Red Star Motor Drivers' Ass'n v. City of Detroit

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 482 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 483 I agree with Mr. Justice WIEST that res adjudicata may not be urged on a motion to dismiss. I agree with him in the main in his discussion of the doctrine of stare decisis. I do not agree with him when he follows the conclusion of the learned trial judge that, due to the importance of the questions raised by plaintiff, there should be a further delay to permit the taking of testimony in order to determine whether an ordinance held valid *Page 491 by a majority of this court over two years ago should be enforced. In Red Star Motor Drivers' Ass'n v. City of Detroit,234 Mich. 398, months were consumed in the taking of testimony, and while some of it was considered on minor questions and it was discussed at some length in the minority opinion, the majority opinion upon the controlling question in the case entirely disregarded the testimony and disposed of the case on questions of law pure and simple, and held as matter of law: (1) That under the Constitution the city of Detroit had reasonable control over its streets, and (2) that it was not an unreasonable regulation for the city to say what streets could be and what streets could not be used by jitneys for commercial purposes. The ordinance in question was signed by the mayor May 29, 1922. By its terms it became effective October 1st, following. For over six years by order of some court or other the city has been restrained from enforcing it. I think it is high time that the restraint of the courts on the city of Detroit should be released and it be permitted to exercise the right secured to it by the Constitution of reasonable control of its streets. The bill before us is an injunction bill pure and simple. While the question of former adjudication is not before us, the question on this motion to dismiss is before us of whether there is any equity in the bill, whether, assuming all the facts properly pleaded in the bill to be true, the ordinance is an invalid, unenforceable, unworkable piece of municipal legislation justifying and requiring the court by its injunction to inhibit its enforcement. I think that question is before us on this bill and motion to dismiss, and that it is our duty to decide that question and to decide it right now. The case of *Page 492 necessity centers around section 4 of the ordinance. This is the section limiting the routes. If this section is valid and enforceable, no beneficial relief can be granted plaintiffs; accepting the allegations of the bill as true, as we must, the jitneys are out of business in Detroit unless the enforcement of the provisions of this section is restrained. Paragraph 24 of the bill before us is as follows: "Section 4 of said ordinance provides as follows: " 'Every person, persons, firm or corporation operating any jitney shall supply the police department of the city of Detroit with the name, number and address of the owner and driver of, and route upon which any jitney shall travel and make a prompt report showing any change regarding the same, provided, however, jitneys are hereby excluded from operating on Fort street west, Fort street east, Michigan avenue, Grand River avenue, Cass avenue, John R. street and the parks and boulevards described in chapter 65 of the Compiled Ordinances of 1920.' "The streets mentioned in the above quoted section from which jitneys are excluded are the main thoroughfares of said city and the only thoroughfares upon which there is a demand for jitney service and on which such service will be of any benefit to the traveling public. The exclusion of jitneys from said thoroughfares means annihilation of jitney service in the city of Detroit." It must, therefore, be patent that plaintiffs can have no beneficial relief here and that the city should not be restrained from enforcing the ordinance, unless one of two things happen in this lawsuit, i. e.: (1) That this court recede from its holding that the city under the Constitution has reasonable control over its streets and exercising such control may prescribe routes for common carriers, for jitneys, or *Page 493 (2) the court finds such invalidities in other provisions of the ordinance or proceedings in its adoption as will render the entire ordinance a nullity. One of these two things must happen or plaintiffs' bill should be dismissed. I am not prepared to recede from the former holding; I am not persuaded that there were any defects in the enactment or promulgation of the ordinance; I am not satisfied that there are any defects in the ordinance of sufficient importance to render the ordinance voidin toto. By joining many classes of plaintiffs, it is sought to attack the ordinance from every conceivable angle. Both associations of jitney owners and drivers, plaintiffs before, are again with us; their officers are joined; individual owners and drivers are joined; residents of Highland Park also come in; owners of land in territory served by jitneys also join. As to this latter class, defendants claim they are not proper plaintiffs. I do not think they are proper plaintiffs. Home Telephone Co. v. Michigan Railroad Commission, 174 Mich. 219. But if they are proper plaintiffs they would not be entitled to any relief unless the ordinance is invalid. Their joinder neither helps nor hurts plaintiffs' case. 1. It is insisted that the ordinance was not legally promulgated. This goes to the validity of the entire ordinance. If this claim is well grounded, plaintiffs are entitled to the relief prayed. Section 20, chap. 1, tit. 3 of the charter of the city of Detroit is as follows: "All ordinances shall be published immediately after their approval for three successive days in a daily newspaper printed in the English language in the city. A compilation of all the ordinances of the city shall be made by the city clerk at least once every two years." *Page 494 The ordinance was approved by the mayor May 29, 1922; as noted, it took effect October 1st, following. It was published in the Detroit Legal News on June 3, 5 and 6 (May 30 being Decoration Day and June 4 being Sunday). It is insisted that this was not "immediately" in accordance with the provision of the charter, that the Detroit Legal News was not a newspaper within the requirement of the charter, and that three publications were not sufficient; that there should have been four. The consensus of opinion is that the word "immediately" when used as here is synonymous with the words "without delay." InSheldon v. Wright, 7 Barb. (N.Y.) 39, the provision of the statute was as follows: * * * "which order shall immediately thereafter be published for four weeks successively in two or more of the public newspapers printed in this State, one of which shall be the paper, if any, published in the county where probate of any such will shall be had or administration granted." It was held that the statute should be followed in order to give the court jurisdiction, and it was said: "I think, however, that the proof in this case clearly establishes a compliance with the law in this respect. 1st. With respect to the time of the first publication of the order, the statute is that the order shall be immediately published, etc.; and it was contended upon the argument, that as the order was made on the 6th of September, and the first publication in one of the newspapers not until the 27th, it was not immediately published. In most cases it would be impossible to comply with the statute literally, if by the word 'immediately' it is to be understood instantly, or upon the same day of making the order. I think the statute only requires the publication *Page 495 to be four successive weeks before the day of showing cause, and that the only force which can be given to the word 'immediately' is a direction that the order be published as soon as conveniently may be. Any other construction would be impracticable." In State v. St. Paul Trust Co., 76 Minn. 423 (79 N.W. 543), it was said: "The statute, as before noticed, requires the treasurer to make out the list on April 1, and immediately to certify and file it with the clerk. This word 'immediately' is to be given a rational construction, and it does not, in legal proceedings or in statutes, necessarily import the exclusion of any interval of time. It is a word of no very definite signification, and it is much in subjection to its grammatical and other connections. Gaddis v. Howell, 31 N.J. Law, 313, and cases cited. Here, from its very connection, it must mean within a reasonable time, because it would be impossible for the treasurer to make up his list and to certify and file it on the same day, — except, perhaps, in one of the smaller counties." See, also, State, ex rel. Cothren, v. Lean, 9 Wis. 279;Fidelity Deposit Co. v. Courtney, 103 Fed. 599; Maloney v.Rogers, 6 Kulp (Luzerne Legal Register, Pa.), 289; Fidelity Deposit Co. of Maryland v. Robertson, 136 Ala. 379 (34 So. 933) ; State v. Clevenger, 20 Mo. App. 626. The ordinance in question did not take effect until October 1st, a holiday intervened between its approval and its first publication, some time was required by the city clerk to prepare the copy, read proof and attend to his other duties. I think the publication was "immediately" in contemplation of the law. The ordinance was published on three successive days; this is all *Page 496 the charter requires. The Detroit Legal News is a daily newspaper printed in the English language in the city of Detroit; it prints news of the courts, legal notices, and proceedings. Publication of the ordinance in it was a compliance with the charter: Hoock v. Sloman, 155 Mich. 1. It is urged that the clerk did not record it and it was not authenticated in accordance with section 3002, 1 Comp. Laws 1915. This provision relates to cities of the fourth class. Our attention is not called to any similar provision of the charter of Detroit. If there is such provision it is directory.Vernakes v. City of South Haven, 166 Mich. 595. I think the ordinance was validly promulgated. 2. It is insisted that sections 3 and 5 of the ordinance vest arbitrary authority in the mayor to grant or refuse to grant and to revoke licenses to jitney owners and jitney drivers. I do not think these sections are open to this objection. As to owners, the applicant must be 21 years or over, of good moral character, not addicted to the use of intoxicating liquor, and one who has not been convicted of a felony within a year prior to the application. A driver, in addition to these qualifications, must also be of sound physique, not subject to any infirmity of body or mind which would make him unfit to drive the car, and be able to read and write the English language. These requirements set up certain standards which must be met. Obviously there must be vested somewhere in some officer power to pass upon the fitness of the applicants. InMelconian v. City of Grand Rapids, 218 Mich. 397; 405, Mr. Justice SHARPE, who wrote for the court, said: "The only restriction on the control which the city may exercise over its streets under the constitutional provision is that it must be reasonable. The *Page 497 authority to grant a license must be conferred upon some person, body or commission. When the regulation affects private rights, it is held as a general rule that the requirements for obtaining a license must be so specifically pointed out in the ordinance as to permit all applicants who comply therewith to secure a license as a matter of right and that an arbitrary discretion to grant or refuse may not be conferred. In cases where the public health or safety is involved, this rule has been relaxed and a provision conferring discretionary power has been sustained. * * * "Where, however, the subject-matter sought to be controlled is one to which an applicant has a permissive right only, many courts have gone far in holding that the validity of the provisions under which such right may be attained cannot be questioned." See, also, Hyma v. Seeger, 233 Mich. 659. 3. It is said that this ordinance is in conflict with Act No. 209, Pub. Acts 1923, and that it deprives the Michigan public utilities commission of jurisdiction over these common carriers, but in Red Star Motor Drivers' Ass'n v. MichiganPublic Utilities Commission, 235 Mich. 85, this court, at the suit of one of these plaintiffs, held that act not applicable to plaintiff, and in Highway Motorbus Co. v. City of Lansing,238 Mich. 146, it was urged that the carriers were under the control of the commission, hence immune from city legislation. We sustained the constitutional right of the city to reasonable control of its streets and said: "Such reasonable control may not be taken from them by the courts, by individuals, by administrative bodies or by the legislature itself." 4. The provisions of section 14 providing for reciprocal arrangements with jitneys licensed by *Page 498 adjacent municipalities is also assailed, the following provision being the subject of attack: "Provided, further, that the route to be traveled by such nonresident so operating in the city of Detroit shall be designated by the police department." It is urged that this proviso permits the police department to allow outside jitneys to use the prohibited streets while withdrawing them from resident owners and drivers. Such a construction is untenable. We have quoted section 4. It prohibits all jitneys from using the excepted streets, whether they be locally owned or owned outside. The only reasonable construction of this reciprocal arrangement is that all jitneys are prohibited from using the excepted streets, but that the police department may permit outsiders to use other streets to be named by the department. So construed the plaintiffs are not discriminated against. 5. The provision limiting the granting of licenses to residents of Detroit is of very doubtful validity. If a nonresident of Detroit was here presenting himself as an applicant for a license as owner or driver, and met the requirements of the ordinance, we would no doubt give heed to his plaint. But no such party is before the court. Nonresidents of Detroit are made plaintiffs, but none of them are asking for a license; all of them are demanding the right to use Woodward avenue and the other prohibited streets without license and in violation of the ordinances. I shall presently call attention to some cases dealing with this situation. 6. What I have just said is applicable to the objection to the requirement that a bond be furnished as indemnity from damages done while operating *Page 499 either within or without the city limits, although there is much less doubt about its validity than the other provisions. It could possibly be sustained in its entirety under the particular facts existing in Detroit. Generally, a city, in the absence of a grant of such power, may not enact legislation applicable outside its limits. But Detroit entirely surrounds two independent cities. Some of the jitneys operate through these cities, carrying their passengers out of and back into the city of Detroit to complete their journey. It may be that the city could lawfully impose such requirement. But we need not decide such question. No driver or owner is here seeking a license without bond or with bond. 7. Two cases, both written by Justice STEERE, illustrate the point suggested under (5) and (6). In Hughes v. City ofDetroit, 217 Mich. 567, some 300 hucksters joined in a bill to restrain the enforcement of an ordinance of the city. It will be noted that residents of Detroit alone were entitled to the licenses issued under the ordinance. In its main provisions the ordinance was sustained. None of the plaintiffs had applied for a license under its terms. A decree dismissing their bill was affirmed. In Goldstein v. City of Hamtramck, 227 Mich. 263, the ordinance likewise limited the granting of licenses to residents of the city. Plaintiff, a nonresident who had an established trade in defendant city, tendered a bond and the license fee and applied for a license, which was refused. He filed his bill asking that the ordinance be declared invalid. The defendant urged that, under the Hughes Case, the bill should be dismissed. This court held that, upon the case as made, plaintiff had been discriminated against and his bill was sustained. In the instant case it is manifest that all the plaintiffs who are residents *Page 500 of Detroit fall within the reasoning of the Hughes Case, and it is equally manifest that those of plaintiffs who reside in Highland Park have not taken such preliminary steps as would bring them within the Goldstein Case. Outside the objections to section 4, which we have held were untenable, and the objections to the promulgation of the ordinance which I think are also untenable, the objections are aimed at unimportant provisions of the ordinance, provisions which could go out and still leave a workable law. I have given consideration to all the objections urged, and outside the two just referred to, I think the ordinance could be sustained as a workable ordinance if all such objections were sustained. In one of the leading cases cited by plaintiffs (Robison v. Minerand Haug, 68 Mich. 549), four of the important provisions of a then recently enacted liquor law were held to be unconstitutional, but the act with these eliminations was nevertheless sustained. Mr. Justice CAMPBELL, who wrote for the court, said in concluding the opinion: "The important question remains, how far the objections referred to destroy the statute. Although there is some difficulty in assuming that the legislature would have passed the statute as it must be modified, yet it must be presumed they would have yielded to the constitutional objections if plainly pointed out; and in most other respects the law does not differ in principle from the existing legislation, and the new taxes and penalties not involving the peculiar disabilities named are valid, as well as the new methods of prosecution in the upper instead of the justices' courts. We therefore hold that, except as we have before pointed out, the law may be enforced. If difficulties arise upon points not considered by us, they will have to be dealt with as they *Page 501 arise; but there is no likelihood that there will be any such trouble in enforcing the essential parts of the law, and we cannot anticipate any serious question with the light we have received from the argument." Section 18 of the ordinance in question is as follows: "Section 18. If any clause, sentence, paragraph or part of this ordinance shall for any reason be adjudged or decreed to be invalid by any court of competent jurisdiction, such judgment or decree shall not affect, impair or invalidate the remainder of this ordinance, but shall be confined to its operation to the clause, sentence, paragraph or part hereof directly involved in the controversy in which said judgment or decree shall have been rendered." 8. It is finally insisted by plaintiffs' counsel that under section 13753, 3 Comp. Laws 1915, he is entitled as matter of right to file an amended bill if it be found that the bill now before us does not state a case for equitable relief. But this statute has been construed by this court not to be mandatory and to go no further than the former rule. Macomber v.Cottrell, 162 Mich. 718. In that case the court had before it both the rule and the statute and it was held (quoting from the syllabus): "Although Chancery Rule 9, subd. e, requires that after a demurrer to the bill of complaint has been sustained, the complainant be given an opportunity to amend, the bill may be dismissed unless it can be effectively amended. "Act No. 299, Pub. Acts 1909, amending I Comp. Laws, § 549, is declaratory of the pre-existing practice in circuit courts as to the right to amend, and is not intended to confer an absolute right to amend in all cases, where the demurrer is sustained on appeal." *Page 502 The court in that case placed reliance on Bigelow v. Sanford,98 Mich. 657, 662, where it was held: "On sustaining a demurrer which goes to the merits of the whole bill, the bill may be dismissed, but, on the allowance of a special demurrer of this nature, where the objection can be obviated by simply striking out the objectionable feature, the court should give an opportunity for amendment." The motion to dismiss in the instant case goes to the merits of the whole bill. Under the former practice, it would have been a general demurrer. I think the practice permits this court, in its discretion, and when justice requires, on sustaining a motion to dismiss, to remand the case to the circuit with leave to there apply for permission to file an amended bill, but I do not feel that in this case justice requires such a course. I believe it would be an abuse of discretion to further prolong this already protracted litigation. For over six years the city has been restrained from enforcing this valid ordinance. The bill before us is the second amended bill. Already plaintiff has been permitted to amend not only once but twice. The order appealed from is reversed and a decree here entered dismissing plaintiffs' bill, with costs of both courts. FEAD, C.J., and CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred with FELLOWS, J. *Page 503