*1 n 10 App 211. 218. Opinion Court. raised have been considered questions

count. Other deemed without merit. on the second Reversed as to conviction count of affirmed carrying weapon, concealed as to convic- robbery on first count of armed. tion J., concurred. J.,C. McGregor, Lesinski, EDISON COMPANY CITY WIXOM. DETROIT OF Opinion the Court. Public Service Commissions —Jurisdiction. 1. complete power jurisdic- publie service commission has except tion all utilities the State those (CDS law municipally owned or as otherwise restricted 1961, 460.6). § Municipal Corporations Ordinances. 2. —Zonino power, is not a local ordinances itself Power to enact enabling (CL from the act but eomes §

References for Points Headnotes [8] [10] [2] [3] ^[6] [5, [4,14] 26 Am Jur [1, [11,12] Applicability 7] 9,13,15] Publie ing Am58 26 Am Jur Am58 58 Am Am Am 37 Am Jur, Utilities Jur, Jur, operating Jur, 43 Jur, 2d, Publie Utilities and Publie Utilities and Services Zoning Am Jur, Zoning Zoning Electricity, public utility 2d, Electricity, Jur, Municipal Corporations § publie utility. 10 ALR Services §§ Publie Utilities 7. §§ 7, 9, Gas and Steam §§ 10, 49, acts Gas Services 193. 193-195. 122. and Services municipal corporation Steam § §§76, 193. 10. 1432, ALR 10 43 §§ j 80, 102, 111, 193-195. Am 946. own- Jur, 1968] Co. v. ok Wixom. Jurisdiction—Specific 3. Public Service Commissions — Powers —Statutes. portion describing the statute grants specific powers service commission no to the *2 1961, (CLS 460.6). commission § Electricity Regulations. 4. Same —Transmission of — only specific powers given The service to commission regulate electricity the transmission of are limited to trans- publie mission over highways, streets exeluding and trans- private right-of-way mission over a regulating height and of only highways towers at crossings; and railroad and the by statute indicates omission spe- that the commission has no powers cific exclusive height to determine tower under other (Const 1963, circumstances §29; 460.551, art §§ 460.553, 460.554). Municipal Corporations Zoning 5. — Ordinance.

Zoning limiting height poles ordinance holding of towers by lines enabling was enacted of pro- virtue act which vides no for specifically exclusion electrical utilities pro- utility companies owning vides notice operating any to or publie utility by within the district to be affected ordinance (CL 1948, 125.581). § Statutes—Regulations. 6. Same — statutory power provision preeludes municipality

No from enaeting regulations utilities, reasonable as to electrical but regulation light limits of in local must be construed purpose publie utilities, electrie and their reason- weighing ableness determined their relation to local against purpose. their conditions effect on broad Electricity- Regulation—Zoning 7. —Transmission Lines — Ordi-

nances. height high-

Zoning regulating maximum of towers on passing through voltage electrical line munici- transmission energy carrying municipal- other pality and electrical between held, power municipality adopt, to to be limited ities within argument regulation by reasonableness, against such exclusively publie has been vested 460.551 et legislature (CL 1948, seq.; § Apr (cid:127)220 Dissenting Opinion. McGregor, Jurisdiction-—Specific 8. Public Service Commissions — Powers— Statutes. legislature creating Michigan public service commis- only sion intended to set out an outline the commission’s jurisdiction (CLS purport and did not to more do 460- .6). 9. Same —Jurisdiction—Statutes—Powers. jurisdic- complete power service commission has regulate municipally tion except all utilities owned except by law, power utilities and as otherwise restricted formation, pertaining all matters operation, public utilities, or direction such pass pertaining to hear and on all matters or incident to such (CLS 1961, 460.6). utilities Municipal Corporations -Regulations—Prohibition. — Legislative villages reasonably regulate bodies cities and can industry and restrict the locations trades and and the regulations buildings, location and such are to be made *3 of designed congestion plans in accordance with to lessen on streets, safety, general public promote public health, and (CL 1948, 125.581). welfare Pre-emption. 11. Same —State Control — government’s assumption regulation in area where the Local of single agency State has assumed control or has vested in a grant complete right, permitted activity, control of of conditions, or set is void to the extent with State of of conflict power. 12. Control. Same —State government agency may regulate Local exercise control and which the some those areas over State has assumed control regulation. completely but has not covered the area for Public Service Commissions —Jurisdiction—Statute. 13. given jurisdiction public public over utilities - grant public is an to act exclusive agency regulation by no other a local an administrative agency (CLS 1961, 460.6). permitted Jurisdiction. 14. Same —Exclusive power company, purchasing land Operations electric line and commencing high-voltage electric tfansmission for 1968] CiRy oe Wixom. land, on the service commission construction after operate power line,

granted permission to construct its subject public utility part to the became a ex- service commission. clusive Pre-emption—Local Legislative Grant — Ordinances. Same — 15. grant Michigan Legislative to service commission au- thority pre-empted utilities so field legislation, they as to exclude local ordinances so far pertain to the matter are unreasonable. (Clark J.), Appeal Oakland; from Adams J. (Docket Division 2 December 1966. Submitted 1,313.) March Decided 1968. Leave to No. granted appeal 381 Mich June See Complaint by Company, Detroit Edison a New corporation, enjoin against Wixom, York enforcement and to have it Injunction granted. ap- declared void. Defendant peals. Reversed remanded. Sprague,.Franklin plaintiff.

Fischer, Ford, & Bulgarelli (Louis & Schnels Andrews, C. Jr., counsel), for defendant. presented H. Gillis,

J. troublesome issue appeal legislature this granted is whether the has authority exclusive to the service commission regulate public preclude electric utilities so as to government attempting local from such through duly its enacted ordinances. Factually very simple the case is as it comes to *4 this plaintiff, Court. In The Detroit Company, expand Edison realized a need to its serv- doing- and in high voltage ices so run a electrical plant transmission line from its in Clair, St. Mich- plant igan, to its Michigan. in Monroe, Plaintiff App Opinion op the Court. strip right-of-way, including purchased a of land a long, and 4 miles over lands which wide 200 feet incorporated by city the defendant been have since of "Wixom. sup- plans high for tension line were

Plaintiff’s apart averaging ported by towers 850 feet portion height. particular of the route in This feet by Michigan public approved com- service was on November mission incorporated in in 1958 and

Defendant was development plan adopted. for was master adopted city an amendment to its providing pertinent portions: in in 1965 serving city of services Wixom “Essential permitted regulated authorized and shall be city and other ordinances Wixom. law necessary poles underground lines and or Overhead primarily those to be erected and towers areas approval, appeals. consider beyond city require shall the review and hearing, after the board appeals review of the board of shall Such abutting property they uses as relate poles rights-of-way, easements, lines, overhead injurious towers and shall consider further, abutting adjacent property thereto and effects on orderly appearance city. building- A on the permit required shall be such construction. column ^[*] “Add footnote ^[*] # (in feet). (p) to each footnote box (p) to read as height follows: “(p) height shall exceed No structure 100 feet has received unless such structure the review and approval appeals.” of the board of imposed Fearing upon the additional burdens it regulatory provisions, brought this action to have the above amendments grounds Two declared null and void. were asserted *5 1968] oe Wixom. Opinion op the Coukt. (1) by statutory that plaintiff court:

by trial the public authority, service commission the grant regulation pre-empted of electric field has provisions amendatory (2) and utilities, being are arbi- void defendant’s trary, discriminatory. and unreasonable, only judge on the first of these ruled The trial public holding commis- that the contentions, pre-empted field virtue CLS sion has seq. (Stat Supp § 22.13[1] Ann 1965 Cum 460.1 et portion language pertinent provides: this act service commission is “The jurisdiction complete power

hereby vested and with except regulate all utilities in the state except municipally as otherwise owned and hereby power restricted and law. It is vested with jurisdiction fares, fees, all rates, charges, all other matters tion or direction of such conditions- of service and services, rules, pertaining opera- to the formation, utilities. It fur- is granted power ther to hear and pass upon incident to such necessary pertaining all to or or matters n regulation of all utilities, including whether power companies, light electric private, corporate cooperative, gas' or companies, telephone, telegraph, gas water, oil, pipeline companies, all carriers, motor transportation agencies communication other companies.” than railroads and railroad CLS §460.6 Supp 22.13[6]). Ann 1965 Cum statutory Plaintiff contends that this broad lan- guage expresses legislative intent to vest exclu- sive in the commission. De- argues language fendant not that of the act does expressly by necessary implication preclude government regulating height local from electrical transmission towers under its Arp 10 Opinion op the Court. powers promote safety, the health, or welfare of its citizens. simply

The issue before us is whether the statu- legislative tory language indicates intent to vest sole reading If the commission. such a *6 proper, then it is clear that local ordinance in powers statutory conflictwith the of the commission City (1954), would of no be Howell v. Kaal force, of Township (1953), 341 Mich 585; Gust v. 337 Mich 137. Canton to But the enact ordinances is not power, itself a local but rather which one comes zoning enabling virtue with, acts. we What deal reality, may in are two or more statutes which may they purport pro- or not conflict insofar as vide for the utilities. portion quoted of the act which we have plaintiff already

above, and on which relies, has Supreme merely been determined our Court to be an outline of the commission’s and not grant specific powers to the commission, Huron Company Portland Cement v. Public Service Com- (1958), mission 351 Mich 255; Northern Company Water v. Public Service Commission (1967), App 5 Mich 635, As stated in Huron, supra, p at 263: general “If, language quoted indeed, had vesting particular, effect of powers specific, in the * * * there would have been no need many whatever for (both statutes enacted before and after the 3) effective date of PA 1939, No vest- ing specific powers in the commission.” plaintiff’s Indeed, support contention cannot find grant in the broad only the commission but can be finding sustained on a specific power of some with powers which local would be inconsist- ent. example, for See, Huron Portland Cement 1968] v. of Wixom. Detroit Opinion op the Court. (80 (1960),

Company City US 1294) ALR2d 852, 78 Ed 2d 4 L 813, CtS analogy. Federal-State given powers specific commission to only electricity is the trans transmission highways through electricity CL act,

mission §22.151 seq. (Stat Ann §460.551 et 1948, This transmission over limited to however act places highways and therefore public streets, pri plaintiff’s transmission over does not include however, right-of-way. note, interest to It is of vate that right specific power, grant in this even preserved to local of streets is control reasonable 22.153), Ann government, § Moreover, the electrical art and Const height specifically regulate the act does transmission highways only railroad crossi at of towers but specific ngs.1 would restrictions these Whether apply plaintiff crossing highways railroads may arguments going weighty reason to the be *7 they indicate at do ordinance, of the but ableness least the negative has inference, that the specific powers tower to determine exclusive no height under other circumstances. implied grant power find no we can

Likewise any express carrying necessary in out acts, in the with legislative be inconsistent which would intent, Telephone power. zoning Bell Co. (1946), Mich Service Commission Public go questions, to the rea- to more us, it seems Such question than sonableness powers any inconsistency enumerated with commission. virtue enacted ordinance is

Defendant’s seq. (Stat 1958 Rev Ann § 125.581 et of CL provides enabling ex- no act The 460,554 22454). (Stat A»» CL 10 App Opinion op . thb Court. (as for utilities instance for electrical elusion enabling- zoning- township act2 for oil makes rural specifically provides wells) gas fact and in companies owning operating utility or notice to the district to be affected within § 125.584 Ann 1958 ordinance. 5.2934). §Rev power provision in the find no statutes

canWe municipality from'enacting precluding reasonable regulations as to electrical utilities. The limits with the reason- are coincidental this local under all the circum- of the ordinance ableness Supply electricity and transmission of are stances. development of to the this essential well-being regula- citizens. The limits local of its light in the of this must be construed tion purpose and their course must reasonableness weigh their relation to local conditions with their purpose. effect on the broad judgment is and remanded reversed plaintiff’s findings ruling trial court for on invalidity of contention of the substantive the ordi- nance. concurred H. J., T. G. P. with J. Kavanagh,

GlLLIS, J. {dissenting). plaintiff, public McGregor, principal utility company fur- whose business is the Michigan, nishing southeastern of electrical sought injunctive protect appli- relief to itself from city. Defendant of an ordinance defendant cation plaintiff city the service area is located within city. plaintiff *8 in the defendant is franchised and the Injunctive granted in the trial court. relief was

[2] 125.271 (Stat Ann Rev § 5.2963 [1]). -1968] Detroit Edison oe Wixom. Dissenting Opinion by Mc.Gbegob, J. serving southeastern Mich- furtherance

In the process constructing plaintiff igan, in was right-of-way high-voltage line, the transmission new extending through defendant’s bound- line for this particular proposed plans route and aries. to the service commission, were submitted complete agency which has control and the State nonmunicipal utilities, electric over CLS Supp [6]), Ann 1965 Cum 22.13 1961, and the plans proposed approved and route were commission on November 13, right-of-way The 200-foot-wide was selected purchases right-of-way 1955 and for this question were first in 1956. made In 1956the land in unincorporated part was it not did 1957, become village city Wixom until nor of the length until 1958. The total Wixom land Wayne. the route involved extends from Pontiac to plaintiff’s approved plans specified The averaging towers apart, average height

850 feet with an through city of 132 feet each, of Wixom, and designed voltage were kv; about three higher eight greater times mission with about times trans-

capacity than the usual 120 kv transmission passes through city. one of line, which now As set forth in safety the national electrical code, ground clearance of the new transmission line is 33 feet instead of the usual 28 feet. This additional system load is to match the increased customer requirements. proposed Evidence showed that this replaced line could be 120 kv lines, but that it separate would take lines to so; do that if towers were high no more than require 100 feet it would double the number of towers and at least 100 feet right-of-way, more but comply such a line would not provisions with the safety the national electrical *9 App 10 McGregor, J.

.Dissenting Opinion by Michigan public service adopted by the as code plaintiff had 1965,the to June Prior commission. Pontiac. far as from St. Clair a line built emergency an defendant, in 1965, the June On prohibiting zoning meeting, ordinance its amended height, feet in towers over erection of the permit from the obtained had been until a unless placed zoning city. approval ordinance also This amended right-of-way, and of towers size of the primary whose in of overhead lines lines the case zoning beyond city the in Wixom, the of service is prohibited appeals. of erection board of It further height in without of 100 feet towers in excess approval appeals. zoning of the board places public service The height requirement at a minimum for tower a voltage, higher carrying the such on lines feet anticipated Plaintiff has the new line. as is system completed partially designed to meet its and requirements service commission. not it was within the found that court below city place zoning jurisdiction ordinance with the of the service in conflict injunction granted permitting an commission, company plaintiff of its to continue construction territory. across defendant’s lines legislature is has Plaintiff’s contention that one electrical utilities be controlled intended authority. if central It further contends that there regulate particular is intent to area activ- State ity, a local subdivision cannot that same area, that the amended ordinance in violation is arbitrary, statutes, unreasonable, discriminatory, void. therefore, city

Defendant that the contends public utility by regulation is a of a reasonable vest; city, legislature’s that it was not the intent 1968] Edison oe Wixom. Dissenting Opinion by McGregor, complete jurisdiction for the

utilities service commission, that the province protecting ordinance is within its safety people. the health, welfare its authority commission is confined as follows: *10 Michigan public “The utilities commission is an body administrative created statute and war power authority all rant for the exercise of its and statutory must be found enactments. Grand Rapids Michigan Railway & Indiana Co. v. Railroad 183 Mich Commission, 383. It has no common-law Taylor Michigan powers. v. Public Utilities Com (PUR 198).” Sparta mission, 217 Mich 400 1922 D, Foundry Co. v. Public Utilities Commis (1936), sion 275 Mich 562, 564. creating Michigan public In service commis- legislature only sion the intended to set out an jurisdiction outline of the commission’s and did not purport to do more. Huron Portland Cement Com- pany (1958), Public v. Service Commission 351 Mich (CLS legislation [Stat 255. This 1961, 460.6 Ann Supp §22.13(6)]) grants 1965 Cum to the commis- jurisdiction. “complete sion five-fold The first is jurisdiction regulate and all util- only exceptions municipally with ities,” owned utilities and other restrictions of law. The second grant “power jurisdiction is of all * * * pertaining opera- matters to the formation, tion or direction of such utilities.” The third grant pass is the to hear and on all matters pertaining or incident to such grants

utilities. The fourth and fifth are not mate- rial to the issues of this case. city, as defendant con-

tends, is set forth in Ann § 5.2931), 1958 legislative body Rev which allows Arp 10 Mich McG-kegok, Dissenting Opinion reasonably regulate and villages cities industry, and of trades locations restrict may regulations buildings. be These location of the imposed buildings designating uses for which or altered. not be erected shall or shall structures or Such regulations with made in accordance are to be congestion plans designed on the to lessen general safety promote health, streets, Co. v. Johnson Amusement National welfare. City Saginaw Noey (1935), 613; Mich v. (1942), People (1935), McDaniel 595; 271 Mich (1943), City Pontiac 303 Mich Richards v. 90; v. Grocer’s Mich Haven 666; Grand Cooperative (1951), Dairy Co. municipal con exercise of Jurisdiction pre by a governed in this doctrine State trol is summary, provides emption. doctrine, This or has vested has assumed control where State complete agency single control of the ain permitted activity, right, grant or set condi aof assumption regula government’s the local tions, *11 the State to the extent of conflict with is void tion permits agency power. a local doctrine This government and to to exercise control the has assumed some areas which State those over completely the area has covered but not control (1944), regulation. Loose v. Battle Creek 309 Mich Township (1962), Fabius Board 1; Miller v. Mich 250. complete utility gives public act

The public public the utilities to the over com grant. This an mission. is exclusive Exclusive grants agency to an administrative in this agency. cannot admit other a local Saginaw, supra. Noey City v. plaintiff’s previous

By purchases and current operations land and commencement of construction 1968] of Wixom. Opinion Dissenting by McGkegok, public service after the commission land, on such permission operate granted to construct and its had part public operations became this line, operations subject utility. became such, As jurisdiction of exclusive service com- mission. point made the defendant that the

The permits, would have to obtain licenses, expressed is well taken. This limitation is cetera, in jurisdiction being statute as the otherwise by law. This we take to mean restricted restriction existing regulation, at time and not such subsequent regulation. is restriction as made to that Any interpretation other would make the commis- power illusory subject sion’s every to the whim of government.

council of local grant respecting in local boards prior regulations dangerous their remains a situa may tion. Ordinances other eras threaten the power supply through of this State and, intercon power supplies surrounding nections, the States province and the of Ontario. This is a matter for legislative Every square correction. foot of the by plaintiff part area served municipal is of some corporation, townships1 about 250 and 500 cities villages.2 authority Each adopt now has zoning ordinances. Supreme Michigan regards Court of plenary service commission vested with over electric utilities. legally “It is statutorily intolerable once the

*12 plenary supremacy service control, over electric service utilities, fairly Any holding considered. other would sanc- ^[1] ^[2] GL 1948, 1948, § et 125.581 et 125.351 seq. seq. (Stat Ann 1958 Rev Ann 1958 Rev 5.2931 seq.) ^[1] et Arp 218. 10 232 Mich McGeegoe, Dissenting by Opinion sawing whip judicially, administrative the tion, taxpayer by agencies utility 2 any one selected proceed ordering government, that it as the one doing penalizes so.” it for other Company Corporation & Securities Commission v. (1962), 104, paramount interest of the State should prevail. public utility right statutory a to main- “The locality may not contra- be within facilities tain utility by Where a is ordinance.

vened adequate required facilities, furnish service and statute to pre- may properly not carry building designed to structures vent Zoning, § statutory mandate.” CJS, 10, out P Pennsylvania involving

In a case a somewhat analagous the court held: situation, proposed “It is clear that the line transmission necessary for the rendition of efficient service to is the legitimate necessity and that transcends the objectives political one of the sub- * * * divisions of the commonwealth. only ill-equipped “Local authorities not are comprehend jurisdiction, thorities, public beyond the needs of the their equally important, but, those au- they regulate, if had the neces- sarily eye would exercise that with an toward the local situation and not with the best interest of large point at as the of reference.” Duquesne Light Company Upper Clair Town- St. ship (1954), (105 293). Pa A2d utility powers regulatory under “A acting as an right agency its exercise of the may regulated domain not be a munic- eminent county serving ipality or a when the general public, larger reg- the local interest *13 1968] v. oe Wixom. Dissenting Opinion by McGregor, inimical to that illation larger being interest.” (Syllabus.)

“It to relieve public was utilities from the burden of local regulation legislature created the * * * public service commission. When local regulation attempts to control an activity which or a whole state large segment thereof is inter- ested, local Indianapolis must fall.” Graham Farms, Inc. Power & Light Company (1968), — —Ind NE2d (233 656, 666). legislative grant to the Michigan public serv-

ice commission of authority to regulate public util- ities has pre-empted that field so as to exclude local legislation. adopted ordinances, so far as they pertain to this matter, are unreasonable.

I would affirm the judgment of the trial court.

ROSE v. ROSE. Cruelty op por Separate 1. Divorce —Extreme —Dismissal Action Prejudice. Maintenance — Motion plaintiff’s complaint dismiss for absolute divoree on ground cruelty held, of extreme proper, previously plain- where complaint tiff separate had filed a for maintenance sub- on stantially grounds same that was dismissed after she elected proceed not to therewith when trial court her denied motion eomplaint to amend divoree, an state action for absolute and the order of expressly dismissal did not state it was with- prejudice. out ^[1] ^[3] ^[4] [2, Dismissal Decree in 5] for divorce or annulment. 90 ALR2d 745. 54 ALR2d 473. 30A Am 24 Am Jur 27 Am 24 Am Jur Jur, suit Jur, Judgments References 2d, Dismissal, civil action for want of Husband and Wife 2d, Dismissal, “separation” for Points Discontinuance and Nonsuit Discontinuance and Nonsuit res in Headnotes prosecution judicata as res subsequent § 53. judieata. 53. suit