon the street with the defendant.

The municipal authorities are in a situation to know local conditions much better than are the courts, and while we should not hesitate to declare an ordinance unreasonable if it was shown that it was clearly so, we think upon this record we should decline to so hold.

The judgment is affirmed, with costs.

Bird, C. J., and Ostrander, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.