City of Kalamazoo v. Michigan Traction Co.

85 N.W. 1067, 126 Mich. 525, 1901 Mich. LEXIS 768

• Court: Michigan Supreme Court
• Decided: May 7, 1901
• Status: Published

Opinion

Grant, J.

The sole question arises over the requirement to substitute a grooved rail for a T rail. It is contended on behalf of the relator that the grooved rail is essential to the maintenance of a substantial pavement; that the requirement is therefore reasonable, is within the reservation of the ordinance itself, and incident to the powers and duties of the municipality pertaining to its streets. It is contended on behalf of respondent that the substitution of the grooved rail is inconsistent with the original ordinance, and in violation of its contract with the city. It admits the duty to repave whenever the city does, but maintains the right to use its own option, during the life of its franchise, as to the bind of rails to be used.

The question is an important one. The stipulated facts are that the old T rail is unsuitable in streets paved with brick. It renders the surface of the street rough and uneven; requires more frequent repair; causes more espense ; is unsightly, inconvenient, and dangerous for the passage of ve'hicles. Under respondent’s contention, it could practically prevent any improvement in paving, or the adoption of new and better material, unless it could be used in connection with the T rail, which the respondent had the right to lay when the road was constructed, and which it now claims the right to relay and maintain. It could not be compelled to substitute the grooved rail for the T rail even if the city should offer to pay the expense; for it claims that the right to lay the T rail was a part of the contract, which cannot be taken away. The amended ordinance does not impair the franchise conferred upon the respondent. The city recognizes respondent’s right to the use of the street, to run its cars, and to charge the fares fixed by the ordinance. It only claims that conditions have changed, requiring essential changes in the character and manner of paving, and that the respondent must so construct and equip its road as to meet these changed conditions. In other words, the relator only claims that the respondent must lay new and different rails, at greater cost than that of the old ones. The respondent is deprived of none of its property, unless the increase in cost in consequence of the improvement amounts to such deprivation. It is essential that municipalities retain that control over the public streets and highways which is necessary for the protection and proper use of the public. Courts will jealously guard the right of such control. It must be a very plain provision, indeed, in a contract, which will justify the courts in holding that this power has been conveyed away. Where doubt exists, such contracts will be construed against the surrender of such power.

Counsel for respondent cites the following authorities: People v. Railway Co., 118 Ill. 113 (7 N. E. 116); State v. Railway Co., 85 Mo. 263 (55 Am. Rep. 361); City of Binghamton v. Railway Co., 16 N. Y. Supp. 225; Brooklyn Heights R. Co. v. City of Brooklyn, 18 N. Y. Supp. 876; City of Burlington v. Railway Co., 49 Iowa, 144 (31 Am. Rep. 145); Hudson Tel. Co. v. Jersey City, 49 N. J. Law, 303 (8 Atl. 123, 60 Am. Rep. 619); Northwestern Tel. Exch. Co. v. City of Minneapolis, 81 Minn. 140 (83 N. W. 527, 4 Mun. Corp. Cas. 360); Williams v. Railway Co., 130 Ind. 71 (29 N. E. 408, 30 Am. St. Rep. 201); Mayor, etc., of Houston v. Railway Co., 83 Tex. 548 (19 S. W. 127, 29 Am. St. Rep. 679); Easton, etc., R. Co. v. City of Easton, 133 Pa. St. 505 (19 Atl. 486, 19 Am. St. Rep. 658); City of Waterloo v. Railway Co., 71 Iowa, 193 (32 N. W. 329); City of Detroit v. Plank-Road Co., 43 Mich. 140 (5 N. W. 275).

In People v. Railway Co. the question was: Can the municipality, under an authority permitting the construction of a street railway, compel the company to extend its tracks into streets where the road must be run at a loss ? It was held that no such power was reserved. It is there said:

“Doubtless the common council, notwithstanding the grant to the railway company of the right to use the streets, retained full power and authority over the streets to improve them, and use them for all purposes for which they were dedicated to public use. But that reserved power conferred no right on the common council to compel, by ordinance, the construction and operation of a street railway.”

In State v. Railway Co. the charter required the company to keep and maintain the space between its rails n good repair. The council sought to compel the company to put in a new pavement of stone. It was held that the original ordinance gave no such power; that the new ordinance was in violation of the contract; and that, under the pretense of exercising the police power, the duty of paving could not be shifted upon the defendant.

In Brooklyn Heights R. Co. v. City of Brooklyn the company, by its original charter, was granted authority to locate its car house and turnouts at such points as should he approved by the commissioner. Held, that such assent could not be withdrawn after its acceptance •and the construction of the road and buildings.

In City of Burlington v. Railway Co. it was held that, where the charter gave the right to maintain a ■double track, it could not afterwards limit the company to a single track. Such an ordinance was held a violation of the original contract. It was also there attempted to' sustain the ordinance as an exercise of the police power. The court declined to pass upon that question, upon the-ground that the double tracks were not shown to constitute a nuisance.

In Hudson Tel. Co. v. Jersey City it was held that the common council could not revoke the designation of streets for the erection of poles and the stretching of wires, after the ordinance had been accepted and the poles erected.

In Northwestern Tel. Exch. Co. v. City of Minneapolis it was held that the municipality could not arbitrarily order the poles and wires removed, and the wire» placed underground. The case is a well-considered one, and recognizes the reservation of the authority in the common council to require the removal of the poles, if necessary for the protection of the inhabitants and the proper use of the streets. The opinion states:

“ To prevent any misunderstanding, we add that the complaint tenders the issue that the city council arbitrarily,, and without any reasonable necessity, enacted the ordinances complained of. The demurrer admits the allegations of the complaint in this respect, and our conclusion is based upon this admission. If, however, the plaintiff on the trial fails to establish such allegation by competent evidence, it must comply with the ordinance, for it is not to be doubted that the city council has the plenary power to extend the subsurface district wherever, in the exercise' of a fair discretion, it decides that public interests require it to be done; but it cannot do so arbitrarily in the premises, as alleged in the complaint.”

In Williams v. Railway Co. Mr. Williams was restrained by the court from moving a house along a public street, where'it would obstruct the business of the company, and necessitate the cutting of its wires. The moving of a house is not an ordinary use of the street.. In discussing the rights of the railway company the court said:

“■It is undoubtedly true that all such rights are subordinate to the paramount power usually, denominated the ‘police power,’for that power cannot be annihilated by contract.”

See, also, Booth, St. Ry. Law, §§ 39, 40.

In Easton, etc., R. Co. v. City of Easton the ordinance was silent as to the style of rail to be used by the company. It originally adopted a flat rail, but concluded afterwards to substitute a T rail, which created no greater obstruction, and did not increase the cost to the city. Held, that the use of such rail would not be restrained by the courts.

A like state of affairs existed in City of Waterloo v. Railway Co. The court denied the city an injunction, and said:

“The city may require defendant to so exercise the privileges conferred upon it by the grant as that the use of the street for ordinary purposes will not be unreasonably interfered with. It has the power to make all necessary and reasonable regulations as to the manner in which the track shall be constructed, and the condition in which it shall be maintained.”

In City of Detroit v. Plank-Road Co. the sole question was whether a plank-road company could be deprived of its property and its right to take toll by including one of its toll houses and some of its road within the limits of the municipality.

Counsel cites other authorities, but they are all of the same import. The cases cited may.be thus classified: (1) Those which absolutely take away some right expressly conferred, and which does not conflict with the rights of the public; (3) those which impose new burdens not contemplated by the ordinances; (3) those which arbitrarily impose conditions without any showing that they are necessary for the protection and safety of the public. They do not,- in our judgment, control the present case.

It is too late now to question the rule that these corporations may obtain contractual rights in streets and public highways, which the municipality cannot repudiate or annul, when such rights are not inconsistent with the ordinary uses of streets and highways. That rule is settled. The authorities do not, however, go so far as to hold that the grant of a right to use a certain rkind of rail is irrevocable. On the contrary, the conclusion seems to be that, when the use of another kind of rail becomes necessary for the protection and safety of the public, the right to use the specified article must give way to the necessities and requirements'of the public. Such contracts must be liberally construed in favor of the municipalities. Where the ordinance required that a street-railroad company should keep the parts of the streets used by it “in as good repair and condition as the city keeps the balance of its streets, and of even grade with the streets, so that carriages and other vehicles can cross with ordinary ease,’’ it was held that, when the city repaved its streets, it was the duty also of the railroad company to repave. State v. Railroad Co., 29 Fla. 590, 611 (10 South. 590, 595).

The power reserved by section 23 of the ordinance (see paragraph 5 of stipulated facts) was the power “to make such further rules,” etc., “as may from time to time be deemed necessary to protect the interests, safety, welfare, and accommodation of the public;” but it expressly prohibited the reduction of the rate of fare, or the alteration or repeal of section 1. Section 9 also provides:

‘£ The city council may from time to time require the said grantee, its successors and assigns, to use such fixtures and appliances upon its said road, plant, and cars as may be deemed necessary to the public safety in the operation of said road.”

The learned counsel for respondent concedes that, under this reservation and the police power, the city might require respondent to use a heavier rail than a 40-pound T rail, or, at respondent’s option, a girder rail, if necessary to preserve the pavement, and render it reasonably safe for travel. But the stipulated facts show that a brick pavement and the T rail cannot be used together without leaving the surface of the street not only rough, uneven, and inconvenient, but dangerous. If respondent’s contention be the law, the singular result would follow that respondent could not, with safety to the public, pave between the tracks with brick, as by the ordinance it is required to do, and that the city could adopt only such pavement as could be used with safety in connection with the T rail.

We must give the words “fixtures and appliances,” as used in section 9, some force. The right to compel their use is clearly reserved. The term “fixtures” does not refer to movable things; it refers to things that are fixed. Trolley poles, overhead wires, rails, and ties are fixtures. This ordinance, fairly construed, cannot be held to mean that the respondent, in the construction of its roadbed in accordance with the provisions of the ordinance, obtained the right, during the existence of its franchise, to maintain its roadbed and rails in the same condition as when laid. The ordinance contemplated improvements which experience might show to be essential, in the growth of the city, for the convenience, welfare, and safety of travelers upon its streets, and the right to compel such improvements was reserved.

This court held, in an able opinion by Justice McG-rath, that the city of Detroit could compel a street railway to remove all that portion of its railway ties outside of the stringers on which the rails were placed, so that the street might be paved with a concrete foundation. The change involved great expense. The railroad bed had been constructed in accordance with the requirements of the ordinance less than two years before the change was ordered. The reservation in that case was the same as in this. The •only essential difference between the two ordinances is that the one in that case did not expressly provide for laying the ties beyond the girders, while the one in this ■case expressly provides for the kind of rail. But the one in that case did provide that “the rails of said street railway shall be laid on a foundation equal to that of Woodward avenue, or any other first-class railroad.” It complied with the ordinance, and laid the track in the manner authorized by the city. The right to extend its ties-beyond the girders was implied. It had been the ordinary way of constructing street railways. The foundation was equal to that of any other first-class railroad. City of Detroit v. Railway Co., 90 Mich. 646 (51 N. W. 688).. Would the rule have been different if the ordinance had expressly provided that the ties might extend beyond the girders, — then the customary method of constructing-roads? Would the court have said that the pavement could not be laid unless the railway company would consent to make the change necessary for the pavement?' We think not. We think this case is within the principle there established. The common council did not act arbitrarily, but reasonably.

Judgment affirmed.

Montgomery, C. J., Hooker and Moore, JJ., concurred. Long, J., did not sit.