People ex rel. Maybury v. Mutual Gas-Light Co.

38 Mich. 154, 1878 Mich. LEXIS 24

• Court: Michigan Supreme Court
• Decided: January 15, 1878
• Status: Published

Opinion

Campbell, C. J.

Leave is asked to file an information in the nature of a quo warranto to deprive the respondent of the franchise, as it is claimed to be, of laying its gas pipes and distributing gas through the streets of Detroit. The ground of the application is that the company violated some of the terms of an agreement imposing conditions against making combinations with other companies and doing certain other acts, regarded by the city of Detroit as important conditions of its assent to allowing the respondent to use its privileges within the city.

The statute providing for the incorporation of gas companies allows them to lay pipes through the streets, lanes and squares of any city, town or village where they are located “with the consent of the municipal authorities of said city, town, or village, under such reasonable regulations as they may prescribe.” The statutes do not allow an information in such cases as this is claimed to be, to be filed without leave, and they contemplate that leave shall only be granted for a plain violation of the laws regulating the corporation, or wrongs amounting to a surrender of its franchises, or “whenever it shall exercise any franchise or privilege not conferred upon it by law.” Comp. L., § 7085.

The statute contemplates the punishment of corporations for nothing but violations of the laws and policy of the State. In the present instance the State has shown by the incorporating act that public policy is not opposed to and is in favor of allowing gas companies to exist, as they only can exist by having power to lay their pipes. The consent of the municipal corporation is required because the terms on which streets may be safely allowed to be occupied for the purposes of laying gas pipes can be best determined by leaving the regulation to be harmonized with all other exigencies by the authorities controlling their use. The law contemplates that permission will not be' unreasonably refused or unreasonably burdened, but regards the municipality as competent to determine the proper conditions for itself.

The exercise of the power of using streets for laying gas pipes is rather an easement than a franchise, and a similar power is used as often for private drainage and other purposes as for more general purposes. It is a matter peculiarly local in its character, and which should always be to a reasonable extent under municipal supervision to prevent clashing among the many convenient uses to which ways must necessarily be subjected, for water, drainage and other urban needs. But the permission to lay these pipes does not differ in any respect from that required for laying railways over land, or ditches through it. It is not a State franchise, but a mere grant of authority, which, whether coming from private owners, or public agents, rests in contract or license, and in nothing else. A violation of the contract, or an unauthorized intrusion, must be redressed as all ordinary wrongs are redressed, by the usual legal remedies. It in no way concerns the State whether the power is granted or withheld, nor whether the corporation has or has not fulfilled its agreements. The injured party has a remedy for any grievance, but the State is no more interested than it would be in the question whether or not a railroad company has lawfully acquired its right of way. This court has heretofore refused to recognize the encroachment of a corporation on a highway as subject to be reached by quo warranto, and we discover no better reason for interfering in the present case.

The application must be denied.

The other Justices concurred.