City of Kalamazoo v. Titus

208 Mich. 252 | Mich. | 1919

Stone, J.

(after stating the facts). In City of Kalamazoo v. Kalamazoo Circuit Judge, 200 Mich. 146, it appeared that the city, then existing under a special charter, after the expiration of a franchise of the Michigan Light Company, passed an ordinance, taking effect August 1,1016, fixing the price to be charged for gas at 75 cents per thousand feet and imposing penalties for disobedience of its provisions. The city sued to recover a penalty because the company persisted in charging more than the prescribed price. Upon an appeal to the circuit court, the city asked for an order permitting it to examine the books of the company, and the company moved to dismiss the case on the ground that the ordinance was invalid. It was dismissed. An order to show cause why the order dismissing the suit should not be set aside was made by this court, and upon the petition for the order and the return we decided, (1) that the fixing of such prices or rates is a governmental, legislative, function, which (2) may be delegated by the legislature to a municipality, but (3) only in express terms or by necessary implication, and that it did not appear that the power had been delegated to the city, expressly or by necessary implication, (4) that the asserted power was not conferred upon the municipality by section 28, article 8, of the Constitution. City of Detroit v. Railway Co., 172 Mich. 136, was cited. Thereafter, as has been related, the city of Kalamazoo adopted its present charter and enacted the ordinance in question.

The charter provision, the ordinance, the argument made for the city, indeed, the suit itself, reflect a popular interest in, and, we conceive, a popular misunderstanding about the subject of home rule, so-called, in cities. There is apparent a widely spread notion that lately, in some way, cities have become possessed of greatly enlarged powers, the right to exercise which m,ay come from mere assertion of their existence and the purpose to exercise them. Whether these powers are really inherent in the community, but their exercise formerly was restrained, or are derived from a new grant of power by the State, or may be properly ascribed to both inherent right and to a new grant, are questions which do not seem to bother very much the advocates of-the doctrine that they in any event exist. On the other hand, there is expression of grave doubt whether, in the view of the law, there has been any enlargement or extension of the subjects of municipal legislation and control or of the powers of cities except as those subjects and powers are specifically enumerated and designated in the Constitution itself and in the home rule act.

Political experiment has not yet produced, in this State, the autonomous city, — a little State within the State. We have a system of State government and the right of local self-government is, and always has been, a part of the system. We have, as we have always had, a State Constitution, the fundamental law. By it, now, as formerly, the legislative power of the State, and all of it, is reposed for exercise in a legislature; save only as reserved by referendum and initiative proceedings, which are not here involved.

“One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of - the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is changed. * * *

“It has already been seen that the legislature cannot delegate its power to make laws; but fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the legislature, in the entire absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon them the powers of local governmexit, and especially of local taxation and police regulation usual with such corporations, would always pass unchallenged. The legislature in these cases is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and officers is not understood to belong properly to the State; and when it interferes, as sometimes it must, to restrain and control the local action, there should be reasons of State policy or dangers of local abuse to warrant the interposition.

“The people of the municipalities, however, do not define for themselves their own rights, privileges, and powers, nor is there any common law which draws a definite line of distinction between the powers which may be exercised by the State, and those which must be left to the local governments. The municipalities must look to the State for such charters of government as the legislature shall see fit to provide; and they cannot prescribe for themselves the details, though they have a right to expect that those charters will be granted with a recognition of the general principles with which we are familiar. The charter, or the general law under which they exercise .their powers, is their constitution, in which they must be able to show authority for the acts they assume to perform. They have no inherent jurisdiction to make laws or adopt regulations of government; they are governments of enumerated powers, acting by a delegated authority; so that while the State legislature may exercise such powers of government coming within a proper designation of legislative power as are not expressly or impliedly prohibited, the local authorities can exercise those only which are expressly or impliedly conferred, and subject to such regulations or restrictions as are annexed to the grant.” Cooley’s Constitutional Limitations (7th Ed.), pp. 168, 264 et seq.

The quotations are sufficient to present, in a general way, the theory up to this time judicially admitted of the relation of cities in the State to the State itself. It was said by Chief Justice Campbell in People v. Hurlbut, 24 Mich. 44, 89:

“Our Constitution cannot be understood or carried out at all, except on the theory of local self-government; and the intention to preserve it is quite apparent.”

In the Constitution of 1850, the subject was not left wholly to the application of a general theory of State government, but was referred to in provisions in harmony with that general theory. In article 4, section 38, it was provided that—

“The legislature may confer upon organized townships, incorporated cities and villages, and upon the board of supervisors of the several counties, such power of a local, legislative and administrative character as they may deem proper.”

In article 15, section 13, the legislature is enjoined to provide for the incorporation and organization of cities and to restrict the powers of taxation, borrowing money, contracting debts and loaning their credit.

A general law for the incorporation of cities is not, as we know, a new, but is a very old, thing. We have had such a law for many years. But the legislature was much occupied in granting special charters to cities, and in making successive amendments to such charters. The supposed evils attending upon the enactment of special charters brought about a constitutional amendment. As invention and use created necessity for certain local conveniences, usually furnished and managed by private action, communities sought enlargement of their powers so that they might own and control the means by which such conveniences were furnished. They sought to have these enlarged powers defined and put, in a measure, beyond legislative control. The history of the changes is not important. In the Constitution of 1909 appears the result of them. A brief reference to them will be made. The heading of article 8 of the Constitution is “Local Government.” It is provided (section 20) that the legislature shall provide by a general law for the incorporation of cities and in the general law shall limit their rates of taxation for municipal purposes and restrict their powers of borrowing money and contracting debts. Section 21 reads as follows:

“Sec. 21. Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State.”

In section 22 permission is. given to any city or village to acquire, own, establish and maintain, either within or without its corporate limits, parks, boulevards, cemeteries, hospitals, almshouses and all works which involve the public health and safety. In section 23 it is provided that, subject to the provisions of the Constitution, any city or village may acquire, own and operate, either within or without its corporate limits, public utilities for supplying water, light, heat, power and transportation to the municipality and the inhabitants thereof and may sell and deliver water, heat, power and light without its corporate limits, and may operate transportation lines without the municipality within such limits as may be prescribed by law. The method of financing the acquisition and operation of a public utility is dealt with in section 24, and in section 25 limitations are laid upon the exercise of the powers conferred. Section 28, because its provisions are relied upon by the plaintiff in certiorari, is set out :

“Sec. 28. No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the consent of the duly constituted authorities of such city, village, or township; nor to transact a local business therein without first obtaining a franchise therefor from such city, village or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.”

With regard to the subject we are considering, the impressive thing about these constitutional provisions is that they recognize and affirm the theory that cities owe their origin and their powers to the legislature. And while cities may refer power to do some things, as, for example, power to acquire certain public works, directly to some of these constitutional provisions, it must be admitted that all of these provisions should be considered with reference to the fact that legislative power is vested in the legislature and that the Constitution recognizes, as former Constitutions have recognized, the general control of the legislature over cities. That the legislative power ought , to be exercised in such manner as to preserve the right of local self-government is a doctrine which in application in no way modifies or qualifies the idea of the general legislative power of creation and control. If, therefore, the city of Kalamazoo, in its city commission, has power—

“to regulate the rates of all public utility companies using the streets, alleys or public places of the city”

in any case, It is a derived, a delegated, power, the source of which is the Constitution and the general law under which it is organized.

We might go further and point out, what is true, that power to regulate rates of public utility companies is not a power necessary to local self-government, denial of which, or interference with the exercise of which by the legislature, would be interference with local self-control. Counsel for the city, however, rely upon a derived, a delegated, power.

Has the legislature in the general law delegated to cities the power to fix rates — compulsory rates — for public utilities, or any of them? It is not contended that it has done so in terms. The contention made in respect to the power to fix the price of gas is, as has been pointed out, based upon the rather plenary grant of power to provide for the use, regulation and control of streets. But the fixing of a compulsory price for gas cannot be reasQnably referred to use, regulation or control of streets. The gas company derives its right to make and sell gas, not from the city, but from the State. Beyond this, we held in Traverse City v. Railroad Commission, 202 Mich. 575, 581, and in City of Kalamazoo v. Kalamazoo Circuit Judge, supra, with a reference to decided cases, that such a power, if delegated, must be delegated in express terms. As affecting the question before us, the city does not appear to have derived any new powers of legislation with its new charter. As in City of Kalamazoo v. Kalamazoo Circuit Judge, its contentions are overruled.

The matter and language of this opinion are largely those of the late Justice Ostrander, which are now formulated into this opinion of the court.

/ Judgment is affirmed, with costs to defendant in certiorari.

Bird, C. J., and Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.