This bill was filed for the purpose of enjoining the enforcement of an ordinance of the city of Detroit, known as the jitneybus ordinance. On the hearing a decree was entered granting the relief prayed for. The defendants have appealed. *Page 400
Section 4 of the ordinance in question reads as follows:
"Every person, persons, firm or corporation operating any jitney shall supply the police department of the city of Detroit with the name, number and address of the owner and driver of and route upon which any jitney shall travel, and make a prompt report showing any change regarding same,Provided, however, jitneys are hereby excluded from operating on Fort street, west, Fort street, east, Michigan avenue, Grand River avenue, Woodward avenue, Gratiot avenue, Jefferson avenue, Cass avenue, John R. street and the parks and boulevards described in chapter 65 of the Compiled Ordinances of 1920."
The plaintiffs attack the validity of the proviso of this section of the ordinance, first, on the ground that it is unreasonable, oppressive, arbitrary and ultra vires. In respect to this claim the defendants contend that the reasonableness of the ordinance is not a subject for judicial review, because the city has power to absolutely prohibit the use of its streets to jitney service, and having such power the reasonableness of any restricted use it may grant is exclusively a question for the legislative branch of the city government. Counsel for both sides of this controversy in very able briefs have devoted much space to a discussion of the power of the city to entirely withhold the use of its streets by jitneys. As we view it, that question is not in this case. The ordinance does not prohibit. It grants them the use of the streets. The title reads:
"An ordinance to license and regulate jitneys, so called, and to provide the conditions under which they may be operated on the streets, avenues and public places of the city of Detroit; providing for the rate of fare that may be charged and providing a penalty for the violation thereof."
It licenses, regulates, and controls, and when it does so such regulation and control should be reasonable. *Page 401 Assuming, but not deciding, that the city has power to prohibit, when, as in this case, it does not exercise that power, but permits them to use the streets subject to certain restrictions, the restriction so imposed must be reasonable. Its only right to control is a reasonable control, and this right it derives from the Constitution. In article 8, § 28, it is said:
"The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships."
Referring to this constitutional provision this court said inMelconian v. City of Grand Rapids, 218 Mich. 397:
"The only restriction on the control which the city may exercise over its streets under the constitutional provision is that it must be reasonable."
The constitutional provision to which we have referred places a definite limitation upon the power of the city council to legislate on the subject of the use and control of the streets. Whether in so legislating the council has regarded or ignored that limitation is a question for judicial review.People v. Gibbs, 186 Mich. 127 (Ann. Cas. 1917B, 830); AttorneyGeneral v. Lindsay, 178 Mich. 524; City of Kalamazoo v.Kalamazoo Circuit Judge, 200 Mich. 146.
This brings us to the real question in the case, viz., Is the proviso of section 4 reasonable in excluding jitney service from so many of the most extensively traveled streets? In considering this question, we should have regard to the transportation facilities and traffic conditions at the time of the enactment of the ordinance showing the necessity for it, its effect upon the public welfare, and the object sought to be accomplished by it. The ordinance should bear some reasonable and substantial relation to these conditions. The *Page 402 streets are for the use of the people, and the purpose of any restriction placed upon their use should be for the benefit and accommodation or safety of the public. The object of all legislation should be the public welfare. So that in determining the reasonableness of this provision of the ordinance, it is important to consider how it affects the public welfare. The ordinance in question is an amendment of a former ordinance under which jitneys had been operating for some time in the streets of the city of Detroit. They were evidently recognized as a public necessity, or at least as an aid in improving to some extent the wholly inadequate transportation facilities then in use. The situation which existed then, and now exists, is thus expressed by the circuit judge in his opinion:
"This wonder city, doubling its population every decade, has outstripped its transportation facilities and commissioners, committees and individuals, some legally appointed and others voluntarily contributing thereto, have investigated and reported and others are now re-investigating this problem. The pulpit, the platform, the press, each has been a forum for traffic solution propaganda."
In view of these conditions it cannot be said that, in so far as it affected their means of transportation, it was a benefit to the people of Detroit to exclude the jitney service from the streets mentioned in section 4 of the ordinance. They needed more service, not less. Nor do we think it was necessary in the interests of the public safety. Any of the known agencies of public transportation over the streets of large cities is dangerous. Properly safeguarded in its use, the automobile is no more dangerous than the street car or the motor bus. It is true that poor equipment and the handling of such vehicles by inexperienced and reckless drivers is fraught with danger to the public, but these dangers are sufficiently *Page 403 and properly safeguarded by the ordinance. To entirely exclude them from those streets where the travel was greatest seems not to have been necessary for the public safety. The ease and safety in moving traffic in congested districts does not depend upon the number of vehicles in the street, but upon the methods employed. The safest place on a city street is where the modern traffic rules are enforced, and this regardless of the density of the traffic. Any man who has observed the manner of handling traffic in the downtown sections of large cities will indorse the conclusions of the witness, Mr. Schaab, who testifying in this case said:
"If a man drives safely he is no more in a hazardous position in the downtown district than in any other district where there is less traffic. I would say the greatest number of accidents occur in districts where there is no policeman in charge of traffic. Proper regulations would prevent the number of accidents. In the downtown sections they have a regular stop signal on the towers that is worked automatically all the way up Woodward avenue, at one time. * * * There are three lights on the towers, green to go, yellow to clear, and red to stop."
From this it would appear that there was no necessity in the interests of public safety to exclude jitney automobiles from the streets designated in section 4 of the ordinance. In discussing this phase of the case, we are not considering the motive which brought about the enactment of this ordinance. With that we are not concerned. But the object sought to be attained and its effect upon the public welfare is a proper subject for inquiry.
This ordinance is unusual in that, presumably to better the public service, it licenses jitneys to operate in the city, and then excludes them from all of the main arteries of travel where there is the greatest *Page 404 public need for them. We quote from the brief of counsel for the plaintiffs:
"It excludes from the operation of the ordinance the privilege of running jitneys upon 'Fort street, west, Fort street, east, Michigan avenue, Grand River avenue, Woodward avenue, Gratiot avenue, Jefferson avenue, Cass avenue, John R. street and the parks and boulevards described in the Compiled Ordinances of 1920.' Referring to chapter 65 of the Compiled Ordinances of 1920, we find that the boulevards described therein include: Grand Boulevard, east and west, Lafayette Boulevard, Boston Boulevard, Chicago Boulevard, Arden Park, La Salle Boulevard, Washington Boulevard, Second Boulevard and Dexter Boulevard."
If the jitneys are expected to render any considerable public service, and that is why they are licensed, it cannot be done if they are not allowed to go upon the excluded streets. It is well known that most of these streets are the main arteries of traffic and radiate from the business center of the city like the spokes of a wheel, and because of this it is impracticable to substitute other routes. One of the witnesses for the city suggested some substitute routes to which counsel for the plaintiffs makes the following objections, in which the situation seems to be correctly stated:
"They are not extended over any main, trunk-line highway or thoroughfare; they intersect 'through streets' time and time without number; the Grand River route, so-called, crosses Grand River avenue in a zig-zag course six different times, and at one point along this substitute route a passenger desiring to 'go out' Grand River avenue would find himself over two miles from that highway; the streets over which these routes extend are poorly paved, badly lighted and in many instances lined with shade trees which shed their leaves in autumn upon slippery block pavements, never intended for traffic of this character; they are not only inconvenient but dangerous; no one, desiring *Page 405 rapid transit, could be induced to become a passenger over them; they do not run into the center of the city; they twist and turn their way in such a manner that it would require the expert services of a civil engineer to assist a prospective passenger to his destination."
A reading of this ordinance with reference to the traffic conditions existing in the city of Detroit at the time of its enactment fails to disclose any possible benefit to the public by excluding jitney cars from the streets designated in section 4. The great need of the people was for more transportation facilities instead of less. The jitney service now conducted with the various safeguards provided by the ordinance is a safe, convenient and comparatively rapid method of transporting people from one point to another in the city. The testimony shows that they need the service. The ordinance reduces it. Beyond question, its enforcement will not operate for the public benefit. It will be to the detriment of the people to the extent that it deprives them of transportation which they so much need, and which the city is required to furnish.
In view of the inadequacy of the transportation facilities in the city of Detroit, and considered in its relation to the public welfare, we are of the opinion that the proviso of section 4 of this ordinance is so unreasonable as to be beyond the police power of the city to enact, and is therefor void. In all other respects it is valid.
No other questions require discussion.
The decree of the circuit court should be affirmed, with costs to the plaintiffs.
BIRD, C.J., and WIEST, J., concurred with McDONALD, J.