Township of Sandstone v. Michigan Railway Co.

Brooke, J. (after stating the facts). The first po [245] sition taken by the appellant is that the provisions of the so-called Foote franchise are not now in force or binding upon the respondent: “ (a) Because said franchise terminated by its self-executing provisions. “(b) Because formal notice was waived by the traction company’s representative at the board meeting on July 1, 1902. The notice of forfeiture, Exhibit 1, as provided for in section 8 of the Foote franchise, was a ministerial act properly delegated to the township clerk and members of the board, and fully authorized by the original franchise resolution. No further formal action by the board was required for the purpose of declaring a forfeiture or authorizing the notice. Were such action necessary, it was furnished by the resolution of July 1, 1902.” (a) It seems to be well settled that a forfeiture clause which would be self-executing and would dispense with judicial proceedings or the intervention of the attorney general must be plain and unmistakable in its terms (New York, etc., Bridge Co. v. Smith, 148 N. Y. 540 [42 N. E. 1088]), and it has been held that, where franchises are granted by the legislature to construct a street railway within a certain time with a provision that, if the provisions of the act are not complied with, the franchise should be forfeited, the failure, without legal excuse, to lay the track within the time limited, does not work a forfeiture of the right to construct without a judgment at the suit of the State declaring the forfeiture (Application of Brooklyn Elevated R. Co., 125 N. Y. 434 [26 N. E. 474]; Booth on Street Railways [2d Ed.], § 46; Union Street B. Co. v. Saginaw Circuit Judge, 113 Mich. 694 [71 N. W. 1073]), and a municipality may not forfeit a grant where a company has constructed its road after the time prescribed by the ordinance has expired, where, as in the case under consideration, such construction is carried on without interference from [246] the municipality. It is particularly true that an effective forfeiture may not be extra judicially declared where the railroad company has entered upon the construction of the road in good faith, relying upon the grant. Knickerbocker Trust Co. v. City of Kalamazoo, 182 Fed. 871; Iron Mountain R. Co. v. City of Memphis, 96 Fed. 123 (37 C. C. A. 410); City of Detroit v. Plank Road, Co., 43 Mich. 144 (5 N. W. 275). (5) With reference to the service of the -notice of forfeiture upon the person or company then holding the franchise and constructing the. road thereunder, it clearly appears that, though the notice was signed by every officer of the municipality, it was not so signed at any regular or special meeting of the board, and no resolution of forfeiture was ever passed by the township board. Municipalities in the performance of legislative acts or acts involving discretion and judgment can so act only at authorized meetings duly held, and the members of said board cannot make a valid determination binding upon the municipality by their assents separately or individually expressed. 2 Dillon on Municipal Corporations (5th Ed.), § 501, and cases cited in notes 4 and 5. It is next asserted on behalf of appellant that the rate of fare given to the respondent by the franchise from the city of Jackson to the Jackson & Suburban Traction Company is controlling as to the transportation of all passengers east of First street in the city of Jackson. In support of this claim it is pointed out on behalf of respondent that the respondent, which is the operating company under a lease from the Michigan United Railway Company, which is. the assignee of the franchise granted by the city of Jackson to the Jackson Suburban Traction Company, operates its lines within the city of Jackson under the city of Jackson franchise which was granted a year or more before the so-called Foote franchise was granted through [247] the township of Sandstone. It is clear from the record that through some sort of a traffic arrangement made as early as 1903 the operating company transported its cars through the township of Sandstone and over the tracks of the Jackson Suburban Traction Company within the city of Jackson to its interurban station, this station being located some distance east of First street. Later, on July 25, 1908, the Michigan United Railways Company, through mesne conveyances, became possessed of the franchise rights of the Jackson Suburban Traction Company. Thereafter the various operating companies then being the owners of all the franchise rights both in the city of Jackson and the township of Sandstone for a period of more than seven years carried passengers through the township of Sandstone to the interurban station within the city of Jackson east of First street at the Foote franchise rate of li/á cents per mile until 1915, when the new tariff was filed under which respondent asserted its right to exact a city fare from interurban passengers upon reaching the intersection of First and Main streets in the city of Jackson. The language of the Foote franchise is not obscure or ambiguous. It provides for a fare rate of 1% cents per mile “from any point within said township of Sandstone to any point within the city of Jackson and from any point within said city of Jackson to any point within said township of Sandstone.” That Foote and his associates to whom said .franchise was given constructed that particular road only to the intersection of First and Main streets, within the city of Jackson, it seems to us is of no particular significance. They evidently intended to make traffic arrangements with the urban lines of Jackson by means of which the interurban cars could reach the center of the city, and this they were able to do until they, or the various companies succeeding to their [248] rights, were able to acquire the entire system urban, as well as interurban. The construction given these contracts by the various operating and owning companies' during a period of 12 years, while perhaps not absolutely controlling, is most pursuasive (Rice v. Railway, 122 Mich. 677 [81 N. W. 927, 48 L. R. A. 84] ; Township of Ross v. Railways Co., 165 Mich. 28 [130 N. W. 358]), inasmuch as it has not been, observed that public service corporations habitually charge less than the tariff permitted by their franchise contracts. We conclude, then, that the road through the township- of Sandstone was built under the Foote franchise, and was and is operated under it, and that section 6 of said franchise is binding upon the respondent in this case, and under the terms thereof respondent must carry passengers from any point within relator’s township to its interurban depot within the city of Jackson at the franchise rate of 1% cents per mile. Finally it is asserted on behalf of respondent that to enforce the terms of the ■ so-called Foote franchise would amount to a violation of the respondent’s constitutional rights. If we are correct in our conclusions hereinbefore announced, this claim requires no discussion. The judgment is affirmed. Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.