The Detroit times., 1911-07-08
D. U. r. ORDERED TO PAY RENT
OR GET OFF STREETS


Likelihood Of action In this regard.
we nevertheless think that the OPP
portunity OF election 10 pay the
sums which would accrue from
and after the entry OF decree In
lieu OF the alternative should be
extended TO the company. Ten
days from and after the entry OF
decree will be given within which
the company may manifest q will
ingness to abide by the licensing
resolution. failing In which the
proffer OF election win be consid-
cred as rejected.
While clear that the city has
the undoubted right TO the relief
defined. II Is, unless reason to
the contrary appear, within the
power OF prevailing party to say
when, that relief shall be granted.
and II granted. upon what terms
II may be temporarily suspended.
We wait, therefore, an expression
OF the citY.s desire upon this sub
ject, before assuming the respon.
sibility OF entering the decree
awarded, and giving Its provisions
effect We take II that, though
the corporation counsel may have
the statutory power to control the
entry Of the decree, In view OF the
public interests involved. the will
OF the common council will be
consulted. The entry of the de-
cree Is, therefore, withheld until
the complainant shall have fur
Their indicated its position upon
these phases OF its rights.
About third of the decision IL de-
voted to statement of the case.
which goes back TO Jan. 81. 1855,
when the first grant of power, ger
name to the present issue, was made
to the company,s predecessors. The
history OF the grants, on the Fort
line, from that time on, Is given In
detail, together with the facts that
led up to the rental suit.
The court then takes UP the con.
tentions Of each side and disposes of
them In order. The city's side of the
controversy Is briefly stated rs fol-
lows:
The city contends that the fran
chise rights In Issue have expired. II
claims unrestricted power, In such a
situation, to levy any sum II deter
mines as the price upon which the
day-to-day operation may be permit
ted. Its terms having been refused
and rejected as illegal, II desires its
title to the affected streets cleared of
the apparent easement possessed by
the company. To that end, decree
Is asked enjoining further operation
and compelling the company to re-
move its tracks and equipment. Upon
the theory that continued operation
of the railway after receipt Of the
licensing resolution OF July 10, 1910,
denotes acquiescence In Its terms, or
at least implies consent to them, q
money decree Is prayed for the sums
directed to be paid by that resolution
and a decree also that after the en-.
try OF such a decree the defendant
be required to elect between compli.
ance with the resolution and custer
from the streets"
The principal contentious made by
the company were:
That the bill of complaint. which
amounts to q bill to settle title, will
not lie for want OF equitable jurisdic-
ton, inasmuch as the defendant Is In
possession.
That the suit IL superseded by the
Hally injunction suit now pending In
the federal court because the same
issues are involved.
That the city is stopped from claim
ing that the grants have expired, be-
cause, prior to the alleged termina-
ton OF the grants, the company ex-
pended large sums In improvements
on the road without dissent on the
city's part.
That the franchises have not ex-
pired for several reasons and were
extended, by ordinance, to Dec. IA,
1921.
II the city has any right to impose
a fee for the operation of cars, the
fee must not be extortionate and con-
fiscatory, as the $500 per day Is claim
ed to be.
The authority to impose regulations
IL reposed in the Michigan railroad
commission.
On each OF these points the COM
pany IL oyer-ruled, and the court, In
doing SO, goes exhaustively into each
question.
II was contended by the company
that there can be no termination OF
street railway franchise except by the
mutual consent of grantor and grantee,
On this point the court says:
II is difficult to deal In serious
ness with n position SO manifest
ly untenable, and so at variance
at once with right reason and all
established authority. What would
be the effect Of such a rule? II
would nullify the express terms OF
the formal written contract enter
ed into by acceptance Of the grants.
II would extend privileges to
which were attached definite linn
itations of time to the indefinite,
IL not impossible, day when grant
or and grantee would substitute
new arrangement by mutual
agreement. II would ignore the
universal doctrine OF the decisions
that public grants for a specific
term are to be limited to the
time specified, and are to be
scrutinized In the public interest.
Here are grants definite In their
time limit. Their import is so
clear that IL cannot be made clear
er by argument. To state them
is to repel all inference OF indefin-
iteness, and to negative all impli-
cation OF extension, beyond the
plain letter of the grant More
over, the subversion of the public
interest which would accompany