City of Mason v. Lansing & Jackson Railway Co.

Moore, J. The complainant is a municipal corporation incorporated under the provisions of Act No. 178, Laws 1873, by Act No. 277, Local Acts 1875, reincorporated by Act No. 272, Local Acts 1891. The defendants the Lansing & Jackson Railway Company and the Michigan United Railways Company are domestic corporations1 organized and incorporated under the provisions of an act to provide for the formation of street railway companies, the same being chapter 168 of the Compiled Laws of 1897, as amended. The defendant the Northern Construction Company is a domestic corporation organized under the provisions of Act No. 232, Pub. Acts 1903, and the defendant the Lansing Southern Railroad Company is a domestic corporation incorporated under Act No. 198, Laws 1873; this act being what is known as the “steam or commercial railroad act.” Some time prior to the month of February, 1905, Myron W. Mills, George G. Moore, and James R. Elliott, associated with othet gentlemen, became the owners of the street railway system in the city of Lansing. In the month of February, 1905, these men made application to the common council of the city of Mason for a franchise for the construction through the city of Mason of a street or interurban railway which they purposed to construct from the city of Lansing through the city of Mason to the city of Jackson. They presented a franchise to the common council of the city of Mason. The common council refused to grant the franchise desired. On the 30th of March, 1905, Myron W. Mills, George G. Moore, James — 3 — R. Elliott, the three gentlemen heretofore named, together • with David "W. Mills, executed articles of incorporation for the Lansing & Jackson Railway Company, which were filed in the office of the secretary of State; the purpose of this organization, as stated in its articles of incorporation, being— “To construct, purchase, lease, own, maintain, use and operate street railways, in, through, upon and along private rights of way, streets, roads, alleys and highways in cities and villages and extending through and from cities and villages into adjoining townships and in, through, upon and along private rights of way, streets, roads, alleys and highways in townships in the State of • Michigan, and especially the cities of Lansing and Jackson and the townships, villages and cities between said cities.” Following the organization of this corporation, it, through its officers, Myron W. Mills, George G. Moore, and James R. Elliott, executed a map of that portion of its proposed route from the southern corporate limits of the city of Lansing to the northern corporate limits of the city of Mason. This map was approved August 15, 1905, and filed in the office of the register of deeds for the county of Ingham. At or about this time the Lansing & Jackson Railway Company contracted with its officers, Messrs. Myron W. Mills, George G. Moore, and James R. Elliott, for the construction of the road upon the line designated in their map, and to facilitate the construction the contractors secured options upon and purchased further right of way both to the north and south of the city of Mason and procured franchises from townships and from the village of Leslie and made frequent application to the common council of the city of Mason for a franchise through said city, and during the year 1905 constructed some six or eight miles of roadbed. No franchise was granted by the common council of the city of Mason because the parties were unable to agree as to the street to be occupied — 4 — by said company. On or about the 31st of March, 1906, James R. Elliott and others united in the incorporation of the defendant the Michigan United Railways Company; the purpose of this corporation, as set forth in article 2 of its articles of association, being “to construct, purchase, lease, own, maintain, use and' operate street railways ” through various designated sections of the State and over certain designated routes, among which was the following: “From the, city of Lansing, Ingham county, and through the city of Mason and the village of Leslie to the city of Jackson.” Of this company Myron W. Mills became president, James R. Elliott vice president and treasurer, and George G. Moore a director, and later Theron W. Atwood became a director. On or about May 25, 1906, James R. Elliott and others effected the organization and incorporation of the defendant the Northern Construction Company. Of this company Theron W. Atwood soon became president, a position he has since continued to occupy. Some time in June, 1907, Messrs. Mills, Moore, and Elliott, who had contracted for the construction of the road with the Lansing & Jackson Railway Company, sublet the contract for construction to the Northern Construction Company. During the summer of 1907 the construction begun by Messrs. Mills, Moore, and Elliott was practically completed, and a street or interurban railway connecting with the street railway system of the city of Lansing extended to the north corporate limits of the city of Mason. While this work was in progress, Mr. Atwood made frequent overtures to the common council of the city of Mason for a franchise for the construction of such road through the city upon a line which the officers and agents had surveyed and marked; Mr. Atwood finally saying to the officers of the city that, unless a franchise was granted to the Lansing & Jackson Railway Company to construct the road where they desired to con — 5 — struct it, they would force its way through the city without a franchise. Following such representations, and the survey of the line through the city of Mason, Mr. Theron W. Atwood, James R. Elliott, and others, officers and agents of the defendant companies, organized the defendant company the Lansing Southern Railroad Company; the articles of association being filed in the office of the secretary of State on the 11th day of September, 1907. The purpose of the organization of said company, as stated in article 5 of its articles of incorporation, being to construct a railroad of T-rails, standard gauge, near the center of northeast one-quarter of section 6 of the township of Yevay, in the county of Ingham, State of Michigan; thence in said township of Yevay to a point about 350 feet south and 58 feet east of the northwest one-quarter of section 16 of the township of Yevay — which railroad is to be operated by electric power. The total length of said line being 2.36 miles. On the same day that the Lansing Southern Railroad Company filed its articles of incorporation, it filed its map of its proposed route through the city of Mason. Said route was over a private right of way, but near the route demanded by the Lansing & Jackson Railway Company and connecting the termini of the Lansing & Jackson Railway Company at the northern and southern corporate limits of the city of Mason. At once after the organization of the Lansing Southern Railroad Company the defendant, the Northern Construction Company purchased right of way within the city of Mason and proceeded to grade and construct a railway connecting with the Lansing & Jackson Railway into the city of Mason. At this juncture the bill of complaint was filed in this cause. After a hearing upon the merits, the bill of complaint was dismissed. The case is brought here by appeal. It is the claim of complainant that what is attempted to be done is to construct and operate a street and suburban railway, in fact, and that the organization of the Lansing Southern Railroad Company under the general — 6 — railroad act is a mere evasion for the purpose of getting through the city of Mason without a franchise from the common council. "We quote from the brief of counsel: “ It is the contention of the complainant: That there is generic difference between what in law is comprehended under the term ‘ street or interurban railway ’ and what is understood by ‘steam or commercial railway;’ that the legislature’s providing the two means of incorporation is- a recognition not only of the difference inherent in the services they render, but a difference in the supervision and control which the State extends over them. This distinction, although sometimes difficult to phrase in words, is nevertheless recognized in many adjudicated cases” — citing cases to be found in the brief. “The language is positive and certain showing that it was in the mind of the legislature that no company or corporation should ever obtain the benefits of a street railway business unless they ‘ shall be organized under the provisions of this act.’ * * * It is the characteristics and purposes of a road, and not the statute under which a company may seek to incorporate, that must fix the kind of a road that is in fact being constructed. * * * Whatever may be the claim of the Lansing Southern Railroad Company, they are building and proposing to build within the city of Mason the same kind of a railway, proposing to build it in the same place, to equip it with the same kind of equipment, and propose the same kind of service over it, as the Lansing & Jackson Railway Company have asked a franchise to build, equip, and furnish service over. Now the law is well settled that the right of a municipality under the statute, to refuse its consent to the use of its streets by a street railway, is an absolute one, and its power in the first instance to impose conditions is unlimited. Now that street railways can be constructed upon private right of way the power of the municipality still continues and can be enforced by injunction ” — citing cases found in the brief. It is later argued by one of the counsel for the city that such a road as is proposed to be built by the Lansing Southern Railroad Company cannot legally be built by a company organized under the general railroad law. We quote from the brief: — 7 — “Such a railroad may not be constructed under the general railroad law. It may be constructed and operated only under the street railway law, and under that law the streets of the municipality may not be crossed without its consent. The language of section 13 of the street railway act, as amended, already referred to, seems to place the proposition beyond doubt. Other sections of the act are in harmony with it. * * * I submit that it is too plain for argument that a railroad that crosses a street is literally ‘ in ’ the street. May a company organized under the street railway law that has acquired a private right of way within a city cross the streets of that city without its consent ?” — and counsel answers the question in the negative. Counsel for defendants insist they are authorized by the law to do what is proposed by them to be done. The following conclusions are fairly to be drawn from the record: (1) It was proposed and expected to build and operate a line of road between the city of Lansing and the city of Jackson through the city of Mason by a company organized under the street and suburban railway act. (2) That an effort was made to get a franchise through the city of Mason upon a street that would make a route that would be comparatively direct, and that would make it unnecessary to cross the tracks of the Michigan Central Railroad, a steam road. (3) The common council of the city of Mason was willing to grant a franchise, but insisted upon the line being laid lengthwise of one of its principal business thoroughfares. This involved a more circuitous route than the one desired by defendants, and necessitated the crossing of a steam road twice. At least one of said crossings must be made by an overhead bridge, involving a large expense at the outset, and a continuing expense during operation, to say nothing of the delay and danger of the crossings. (4) Under this situation the defendants, regarding the conditions insisted upon by the common council as too onerous, decided to abandon the operation of a street railway through the city of Mason upon the streets of said city, and to get their cars through the city upon a private right of way, without laying any track lengthwise of the — 8 — street. To accomplish this result the organization of the Lansing Southern Railroad Company was brought about as before stated. The question, then, is whether what is proposed may be legally done ? The case is one of first impression. The diligence of able counsel has not enabled them to call our attention to an authority which is decisive. Our attention is called to the case of Pennsylvania R. Co. v. Bridgeport R. Co. (Pa.), 11 Montg. Co. Law Rep. 73. A reference to the case will show that it is readily distinguishable from the case at bar. Section 6223, 2 Comp. Laws, provides in part as follows : “That it shall be lawful for any number of persons, not less than seven, to organize themselves into a corporation for the purpose of constructing, operating and maintaining a railroad,” etc. Section 6232 provides for the making, the approval, and the filing of a map. The provisions of both of these sections have been followed. Section6231 provides: “Every such corporation shall possess the general powers and be subject to the liabilities and restrictions following, that is to say:” Subdivision 1 of this section relates to the making of surveys. Subdivision 2 authorizes the corporation to receive voluntary grants of real estate and other property. The next subdivision authorizes the purchase of real estate and other property. Subdivision 5 reads in part as follows: “ To construct its road upon or across, or its railroad tunnel under any stream of water, watercourse, private road, street, lane, alley or highway, and across or under any plank road, railroad or canal, which the route of its road or railroad tunnel shalllie along, orintersect. * * * And in case of the construction of such railway upon any public street, lane, alley or highway the same shall be on such terms and conditions as shall be agreed upon between the railroad company and the common council of any city, or the village board of any village, or the commissioners of highway of any township in which the same may be; but such railway shall not be constructed upon any pub9 lie street, lane, alley, highway or private way until damages and compensation be made by the railroad company therefor to the owner or owners of property adjoining such street, lane, alley, highway or private way, and opposite where such railroad is to be constructed either by agreement between the railroad company and each owner or owners, or ascertain as herein prescribed for obtaining property or franchises for the purpose of its incorporation to be paid to the owner thereof, or deposited as hereinafter directed.” Subdivision 6 reads as follows: “To cross, join and unite its railroads with any other railroad now or hereafter constructed under any law whatever at any point on its route, and upon the grounds of such other railroad now or hereafter constructed with the necessary turnouts, sidings, and switches, and other accommodations and conveniences, in furtherance of the objects of its connections; and to make all such business arrangements as said companies may agree upon. And every company whose railroad shall be intersected by any other railroad shall unite with the owners of such other railroads in forming such intersections and connections and grant facilities for the same as hereinafter provided.” Subdivision 7 reads in part as follows: ‘£ To take, transport, carry, and convey persons and property on their said road or through such tunnel by the force and power of steam, animals, or any mechanical power, or by any combination of them, and to receive tolls and compensation therefor.” A careful reading of the act will fail to disclose any such limitation upon the powers of the company as is contained in the Pennsylvania statute, to which attention was called in the case of Pennsylvania R. Co. v. Bridgeport R. Co., supra. It is not stated that the road must be any particular length, nor that it must run through more than one municipality or township. It is only when the track is laid upon the street or highway that terms and conditions may be imposed by the common council. It was doubtless competent for the legislature to impose other restrictions, — 10 — bat it has not done so. It is a matter of common knowledge that, in nearly every city of any size, belt lines of road are constructed and operated under the provisions of the law which we have quoted, when the length of the line is quite as short as the line of the Lansing Southern road. We have recognized the legality of the operation of some of these lines. City of Detroit v. Railroad, 149 Mich. 530 (113 N. W. 365); Ilgenfritz v. Railway, 136 Mich. 634 (99 N. W. 878); Attorney General, ex rel. City of Monroe, v. Railway, 151 Mich. 473 (115 N. W. 422). There can be no doubt, if the defendants had organized under the general law and acquired private right of way, it might have operated its cars from Lansing to Jackson running through the city of Mason as it now proposes, using electricity as the motive power. If it may do this, why may not it operate part of the distance under the general railroad law over its private right of way? We find nothing in the statute which prevents it from so doing. The decree is affirmed. Grant, Montgomery, Ostrander, and Brooke, JJ., concurred with Moore, J. Hooker, J. Complainant has appealed from a decree dismissing an injunction bill. The defendant corporation the Lansing & Jackson Railway Company was organized under the street railway law (2 Comp. Laws, chap. 168) to construct an electric railway between Lansing and Jackson, through the intervening townships, cities, and villages. It is already constructed between Lansing and the city of Mason and is nearing completion between Jackson and Mason. The common council denied its right to construct its line through the city of Mason, unless it would use the main business street upon terms and restrictions which it has been unwilling to accede to. It therefore proposed to run its line through the city, west of the Michigan Central Railroad (thereby avoiding two expensive crossings) upon a private right of way. The council denied this — 11 — right, and thereupon defendant procured the organization of a railroad company, the Lansing Southern Railroad Company, under the general railroad law (2 Comp. Laws, chap. 164), to build a road through the city upon a private right of way which it has since acquired. It is obvious and not denied that this was done to enable defendant to run through cars between Lansing and Jackson over said road, in defiance of the wishes and action taken by the common council of the city of Mason. The Mason people are naturally desirous of obtaining the construction of this road through the main business street of the city, and we understand that a right to do this was and would be again offered if acceptable. The defendants, however, are unwilling to do this because of the necessary expense of two costly crossings of the Michigan Central Railroad, a difficult grade, and a deflection of its line, increasing its length. Whether a council may unreasonably require the construction of a road through a particular street to the exclusion of all others, we need not inquire, as the defendants do not raise the question by attempting the use of another street. Neither is it necessary to determine whether its requirements are unreasonable, for the same reason. The question here is whether the defendant Lansing & Jackson Railway Company has the right to put its own road, or to procure one to be built under the general railroad law, through the city, without the consent of the city. The original street railway act was passed in 1867. See .Act No. 35, Laws 1867. There can be little doubt that it contemplated only the running of cars by animal power, in the streets of cities and villages and the adjacent townships. There have been important amendments to this act since, however, which have extended the powers of companies since organized under this law. Thus Act No. 12, Pub. Acts 1893, authorized the extension and construction of such roads in the highways in townships generally. See Act No. 234, Pub. Acts 1901, and Acts Nos. 101 and 133, Pub. Acts 1905. The latter — 12 — act is an amendment to section 13. It authorized any corporation organized under the street railway act to build and operate a railway upon the streets of cities and villages and in and along the streets and highways of townships, but only upon such terms and conditions as the municipal authorities shall require. It then provides that— “Any such company may construct, use, maintain, and own a street railway upon private rights of way, and all companies shall, when necessary to enter upon and use private property in such construction and operation, have the same power and right of eminent domain as is now possessed by railroad companies.” The use of animal power for street railways had become obsolete, and electricity had been almost universally applied to them before 1905, with the consequent application to country as well as city use of the trolley car. At first they continued to be used in and along the highways, but this practice required consent and permitted restriction, if not possible prohibition by local boards. The act of 1905 relieved the roads from the necessity of building in the streets and highways and allowed the use of a private right of way. It is contended that they are not relieved of the necessity of getting the consent of local authorities for the reason that they must still cross streets and country roads, which is a building upon streets and highways requiring consent of local authorities. Act No. 101, Pub. Acts 1905, provides that no such company shall construct a road “ in, upon, above or under ” the lines of streets and ways in a city without consent; but this language does not appear in the later act, i. e., Act No. 133, passed 10 days later, which amended the same section. But we need not rest this case on a narrow ground. The amendments of these statutes show a recognition of the necessities of changed conditions. Street railways, so-called, are no longer mere creatures of city convenience. They have expanded into necessary conveniences of suburban and interurban traffic, as essential to public convenience — 13 — in their way as steam railroads are in another way. We see nothing to indicate that the legislature intended to cripple them by giving authority to localities to block their way by refusing the privilege to cross their territory. They are no longer obliged to be street railways, in fact 0i. e., in the sense that they must be confined to the street's and highways), but, like other railroads, may own their rights of way, and we have no difficulty in holding that the necessary crossing of streets and highways was a right intended to be conferred as it is under other railway acts. In short, the authority is given to build such roads, where street railway companies can acquire private rights of way by purchase or condemnation, and, like other rail-k roads, they do not need the consent of local boards, unless they wish to lay their tracks in and along streets or highways. We do not overlook the case of Detroit United Railway v. Paper Co., 149 Mich. 675 (113 N. W. 285). In that case a village had permitted the use of the east 30 feet of a street for a distance of 1,000 feet to be used for the erection of a trestle upon which petitioner’s track was laid. Subsequently, by virtue of an ordinance not published as the law required, petitioner claimed the right to use this 30-foot strip together with a 90-foot strip from defendant’s lands, which it sought to condemn, for the purpose of an embankment. The authority of the village to authorize an embankment was denied, and the validity of the proceedings was questioned upon several grounds. The opinion in that case recognized the validity of both acts, viz., No. 101 and No. 133. We feel constrained to overrule so much as was said upon that subject, as it was clearly erroneous. The authorities are practically unanimous in holding that: “ Where an act or portion of an act is amended £ so as to read ’ in a prescribed way, it has been said that the section amended is entirely repealed and obliterated thereby. It is perfectly clear that, as to all matters contained in the original enactment, and not incorporated in — 14 — the amendment, the latter must be held to have the effect of a repeal.” Endlich on Interpretation of Statutes, § 196, citing: Moore v. Mausert, 49 N. Y. 332; People v. Board of Sup’rs of Montgomery Co., 67 N. Y. 109 (23 Am Rep. 94); State v. Ingersoll, 17 Wis. 631; Goodno v. City of Oshkosh, 31 Wis. 127; Mosby v. Insurance Co., 31 Grat. (Va.) 629; Goodall v. People, 123 Ill. 389 (15 N. E. 171); State v. County of Duval, 23 Fla. 483 (3 South. 193).” We approved the same doctrine in People v. Hiller, 113 Mich. 211, citing 23 Am. &-Eng. Enc. Law (1st Ed.)„ p. 488, where many authorities are collected. Section 25, art. 4, of our late Constitution (in force when these acts were passed), provides that “no law shall be revised, altered or amended by reference to its title only;, but the act revised and the section or sections of the act altered or amended shall be re-enacted and published at length.” See People v. Pritchard, 21 Mich. 241; Tuskaloosa Bridge Co. v. Olmstead, 41 Ala. 9; Cooley on Constitutional Limitations (7th Ed.), pp. 215, 216. This requirement clearly implies that the re-enacted section is. a substitute for the amended section, as indicated in Cooley on Constitutional Limitations (7th Ed.), p. 216. In People v. Pritchard, supra, it was said: “It seems that section 2463 of the Compiled Laws. [1857], which governs the case, had previously been amended by another statute, and the effect was, it is claimed, to repeal the section as it stood in the Compiled Laws, leaving the amendatory statute to stand instead thereof. And the argument is that a subsequent amendatory statute could not properly be entitled ‘An act to amend section 2463 of the Compiled Laws [1857],’ because there was no longer any such section, and an act thus entitled could have nothing to operate upon. This-reasoning seems to us too refined for practical value. Under our Constitution the mode of amending a section of a statute is by enacting that the section in question ‘shall read as follows.’ The position of the section in the original statute is not changed, and there is no reason why subsequent amendments of the same section should not be made by reference to its number in the original, statute.” — 15 — We conclude, therefore, that this street railway had the right to go through Mason upon its own private way and to cross the streets subject to such rights of regulation as the law confers upon the city and railway commissioner. It was not necessary to organize under the general law to accomplish this, but we do not see that the fact that it has caused this to be done has created any equities in favor of complainant. The decree dismissing the bill is affirmed, with costs. Footnotes [*] Continued from Yol. 156.