DETROIT CITIZENS' ST. RY. CO. v. DETROIT RY. et al.

The controversy turns primarily upon the power of the city of Detroit over its streets,—whether original, under the constitution of the state, and hence as extensive as it would be in the legislature, or whether not original, but conferred by the legislature, and hence limited by the terms of the delegation.

The first proposition is asserted by the plaintiff in error; the second proposition, by the defendants in error.

The provisions of the constitution which are pertinent to the case are as follows:

'The state shall not be a party to or interested in any work of internal improvement, nor engaged in carrying on any such work, except in the expenditure of grants to the state of land or other property.

'There shall be elected annually on the first Monday of April in each organized township * * * one commissioner of highways * * * and one overseer of highways for each highway district.

'The legislature shall not * * * vacate or alter any road laid out by the commissioners of highways, or any street in any city or village, or in any recorded town plat.

'The legislature may confer upon organized townships, incorporated cities and willages, and upon boards of supervisors of the several counties such powers of a local, legislative and administrative character as they may deem proper.'

The supreme court of Michigan, in its opinion (68 N. W. 304), interprets these provisions adversely to the contention of plaintiff in error, and, reviewing prior cases, declares their harmony with the views expressed. 'The scope of the earlier decisions,' the court said, 'is clearly stated by Mr. Justice Cooley in Board of Park Com'rs v. Common Council of Detroit, 28 Mich. 239. After stating that the opinion in People v. Hurlburt, 24 Mich. 44, had been misapprehended, Justice Cooley said: 'We intended in that case to concede most fully that the state must determine for each of its municipal corporations the powers it should exercise and the capacities it should possess, and that it must also decide what restrictions should be placed upon these, as well to prevent clashing of action and interest in the state as to protect individual corporators against injustice and oppression at the hands of the local majority; and what we said in that case we here repeat,—that while it is a fundamental principle in this state, recognized and perpetuated by express provisions of the constitution, that the people of every hamlet, town, and city of the state are entitled to the benefits of local self-government, the constitution has not pointed out the precise extent of local powers and capacities, but has left them to be determined in each case by the legislative authority of the state, from considerations of general policy, as well as those which pertain to the local benefit and local desires; and in conferring those powers it is not to be disputed that the legislature may give extensive capacity to acquire and hold property for local purposes, or it may confine authority within the narrow bounds; and what it thus confers it may enlarge, restrict, or take away at pleasure."

This decision of the supreme court of Michigan is persuasive, if not authoritative; but, exercising an independent judgment, we think it is a correcti nterpretation of the constitutional provisions. The common council of Detroit therefore had no inherent power to confer the exclusive privilege claimed by the plaintiff in error.

Did it get such power from the legislature? It is contended that it did, by the act under which the Detroit City Railway Company, the predecessor of plaintiff in error, it succeeded. This act is the tram railway it succeeded. This act is the tram-railways act, and at the time of the adoption of the first ordinance, in 1862, section 34 of that act provided that 'all companies or corporations formed for such purposes [the railway purposes mentioned in the act] shall have the exclusive right to use and operate any railways constructed, owned or held by them: provided, that no such company or corporation shall be authorized to construct a railway, under this act, through the streets of any town or city, without the consent of the municipal authorities of such town or city, and under such regulations and upon such terms and conditions as said authorities may from time to time prescribe.' In 1867 the further proviso was added, that after such consent should be given and accepted, such authorities should make no regulations or conditions whereby the rights or franchises so granted should be destroyed or unreasonably impaired, or such company be deprived of the right of constructing, maintaining, and operating such railway.

It is clear that the statute did not explicitly and directly confer the power on the municipality to grant an exclusive privilege to occupy its streets for railway purposes. It is urged, however, that such power is to be inferred from the provision which requires the consent of the municipal authorities to the construction of a railway under such terms as they may prescribe, combined with the provisions of the constitution, which, if they do not confer a power independent of the legislature, strongly provide for and intend local government. The argument is strong, and all of its strength has been presented, and is appreciated; but there exist considerations or countervailing and superior strength. That such power must be given in language explicit and express, or necessarily to be implied from other powers, is now firmly fixed. There were many reasons which urged to this,—reasons which flow from the nature of the municipal trust, even from the nature of the legislative trust, and those which, without the clearest intention, explicitly declared, insistently forbid that the future should be committed and bound by the conditions of the present time, and functions delegated for public purposes be paralyzed in their exercise by the existence of exclusive privileges. The rule, and the reason for it, are expressed in Minturn v. Larue, 23 How. 436; Wright v. Nagle, 101 U. S. 791; Ohio v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262; Parkhurst v. City of Salem (Or.) 32 Pac. 304; Saginaw Gaslight Co. v. City of Saginaw, 28 Fed. 529 (decided by Mr. Justice Brown of this court); Long v. City of Duluth (Minn.) 51 N. W. 913. See, also, Grand Rapids Electric Light & Power Co. v. Grand Rapids Edison Electric Light & Fuel-Gas Co., 33 Fed. 659 (opinion delivered by Mr. Justice Jackson at circuit). As bearing on the rule, see, also, Oregon Ry. Co. v. Oregonian Ry. & Nav. Co., 130 U. S. 1, 9 Sup. Ct. 409; Central Transp. Co. v. Pullman Palace-Car Co., 139 U. S. 24, 11 Sup. Ct. 478.

The power, therefore, must be granted in express words, or necessarily to be implied. What does the latter mean? Mr. Justice Jackson, in Grand Rapids Electric Light & Power Co. v. Grand Rapids Edison Electric Light & Fuel-Gas Co., supra, says '* * * that municipal corporations possess and can exercise only such powers as are 'granted in express words, or those necessarily or faily implied in, or incident to, the powers expressly conferred, or those essential to the declared objects and purposes of the corporation,—not simply convenient, but indispensable." (The italics are his.) This would make 'nee ssarily implied' mean 'inevitably implied.' The court of appeals of the Sixth circuit, by Circuit Judge Lurton, adopts Lord Hardwicke's explanation, quoted by Lord Eldon in Wilkinson v. Adam, 1 Ves. & B. 466, that 'a 'necessary implication' means, not natural necessity, but so strong a probability of an intention that one contrary to that which is imputed to the party using the language cannot be supposed.' If this be more than expressing by circumlocution an inevitable necessity, we need not stop to remark, or, if it mean less, to sanction it, because we think that the statute of Michigan, tested by it, does not confer on the common council of Detroit the power it attempted to exercise in the ordinance of 1862. To refer the right to occupy the streets of any town or city to the consent of its local government was natural enough,—would have been natural under any constitution not prohibiting it,—and the power to prescribe the terms and regulations of the occupation derives very little, if any, breadth from the expression of it. But, assuming the power to prescribe terms does acquire breadth from such expression, surely there is sufficient range for its exercise, which stops short, or which, rather, does not extend to granting an exclusive privilege of occupation. Surely, there is not so strong a probability of an intention of granting so extreme a power that one contrary to it cannot be supposed, which is Lord Hardwicke's test, or that it is indispensable to the purpose for which the power is given, or necessarily to be implied from it, which is the test of the cases. The rule is one of construction. Any grant of power in general terms, read literally, can be construed to be unlimited; but it may, notwithstanding, receive limitation from its purpose,—from the general purview of the act which confers it. A municipality is a governmental agency,—its functions are for the public good; and the powers given to it, and to be exercised by it, must be construed with reference to that good, and to the distinctions which are recognized as important in the administration of public affairs.

Easements in the public streets for a limited time are different, and have different consequences, from those given in perpetuity. Those reserved from monopoly are different, and have different consequences, from those fixed in monopoly. Consequently those given in perpetuity and in monopoly must have, for their authority, explicit permission, or, if inferred from other powers, it is not enough that the authority is convenient to them, but it must be indispensable to them.

Decree affirmed.

Mr. Justice SHIRAS did not hear the argument, and took no part in the decision.