115 Mich. 465 | Mich. | 1898
In 1848 the Detroit & Erin Plank-Road Company was created by a special act of the legislature, which made the general plank-road act passed at the same session a part of its organic law. This act was passed before the adoption of our present Constitution, and provided that the legislature might alter, amend, or repeal said act by a vote of two-thirds of each branch, but that such alteration, amendment, or repeal should not be made within 30 years after the passage of' the act, except under circumstances mentioned, which apparently do not exist in this case. In 1879 an amendment was made to the general law, permitting the use of screened gravel, in place of plank, upon the whole or any portion of any plank road; this being an amendment of section 31, which was added to said act in 1857, and which authorized the substitution of gravel for plank upon the whole or a portion of any such road. The company substituted bank gravel for plank, upon a portion of its road, previous to 1879, and after that time sought to do the same with other portions, when this bill was filed to restrain the use of material other than as prescribed in the law passed in 1879. A fuller statement of the facts will be found in the case of Detroit & Erin Plank-Road Co. v. Macomb Circuit Judge, 109 Mich. 371, where the jurisdiction was sustained upon demurrer. The record shows that the material which the defendant sought to use upon said
The first point mentioned is based upon the further fact that in 1850 another company, known as the Erin & Mt. Clemens Plank-Road Company, was chartered by an act exactly like that of the Detroit & Erin Plank-Road Company; and in the year 1857 the legislature passed an act under which the interests of the two roads were permitted to, and did, come under one management, under the name and charter of the Detroit & Erin Plank-Road Company. It is contended that this extended the period of 30 years to 1880, the time limited in the charter of the Erin & Mt. Clemens road. We think there is no force in this contention, for the defendant must accept one of the following alternatives: This was either a consolidation of two existing corporations, and the formation of a new one, which would be subject to the reserved powers required by the Constitution, as held in the recent case of Smith v. Railway Co., 114 Mich. 460, or it was a sale of the Erin & Mt. Clemens franchises and property,. under a law which subjected its property to the Detroit & Erin charter, as the act of 1857 expressly provides, in which case the 30 years expired in 1878. In either case the act of 1879 was valid, so far as the time of its passage is concerned. This disposes of the first contention.
The second is predicated upon the proposition that the company had certain rights as to the construction of its road, which it had accepted and acted upon, and that these could not be taken away; i. e., that it had been given the right to gravel its road, and began to do so,
Although we should find the injunction, as originally made, was fully warranted by the law in force at the time, yet the question whether it should be made perpetual is not before us, because the circuit judge has decreed otherwise. Presumably, the complainants are satisfied with the modified injunction,, and the defendant is not complaining that this is too narrow, but too broad. As stated, the law of 1897 has supplanted that of 1879, and specifies the constituents of the gravel to be used on the improvements. Prom the time of its taking effect, these companies could substitute gravel for plank only upon the conditions therein stated, and the court would have been justified in modifying its injunction so that the company should be at liberty to proceed with gravel of the quality prescribed by such law. The bill was filed to restrain the substitution of such material as the company was then using, as well as any material other than that specified by the act of 1879. By reason of the change in the law in 1897, the township has no longer a right to insist on the use of screened gravel, and the company has a right to gravel its road in conformity to the law of 1897.
The bill of complaint was sustained by the circuit court and this court, upon the ground that it was filed to prevent a threatened nuisance, dangerous to the public. An examination of the testimony not only shows conclusively that there was no justification for the claim that the projected substitution of gravel for plank upon said road would be dangerous, but it is also satisfactorily shown that the road would have been an excellent one, and a radical improvement upon that which it'was to supplant, had the defendant been permitted to go on with its contemplated work.
Testimony was taken in relation to the railway constructed, with the consent of the township, within the limits of
It appears that the nuisance theory of the bill is disposed of, because disproved; and therefore the bill cannot be sustained unless we are to say that the complainants may proceed by bill in equity to restrain a misuse of a. franchise, or to compel the performance of corporate duties. There is abundant authority for saying that there are adequate legal remedies for this, if the State is disposed to complain. Counsel for the complainants say that this question was decided) in their favor upon the former hearing; but we do not so understand that case, which was expressly limited to statutory matters. See Act No. 103, Pub. Acts 1895. The authorities cited by counsel for the defendant sustain the proposition that 'equity has not jurisdiction to enjoin misuser where there is no nuisance. In Shackley v. Railroad Co., 98 Mass. 94, the court say:
“It is clear that any suit to compel the performance of a corporate duty, in which the petitioners show no interest different from that of the whole public, should be brought in the name of the attorney general, and cannot be maintained in the name of these petitioners.”
This case was an attempt to compel a railroad company to run the number of trains required by statute.
In People v. Railroad Co., 24 N. Y. 261 (82 Am. Dec. 295), it was held that a railroad company incurred a forfeiture of its franchise by abandoning the operation of its road, but that it could not be subjected to a suit in equity
Moore v. Railroad Co., 108 N. Y. 103, was a suit in equity to enjoin the change of location of a station. The court said that
‘ ‘ There would be great difficulty in maintaining an action to compel the performance of this obligation, even if the public interests required its observance. * * * But it is, we think, a conclusive answer, in this case, to the remedy by injunction, that no public injury will result from the proposed action of the defendant. The threatened violation of a mere naked legal right, unaccompanied by special circumstances, is not a ground for injunction, when, as in this case, legal remedies are adequate to redress any resulting injury.”
See, also, Attorney General v. Insurance Co., 2 Johns. Ch. 376, where it was said:
“It appears not to admit of doubt, nor do I understand it to be disputed, that if the defendants, as a corporation, have assumed powers not within their charter, the people of this State, by their attorney general, have a complete and adequate remedy at law, either by the common-law writ of quo warranto, or by an information in the nature of such writ.”
An examination of the cases cited by counsel for the complainants upon this point will show that they involve the question of nuisance, or rest upon statutes: Inhabitants of Springfield v. Railroad Co., 4 Cush. 63; Easton, etc., R. Co. v. Inhabitants of Greenwich Tp., 25 N. J. Eq. 565; Town of Burlington v. Schwarzman, 52 Conn. 181; Craig v. People, 47 Ill. 487. If, as contended, these complainants may take upon themselves the duties of the attorney general, and may proceed, by slow process of chancery proceedings, to enforce a rigid observance by corporations of all statutory duties, it will subject corporations and the public to the danger of much inconvenience. Railroad companies may be enjoined from operating their roads until the tracks are made to conform to the statutory regulations regarding ties, rails,
The decree of the circuit judge must be reversed, and the bill dismissed, with costs of both courts. Ordered accordingly.