128 Mich. 164 | Mich. | 1901
The relator is a street-railway company •organized, and its road is in operation upon the streets of the city of Jackson, under Act No. 35 of the Laws of 1867. The consent of the city to the construction and operation of the
The order of the respondent is attacked upon several grounds. It is said:
First. He has not power to make such an order, because (a) the railway has a vested right, under the law and its arrangement with the city, to the use of the highway, and that this is taken away; (b) the city has a similar right to have the highway so used, and to control such use, and it is deprived of these rights; (c) the relator cannot elevate its track in the manner prescribed without first acquiring a right from abutting landowners, and, as it has not the right of eminent domain, it is powerless to do so, and therefore is deprived of the right to build and operate its road; (d) that all of these are vested rights, of which relator and the city cannot be deprived without due process of law, and that involves action by the judicial branch of the government.
Second. The law is unconstitutional, as class legislation.
Third. That the order of the commissioner, if otherwise valid, should be vacated because it is not reasonably practicable for the relator to comply with it; and, at all*167 events, it should be modified by compelling the steam roads to share the expense of the overhead crossing.
The petition does not state the date of the adoption of the ordinance giving authority to build in the street, but as the track on Francis street was required to be constructed within one year from the time that the ordinance took effect, which time had apparently not expired when the briefs were made, and as it clearly contemplates application to the commissioner, we conclude that the relator’s rights were acquired after the laws cited were in force, and subject to the provisions of such laws, so far as they are valid. We do not mean to imply that such laws apply only to rights acquired since their passage, but, as we have that kind of a case before us, we need not consider the effect upon pre-existing rights.
The act under which this company was organized was passed in 1867. See 2 Comp. Laws, § 6131 et seq. In 1897 three sections were added to this act, one of which (2 Comp. Laws, § 6166) reads as follows:
“ All street-railway corporations organized or doing business under this act shall be subject to the supervisory control of the commissioner of railroads, as provided by act number one hundred and seventy-one of the Public Acts of Eighteen Hundred and Ninety-Three; and the commissioner of railroads shall also'have power to make from time to time reasonable rules and regulations for the operation of the street railways of such corporations in the conduct of the suburban express business they are authorized to carry on by this act as amended.”
The effect of this amendment is to make Act No. 171, Pub. Acts 1893 (2 Comp. Laws, § 6319 et seq.), a part of it, to the extent indicated.
It is urged by counsel that Act No. 171 is unconstitutional, and it may be said that an unconstitutional act cannot be made a part of another act by reference. Without passing upon that question, it is enough to say that, whether the act can be applied to rights which vested previous to its passage or not, it can stand as to those
“An act to regulate the construction of the tracks of railroads and street railroads across each other, and the stringing of wires, electric or other, over railroad tracks, and relative to the maintenance of such tracks heretofore so constructed and wires heretofore so strung.”
The plain object of the act, as expressed by the title, is the protection of life and property at crossings of railroads and street railroads. The claim that two objects are expressed, because wires are referred to and regulated, does not impress us. We are not certain that the title might not have been made broad enough to cover any appliance or structure erected over railways or street railways; but it is unnecessary to decide this, for, if it were necessary to sustain the act, we would be justified in limiting the act to those wires which are used in connection with one or the other of the roads.
The city of Jackson has no authority, other than that conferred by law, to enter into any arrangement to permit the use of its streets by railway companies, and no railway corporation has a right to build such railways, or even to exist, except by legislative permission. This railway, then, acquired a vested property right, not to build a railroad upon the surface of the ground, in the street, at all events, but only where the law permits, and in compliance with the law. It has no right to build any other kind of a road, or to build a road in any other than a lawful way or place. These are conditions of the grant of its vested property rights, and, if it cannot comply with them, it cannot build the road. The State is not obliged to authorize the building of railways in the streets; hence, if it chooses to do so, it may impose conditions. One of these conditions is that at crossings of steam roads it shall comply with the requirements of the State, to be determined by the railroad commissioner, as to the method of crossing, and the expense of the same. It was competent for the State to forbid any crossing at grade, and the law
The act gives relator the right to except to the ruling of the commissioner. If by that is meant (and we do not say so) that this court will review his discretion upon the facts, it can, at the most, be in cases where there is a clear -abuse of discretion, and it would be necessary for us to have the facts clearly before us to do that. Detroit, etc., Ry. v. Commissioner of Railroads, 127 Mich. 219 (86 N. W. 842). No evidence is returned, and there may not have been any taken, for the commissioner returns that lie.
