The attorney general shows, by his bill, that on the southerly border of Mackinac Island there is a highway, 100 feet in width, bounded on the south by the waters of the straits, which has been in use by the public for upwards of 50 years. It is further shown that defendant has obstructed said *Page 179 highway by making certain erections thereon. These erections are charged to be public nuisances, and by way of relief he asks to have said erections abated and defendant enjoined from erecting other obstructions.
A motion in the nature of a demurrer was interposed by defendant. The grounds assigned were:
(1) That the Ingham county court is without jurisdiction.
(2) That a court of equity does not have jurisdiction.
(3) That the attorney general is not a proper party to institute the proceeding.
1. The argument is made that the land is located in the county of Mackinac, and, under the rule provided by statute, the case could not be tried in Ingham county. So far as appears by the bill no question of title is involved. The attorney general is asking that an obstruction in a public highway be declared a public nuisance, and an order made to abate it. In the section of the statute which provides that every suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated, there is this proviso:
"And when it may be necessary to file a bill or information, or to commence any proceedings in chancery on the party [part] of or in behalf of the State, the same may, at the election of the attorney general, be commenced in the circuit court for the county of Ingham on the equity side thereof, and said court shall have complete jurisdiction and full power and authority in the premises." 3 Comp. Laws 1915, § 12340.
This proviso fully justified the attorney general in commencing this action to abate a public nuisance in the county of Ingham. McMullen v. Ingham Circuit Judge, 102 Mich. 608.
2. It is insisted that a court of equity is without jurisdiction to entertain a bill to abate a public *Page 180 nuisance in a public highway because a proceeding at law is provided for the use of the highway commissioner to force back fences which encroach upon the highway. We think the following statute answers this objection. Subdivision 1, section 12302, 3 Comp. Laws 1915, provides that equity courts shall have jurisdiction and authority,
"To hear and determine all cases of encroachment upon the public highways, streets or public alleys, in organized townships, incorporated villages, and cities in this State."
It is held that the remedy upon the law side of the court is cumulative. Neal v. Gilmore, 141 Mich. 519.
3. It is argued that the attorney general is not a proper party to institute the proceeding. The nuisance charged here is in a public highway and, therefore, is a public nuisance. It is not a local affair. It affects every one who has a right to travel upon the highway. The attorney general is a public officer and has usually been regarded as the proper officer to institute actions to abate public nuisances.
In Attorney General v. City of Detroit, 71 Mich. 92, where the attorney general sought to restrain removal of the public market, the court held that the attorney general was well within his authority. It was said by Mr. Justice CAMPBELL:
"There can be no doubt of the right and duty of the attorney general to intervene to prevent franchises of a public nature from usurpation or from destruction."
The attorney general in Attorney General v. Board ofAuditors, 73 Mich. 53, sought to restrain an illegal action of the board of auditors in purchasing real estate. Speaking of the authority of the attorney general, Mr. Justice CAMPBELL said:
"But there has never been any rule in equity preventing the attorney general from acting on relation, so long as the grievance is one affecting the public interest, and he retains control of the suit." *Page 181
It was held in Hartingh v. Bay Circuit Judge, 176 Mich. 289 (Ann. Cas. 1915B, 520), that the attorney general is a proper party complainant in equity to prevent the violation of law by village trustees, by the unlawful issuance of licenses to liquor dealers.
It is said in Cyc.:
"The attorney general of a State or the prosecuting attorney of the county or municipality in which a public nuisance exists may proceed in equity in behalf of the people for its abatement, but such a proceeding cannot be brought where the nuisance is a private one." 29 Cyc. p. 1235.
The view expressed in Ruling Case Law is:
"In the case of public nuisances which affect or endanger the public safety or convenience, and require immediate judicial interposition, such as obstructions of highways or navigable waters, the right of the attorney-general to file an information in equity for their abatement is unquestioned. The mere fact that the acts constituting the nuisance are punishable under the criminal law does not work an exception to the rule. Even though a public prosecution of a criminal character may be adopted for the purpose of redressing such a grievance, there can be no reason why the attorney-general may not institute civil proceedings when such are for any reason found to be more convenient and appropriate. Thus it is held that a court of chancery may, at the suit of the attorney-general, enjoin as a common nuisance the maintenance of a place where pools upon horse racing are sold, notwithstanding it may also be a crime; especially where the criminal laws have proved ineffectual to afford relief. To render a nuisance public in character, so as to warrant proceedings on the part of the attorney-general for its abatement, it is not essential that proof of actual injury to the public be adduced, so long as the nature of the acts complained of is such as to tend to the public detriment. Whenever an illegal act is being committed which in its nature tends to injure the public, the attorney-general may maintain an action to restrain its commission without introducing any evidence of actual injury to the public. *Page 182 While the erection of a building above the statutory height permitted in the case of edifices fronting upon a public park, is not a public nuisance in the strict and narrow sense of that term, it is in the nature of one, and an information in equity by the attorney-general is the proper remedy for the enforcement of the public rights infringed as a consequence thereof. In like manner, the attorney-general may by an information in equity restrain the erection of bay windows over a passageway, where the State as original owner has deeded the land bounded by the passageway, but has reserved to itself the right of entry upon the premises to remove all obstructions which may be erected on the premises contrary to the stipulations." 2 R. C. L. p. 923.
"Equity offers a remedy for a public nuisance in the form of proceedings by the attorney-general or other public officer to restrain the unlawful acts in question;" citing, in support thereof, authorities from twelve different States. 20 R. C. L. p. 476.
In Alabama Western R. Co. v. State, ex rel. Attorney General,155 Ala. 491 (46 So. 468, 19 L.R.A. [N. S.] 1173, 16 Ann. Cas. 485), it was held that the attorney general of the State might maintain a bill to abate an obstruction in a certain public street in the city of Birmingham. A motion was made in the trial court to dismiss the bill for want of equity, on the theory that the attorney general was not a proper moving party. Such motion was dismissed, and, in affirming the decree entered for the complainant, the supreme court of Alabama said, in part:
"A public street in a city is a public highway, and its uses belong to the public generally, and it cannot be said that such uses are limited to the municipality or to its citizenship alone. Nor is the authority and power of the municipality over its streets as to the abatement of nuisances exclusive."
But the point is made by Mr. Justice STEERE that no necessity is shown for commencing the case in *Page 183 the Ingham circuit court. This question has never before been raised by this court to my knowledge. It has been heretofore treated as a question of reasonable discretion on the part of the attorney general. The question ought not now to be considered in the instant case, as the point was not raised by counsel. I am of the opinion, however, that the bill shows a necessity, and a public one. It involves a public nuisance in a public highway, in a locality where the State has more than the ordinary interest. The State has a greater property interest on Mackinac Island than any individual. It is the largest landowner on the island. Its land is a public park. The highway in question must be traveled in order to reach the State park. The island is a resort for rest and recreation in the summer season. The chief business of the island is resort business. It is the "Atlantic City" of Michigan, and the State is now engaged in improving it for the benefit and enjoyment of all its people and those of other States who may choose to visit it. Recently the legislature was awakened to the fact that the State with its 1,600 miles of sea coast and innumerable lakes is the natural playground for not only our own people but those residing in the Mississippi valley, and that the tourist trade is worth more than any other industry it has. In keeping with this view the State has recently, through its legislature, adopted the State policy of improving and enlarging the present parks, and creating new ones, for the convenience of our own people, and all the tourists who may visit us in the summer season (Act No. 218, Pub. Acts 1919 [Comp. Laws Supp. 1922, § 396 (1-10)]). A State park commission has been created, and defendant's counsel advised us in his brief that that commission is behind this case to clean up and remove the nuisance in the most prominent public street on the Island. This effort of the attorney general appears to be a State matter commenced for *Page 184 the purpose of abating a public nuisance in a public street near the park, at the instigation of the State park commission to carry out an expressed State policy as declared by the legislature. This appears to me to show necessity sufficient to justify the action of the attorney general.
It is also said that since the Constitution of 1909 was adopted, municipalities have larger rights in their streets. This probably is true, but it has not enlarged the rights or powers of municipal officials to any extent, but has materially increased the right of the people to control franchises in their streets. There is nothing in the constitutional change which restricts in any way the power of the attorney general to attack public nuisances in public places.
To place this restriction on the power of the attorney general to attack public nuisances in public places is not salutary in my judgment, nor is it a move which will promote the public interest. If he may not attack obstructions in the public highway, it must follow that he cannot attack obstructions in the rivers of the State. Such a holding would be contrary to the holding of nearly every State in the Union. For these reasons I am unable to agree with the conclusions reached by Mr. Justice STEERE.
The order of the circuit court of Ingham county should be affirmed.
FELLOWS, J., concurred with BIRD, J. *Page 185