(dissenting.) The opinion of the circuit judge, in my judgment, in its reasoning and conclusions, is so utterly subversive of the principles of equity that I am unwilling, by my silence, to sanction an apparent, assent to what seems to me to be a most inequitable result. The bill sets forth, in substance, the original street,-railway ordinance of [November 24, 18(52, the incorporation of the Detroit; City Railway Company for 30 years under the tram-railway act, the passage of the ordinance of November 14, 1879; and reciting thafthe railroad company insists on the light, under that ordinance, to operate its railways until 1909, as the basis of the interference of a court of equity, it then alleges that:
“Said ordinance of November 14. 1879, so far as it purports to extend the rights of the Detroit Oily Railway, and enlarge the powers and privileges 'theretofore conferred upon it by said common council beyond the 9th of May, *8961893, was wholly invalid, and not within the power or authority of the common council of said city to grant or confer upon said railway company, and that the legislature has never given the power to said common council to grant such privileges to said company, extending beyond its corporate life, and that the constitution prohibits granting such a privilege.”
The only equity it pleads is contained in its eighteenth and nineteenth paragraphs:
“(18) The right or privilege of maintaining and operating street railways on the streets above mentioned, on which said City Bailway Company con.structed its linos of railway, is of great value; and if your orator was now free to enter into a contract with a company or companies, whereby it might grant such right or privilege to such company or companies, unembarrassed by claims or threats of the said defendants, and especially of said Detroit Citizens’ Street Bailway, your orator might dispose of said right or privilege for a large sum of money, amounting at least to the sum of $1,000,000. (19) * * * xhe common council of said city desired to negotiate for, and if possible to enter into, agreements with a company or companies who may construct and operate street railways on said streets; but your orator can not, by reason of said claims and threats of said defendants, successfully negotiate or enter into' contracts on favorable terms with any company or companies until the rights of your orator and the defendants hereto are. determined, with respect to the time when the privileges granted to the Detroit City Bailway expire.”
The relief prayed is—
“That all rights and privileges under an ordinance of said city passed November 24, 1862, granting to the Detroit Street Bailway the right to construct, maintain, and operate lines of street railway in any of the streets of the city, or under the ordinance amendatory thereof, or supplementary thereto, terminate on the 9th day of May, 1893, and that the right of the city to the control of the streets, and to the granting by it of all rights and privileges of constructing and operating street railways thereon, may be determined, and that the defendants, or any of them, maintaining or operating street railways in said streets, be compelled, by mandatory injunction or decree, to vacate the same, and remove their tracks, immediately after said date, and be perpetually enjoined from maintaining or operating said railways on said streets after said date, except by permission of complainant, and for other and further relief.”
There is no offer in the bill to reimburse or compensate the street-railway companies, or either of them, in whole or part, for the expenditures made by them, or to return the moneys, or any part of the moneys, exacted by the city from the companies by way of taxes in excess of the license fees to which, under the ordinance of 1802, the city was limited, nor is it denied that these expenditures were made, and taxes exacted, in consideration of, and reliance upon, the validity of the ordinance of 1879, and the good faith of the city. Neither is it contended that the street-railway companies, or either of them, have in any particular violated the terms upon which the said city granted the use of the streets for the operation of their railways, or that in the use and enjoyment of which grant the public easement or travel is in any way obstructed or impaired, nor that they have failed in any circumstance or degree to meet the needs, or even the demands, of the public for cheap and rapid transportation. Neither is there any pretense that the complainant was inveigled into granting this easement by fraud, or that the consideration for which it was granted was inadequate. The entire claim and theory of the bill is rested *897on the propositions (1) that the city had no power to grant an easement extending beyond the life of the corporation, and therefore the ordinance of ^November 14, 1879, is void: and (2) that a court of equity has jurisdiction to rescind the grant, decree the right of the grantee terminated, remove the tracks of the defendant from its streets, to the end that the city may make a new and better bargain for their use.
It is conceded that, if the grant in question had been made to a corporation composed of the same individuals, its validity would be unimpeachable in law, as well as in equity.
Accepting, as we must, the truth of all the facts pleaded in the answer, the cause having been heard on bill and answer, there can be no doubt that, had the camplainant’s bill set forth these facts, a demurrer to the bill for want of equity would have raised every question material to the decision of the case. In my view of the admitted facts, therefore, the court is not, in the first instance, concerned with the construction to be given to the powers of the municipality, nor to inquire whether or not it has, in this case, exceeded the strict legal limits of those powers. In what I have to say, I accept as undeniable the statement of the law as to the powers of such corporations as laid down by Dillon on Municipal Corporations, (section 89,) and approved by Judge Grant in Taylor v. Railway Co., 80 Mich. 82, 45 N. W. Rep. 335, that:
‘•Municipal corporations derive ttieir sole sources of power from legislative enactment. The rule has heen long and unquestionably established that municipal corporations are limited to those powers which are granted- — First, in express words; second, necessarily incident to the powers expressly granted; third, those which are essential and indispensable to the declared objects and purposes of the corporation.”
I accept also the rule of construction of legislative grants to corporations, public and private, enunciated in Minturn v. Larue, 23 How. 436—
•‘That only such powers and rights can he exercised under them as are clearly comprehended within the words of the act, or derived therefrom by necessaiy implication, regard being bad to the objects of 1he grant. Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the public.”
"Whether or not. the city, under this rule of construction of its charter and the statute of 1855, under which it acted, proceeded ultra vires, to such an extent as to make its ordinance a mere usurpation of power, is a subordinate question, upon which, I am frank to say, I entirely dissent from the opinion of the circuit judge.
The first and main question is: (1) Does the case made entitle the complainant to the relief prayed in the hill? And the second question, of almost equal importance, is: (2) Conceding that the city exceeded its powers in granting to the railway company an easement in its streets for 30 years from ^November 14, 1879, will a court of equity aid complainant, upon the facts evidenced by the bill and answer?
Does the case made entitle complainant to the relief prayed in the hill?
*8981. This is nominally a suit for equitable relief, and tbe effect of tbe mandatory injunction asked, if granted, will be to practically forfeit and sequester, under tbe forms of law, and in disregard of deliberate and repeated assurances and contracts of tbe complainant, under wbicb it and tbe defendants have acted, tbe property rights and privileges, of immense value, owned by tbe principal defendants, and also tbe valuable dependent property and securities of tbeir mortgages, all of wbicb were confessedly acquired in good faitb, and for valuable considerations, and which, tbe complainant still bolds, without tendering compensation to tbe railway companies for tbeir expenditures and investments, amounting to millions of dollars, or offering to return any part of tbe consideration received by it in taxes and otherwise, aggregating nearly $100,000 more, under tbe very ordinance, and only by virtue of that ordinance, which it now asks tbe court of equity to declare null and void, — an ordinance under wbicb tbe complainant has acted for 14 years, and expressly authorized, and in some cases even required, investments, and exacted tbe taxes thereon. Assuming that the city bad transgressed its powers in making tbe grant in question and that a court of law, were this case within its cognizance, would be compelled to so adjudge, under tbe rigid rules wbicb control its decisions, is it possible, under tbe admitted facts of this case, that a court of equity will shut its eyes to tbe iniquity of tbe demands of tbe complainant? Tbe question should carry its own answer. It is a familiar maxim of equity jurisprudence that “nothing can call forth a court of equity into activity but conscience, good faitb, and reasonable diligence.” Another maxim is that “be who seeks equity must do, or offer to do, equity.” Tbe relief prayed calls for tbe exercise of one of tbe highest powers of a court of equity, aptly termed in Irwin v. Dixion, 9 How. 33, “tbe extraordinary or transcendent power of injunction, and is therefore to be used sparingly, and only in a clear and plain ca.se,” and of Avbicb it is well said in Bonaparte v. Railroad, Baldw. 217, 218:
“There is no power, the exercise of which is more delicate, requires greater caution, deliberation, and sound discretion, or more dangerous, iu a doubtful case. ‘ * * * It is the strong arm of equity, that never ought to be extended, unless to cases of great injury, when courts of law cannot confer an adequate or commensurate remedy iu damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protective, preventive process of injunction; but that will not be awarded in doubtful cases, or new ones not coming within well-established principles, for if it issues erroneously an irreparable injury is inflicted, for which there can be no redress; it being the act of a court, not of a party who prays for it. It will be refused till the courts are satisfied that the case before them is of a right about to be destroyed, irreparably injured, or great and lasting injury about to be done, by an illegal act.”
Whether this bill is to be regarded as one for tbe cancellation of tbe contract of November 14, 1879,.and a bill quia timet, or as invoking equitable interference against a nuisance, tbe principles mentioned, reinforced, as is tbeir application, by tbe avowed objects of tbe bill, its utter lack of allegation or averment of any fact, matter, or thing necessitating equitable interference, and tbe con*899ceded facts, in the face of which we are asked to interfere, are fatal to the maintenance of this suit. If it can be taken as a bill for the cancellation of the contract made by the ordinance of "November 34, 1879, it is a call for the exercise of the highest chancery-power, — a power most frequently exerted in cases of fraud, 'accident, or mistake, which ought never to be exorcised except in a clear case. Atlantic Delaine Co. v. James, 94 U. S. 214; Marble Co. v. Ripley, 10 Wall. 354. In the last case a corporation had bought lands charged by a covenant inseparable from the deed by which the Land was originally conveyed, and which was part of the consideration of a contract made with the vendor. The company, retaining the deed, sought to have the contract rescinded and canceled on the ground that one Ripley, through whom they derived title, had not performed the duties which the contract imposed on him; that though it was, wiien made, intended to operate for the equal benefit of both parties, it had become, in the progress of time, oppressive and burdensome to complainants, or, as they denominated it, unconscionable; that it made them partners with the original grantor and his successors, whether ihey will or not, and that, if corporations cannot enter into partnership, they cannot purchase lands subject to the obligation oí the coming partners, and therefore the contract restrained the alienability of the property. The court said, inter alia:
“The agreement Is inseparable from the deed for the land. They were mode at the sume time, and they are parts ot cue arrangement. What is ashed, therefore, is not to rescind the entire contract, but to strike out a part which has become onerous to one of the parties. It is clear that the rights secured to Ripley by the agreement were a part of the consideration for his grant in ¡lie land, and so it was understood at the time his deed was made. But the deed was an executed conrract; it conveyed the title to the grantee; and if, therefore, the agreement is rescinded by decree oil the courr, the consideration is taken from the vendor after his conveyance has taken effect, and yet, his grant is in force. It is believed Unit such action by a court of equity is quite unprecedented. Tt has been ruled That, when a party seeking to set aside a. conveyance ¡nade by him has received part of the consideration, lie must return it before a court of equity will cancel the conveyance. * “ * Xor is it any reason for rescinding the contract that it has become more burdensome in its operation upon the complainants than was anticipated. If it be, indeed, unequal now, — that is, he unconscionable, --that might possibly bo a reason why a court should refuse to decree its specific performance, but it has nothing to do with the question whether it shall be ordered to be canceled. It is not the province of a court; of equity to undo a bargain because it is hard.”
See, also, Putnam v. Grand Rapids, 58 Mich. 419, 25 N. W. Rep. Rep. 330, which expressly applies this doctrine to the contracts of municipal corporations.
The avowed object of this bill — its only purpose — is to obtain the aid of a court of equity to repudiate tin* complainant’s contract on the ground that, if freed from it, complainant might dispose of such light or privilege for a large sum of money, amounting at least to the smn of $1,000,000. If a more absurd and unconscionable pretense for invoking its plenary jurisdiction was ever presented to a court of equity, the case lias not been cited. There is neither pretense nor allegation that the contract, when *900entered into, was unreasonably hard or unfair,- or that either party so regarded it, or even now avers it has that character; but the right to’ this extraordinary relief is based wholly upon the proposition, not that the contract Avas prohibited by law, but that the authority to make it had not been expressly granted by the legislature. If it be true, as the bill alleges, that this grant was “wholly invalid,” where is the equitable jurisdiction of this court? In Oakland v. Carpentier, 21 Cal. 642, the city of Oakland filed a bill to set aside and cancel a grant made by ordinance of the city to Oarpentier, of the exclusive right and 'privilege, for 37 years, of constructing wharves, piers, and docks at any point within the corporate limits of the toAvn, with the right of collecting wharf-age at such rates as he might deem reasonable. The grant was made in 1852. The suit was brought in 1854 to cancel the grant, and enforce a surrender of the interests and property transferred, or claimed to be transferred, thereby to Carpentier. The grounds alleged for the interposition of equity were that the grant or con-Aeyance was obtained by fraud on the part of Carpentier, and was made without authority on the part of the trustees in Avhorn the municipal powers of the city were vested, and that it constituted a cloud upon the title of the city, and embarrassed her in the exercise of her legitimate functions. The charges of fraud the court found wholly unsustained by the proofs, and thus disposed of the remaining allegations of'the bill on which the city sought relief, in an opinion by Chief Justice Field, now associate justice of the supreme court of the United States:
“Stripped of the charges of fraud, the whole claim for equitable relief falls to the ground. The grant was either valid or void 'or voidable, or if, as contended by counsel for respondents, there can be no occasion for the interference of a court of equity if void, the condition of things — of the rights, privileges, and the estate of the city — remains as though no transfer had been attempted. No cloud is east upon her title, and no embarrassment can attend the exercise of her legitimate functions. She has only to proceed and assert her privileges and claim her interest, and Avhoover interferes with them will be a trespasser. If, hoAvever, the grant is only voidable, and not void, the plaintiff, seeking aid of a court of equity, can only obtain equity by doing equity; that is, she can only obtain relief from the acts of the agents of the town by tendering compensation to the defendant, Avho relied upon them for his expenditures. If they [the ordinances of the board of trustees I are only voidable, that Interference of a court of equity cannot be invoked until equity is done by the party claiming it; that is, by placing, or offering to placo, the party relying upon the acts of the agents of the town in the same position which he would have occupied but for this reliance upon their validity.”
A rebearing was asked in tbis canse, but denied in an opinion by Ohief Justice Cope, wbo had succeeded Chief Justice Field on the latter’s accession to the supreme court of the United States. The necessity of doing equity, as an indispensable condition to the granting of equitable relief, was stated with equal positiveness in the case'of New Orleans v. Steamship Co., 20 Wall. 387, the general features of which are not unlike those of the case at bar, although it is not discolored by the stain of bad faith which marks the latter. The facts in the case Avere that in 1865, during the mili*901tary occupancy of New Orleans by the Union forces, the mayor, the board of finance, and the board of street landings, appointed by the commanding general of the department, pursuant to a resolution passed by said boards, executed, by the command of the mayor, 10 the steamship company, a lease of certain water-front property owned by the city, with the right to inclose and occupy for their exclusive use the demised premises for a term of 10 years, and to bnild ihereon wharves, bulk!leads, buildings, and other improvements, for which the lessee was to pay an annual rent of $8,000 iri monthly installments, and for which it gave its promissory notes, . — 120 in number. The steamship company took possession, and expended over $65,000 in making the improvements specified in the lease, and duly paid its notes as they matured, down to April 11, 1806. On the 18th of March, 3866, the government of the city was handed over by the military authorities to its elective officers. On the 18th of A pill, 1866, the city surveyor, under an order of the city council, approved by the mayor, destroyed the lessee’s inclosure, and did damage to the property amounting to $8,000. To restrain further acts of violence and obtain damages for that done, the lessees filed a bill. The notes for rent given by the company, and unpaid-at the evacuation of the city by the military authorities, were duly delivered to the elected mayor and common council of the city, who had displaced the military mayor and boards. Those unpaid when the bill was filed were held by tbe city then, and for several months afterwards. They were tendered to the company by a supplemental answer, and deposited in court. The city neither tendered back the money paid by the company, nor disclaimed the validity of the payment, nor offered to return the amount, nor any part of it, expended by the company in making the improvements specified in the lease. li, was contended on the part of the city in the court below, and on appeal, that the right's and powers of the military authorities terminated with the cessation of hostilities, and the restoration of business, and that they could not create an interest to last beyond that time, and, too, that no power but the city could alien the rights of the public in property held for its use, and transfer them to an individual or company to the exclusion of the public. The circuit court decreed in favor of the steamship company, and the supreme court of the United Status affirmed the decree. Mr. Justice Swayne, who delivered the opinion, said:
“It lias lieeii strenuously Insisted that the lease was made hy Kennedy without authority, and was therefore void ab initio, and that, if tiiis was not so, its efficacy, upon the principle of the jus post Hminium, wholly ceased when the government of the city was surrendered by the military authorities of the United States to the mayor and council elected under the city charter.”
Holding that the appointment: of Kennedy as mayor, and of tire boards of finance and street landings were valid, and that they were clothed with the powers and duty of their respective positions, and that the lease was within the scope of their authority, though they had no express authority to occupy, he says:
*902“But, conceding this to he so, it is insisted that when the military jurisdiction terminated the lease foil with it. We cannot lake this view of the subject. The question arises whether the instrument was a fair and reasonable exercise of the authority under which it was made. A large amount of money was to be expended, and was expended, by the lessees. The lease was liable to be annulled if the expenditures were not made, and the work done, within the limited time specified. The war might last many years, or it might at any time cease, and the state and city be restored to their normal condition. The improvements to bo made were to the welfare and prosperity of the city. The company had a right to uso them for. only a limited time. * * * When the military authorities retired, the unpaid notes were all handed over to the city. The city took the place of the United States, and became entitled to all their rights under the contract. * * * The' company became hound to the city, in all respects, as it had been before hound to the covenantees in the lease. The city thereafter collected one of the notes subsequently due, and it holds the funds without an offer to return it, while conducting this litigation. It has also to he home in mind that there has been no effort of adjustment touching the lasting and valuable improvements made by the company, nor is there any complaint that the company has failed, in any particular, to fulfill their contract. . We think the lease was a fair and reasonable exercise of the power vested in the military mayor and the two hoards, and the injunction awarded by the court below was properly decreed. The jus post liminium, and the law of nuisance, have no application to the case. We do not intend to impugn the general principles that the contracts of the conqueror, touching things in conquered territory, lose their efficacy when his dominion ceases. NWe decide this case upon its own peculiar circumstances, which are sufficient to take it out of the rule.”
Mr. Justice Hunt, who concurred specially, lield that:
“The reception and holding of the rent is a clear and unqualified act of ratification, which bars the defense of want of authority to execute the lease from which it issued. It is in violation of every principle of honesty and of sound morality that one should retain the benefit of an act of his agent, and at the same time repudiate such act,”
It is to be noted that no express authority to make the lease was conferred upon the military mayor and the hoards, but tbeir action was sustained as within the lines of their duties as civil officers. Mr. Justice Field, who dissented on the ground that when military occupation ceased the property of the city reverted, with the title unimpaired, impliedly admitted that the reception and retention of rent, under the law, ratified it, even though it were the act of unauthorized public agents, but thought that the retention of the proceeds of a single note for $606, paid by the lessees, which was all that the city withheld, “might he justified or explained on the grounds consistent with the repudiation of the lease.” The obligation to do equity as a condition of relief, bere insisted upon, is simply and purely an application of the rule in actions where a contract is sought to be rescinded on the ground of fraud, and nowhere has this wholesome doctrine been more strongly inculcated than in Michigan. Merrill v. Wilson, 66 Mich. 243, 33 N. W. Rep. 716, and cases cited.
But it is argued tha,t the common council exceeded its powers, and that all persons who deal with it are chargeable with notice of the limitations imposed by its charter. The public is exempt from responsibility for the nets of its agents beyond these powers, and no equities can avail the city’s grantee, nor can numberless acts of *903ratification Real defect of authority, or a transgression of the very letter of its charter. This would be true if the contract in question were prohibited by statute, or immoral; but when, as here, there is, at the utmost, only a defect of power, and even though specific performance of the contract might not be enforced, the corporation may be held liable, even at law, on a contract of which it has had the benefit, when it has induced a party, relying on its promise, and in execution of the contract, to spend money and perform his part thereof. This distinction has been frequently recognized and applied. Hitchcock v. Galveston, 96 U. S. 351; State Board of Agriculture v. Citizens’ St. Ry. Co., 47 Ind. 407; Allegheny City v. McClurkan, 14 Pa. St. 81; Railway Co. v. McCarthy, 96 U. S. 258-267; Parkersburg v. Brown, 106 U. S. 487, 503, 1 Sup. Ct. Rep. 442; Chapman v. Douglas Co., 107 U. S. 355, 2 Sup. Ct. Rep. 62; Bank v. Townsend, 139 U. S. 67, 71, 11 Sup. Ct. Rep. 496; East St. Louis v. St. Louis Gaslight, etc., Co., 98 Ill. 415. If a court of law may go to this extent in enforcing the claims of common honesty, can there be doubt üiat a court of equity may mold its decree to the same end under? like conditions? It is conceded that, were the city an individual, its attempt to repudiate its solemn obligations, recognized by it for a period nearly equal to that prescribed by the statute of limitation for bringing real actions, would justly be held wanting in good faith, hut it is said that this rule cannot be enforced against a municipality. Do courts of equity extend immunity to municipal dishonesty? I find no warrant for that doctrine. “The obligation to do justice rests upon all persons, natural or artificial; and, if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.” Marsh v. Fulton Co., 10 Wall. 676; Louisiana v. Wood, 102 U. S. 299; Chapman v. Douglas Co., 107 U. S. 355, 2 Sup. Ct. Rep. 62; Bank v. Townsend, 139 U. S. 75, 11 Sup. Ct. Rep. 496; Clark v. Saline Co., 9 Neb. 516, 4 N. W. Rep. 246.
Or, as put in the vigorous language of Chief Justice Field, in Pimental v. San Francisco, 21 Cal. 362, “where the city, under a void ordinance, sold certain of its property, and retained the proceeds, and, when sued for the amounts, pleaded the invalidity of the ordinance, and sought to escape liability on the ground that the city was under no obligation to respond for the acts of its officers under that ordinance,” the chief justice said:
■‘Tlie city is not exempt from the common obligation to do justice which hinds individuals. Such obligations rest upon sill persons, whether natural or artificial. II the city obtained the money of another by mistake, or without authority of law, it is her duty to refund it, from this general obligation. If she obtained ether property, which does not belong to her, it is her duty to restore it, or to render an equivalent therefor, from ¡he like obligation. Argenti v. San Francisco, 16 Cal. 282. The legal liability springs from the moral duty to make restitution, and we do not appreciate the morality which denies, in such cases, any rights to the individual whoso money or other property has been thus appropriated. The law countenances no such wretched ethics. Its end, always, is to do justice.”
I am unable to perceive any distinction between the morality of retaining money dishonestly acquired, and that involved in denying *904compensation for expenditures and investments made in good faith, on the express request and assurance of the individual or corporation, private or public, which has obtained, and still holds, the benefit of such outlays. Nor is it easy to see the honesty or equity of permitting the municipality to pocket the taxes which it has received under the very ordinance it seeks to repudiate, until the statute of limitations has run against their recovery bv the defrauded party. But it is not true that the law casts upon a party dealing with a municipal corporation all the consequences of a misconstruction of its powers, and leaves him remediless. Where there has been a practical construction of its charter given by the authorities of a municipality and that construction, though of doubtful validity, has been acted upon by it, and rights have grown up under it, the court shall uphold it, in favor of one who has dealt in good faith. Van Hostrup v. Madison, 1 Wall. 297; Chicago v. Sheldon, 9 Wall. 54; Insurance Co. v. Hoge, 21 How. 35, 36; U. S. v. Union Pac. R. Co., 37 Fed. Rep. 551; U. S. v. Hill, 120 U. S. 169, 7 Sup. Ct. Rep. 510; Brown v. State, 5 Colo. 496; Port Huron v. McCall, 46 Mich. 565, 10 N. W. Rep. 23; Cameron v. Bank, 37 Mich. 240.
Upon the theory that the maintenance and operation of the railway in the streets is a public nuisance, the complainant’s case is equally unsustainable. There is no averment or allegation which, under any system of pleading, or by the extremest stretch of liberality, can be tortured into a charge that the defendants’ occupancy of the streets is either a public or a private nuisance, cognizable in equity, or that the right to the relief here asked is predicated on that theory. Whether or not a given use of a highway is a nuisance, is a question of fact, to be tried on apt allegations. “When the highway is not restricted in its dedication to some particular mode of use,” says Judge Cooley, “it is open to all suitable methods; and it cannot be assumed that these will be the same from age to age, or that new means of maldng the Avay useful must be excluded merely because their introduction may tend to the in-i convenience, or even injury, of those who continue to use the road after the same manner as formerly. A highway established for the general benefit of passage and traffic must admit of new methods of use whenever it is found that the general benefit requires them; and if the law should preclude the adaptation of the use to the new methods it would defeat, in a greater or less degree, the purposes for which highways are established.” Macomber v. Nichols, 34 Mich. 216. Again he says, in Railroad v. Heisel, 38 Mich. 66: “A street railway for local purposes, so far from constituting a new burden, is supposed to be permitted, because it constitutes a relief to the street. It is in furtherance of the purpose for which tin; street is established, and relieves the pressure of local travel, instead of constituting an embarrassment.” And Judge Grant, on the same subject, says that “the street railways have become, not only a convenience, but a necessity, to the people.” Railway v. Mills, 85 Mich. 648, 48 N. W. Rep. 1007. They cannot, therefore, be,' per *905se, a nuisance. See, also, Attorney General v. Metropolitan R. R., 125 Mass. 516-518. Indeed, the bill practically admits this, in its lack of averment, and notably in concession that the object sought by the bill is purely the resale of the license to some other corporation, which will pay a larger sum for the privilege now exercised by the defendant. But while admitted that the use of the streets sought to be enjoined is consistent with the public easement of travel, the conclusion is reached that the extension of the easement by the common council being void, as wholly ultra vires the city, the defendants occupancy of the streets with its tracks, aiid in the operation of its railway, being therefore unauthorized by law, it is the province and duty of a court of equity to enjoin such use;. The only authority cited for this conclusion is Denver v. Denver City Ry. Co., 2 Colo. 673. The case cites Davis v. Mayor, 14 N. Y. 525, which, in its turn, cites several authorities holding that the unauthorized obstruction of the public highway is a nuisance,— a proposition which, in the abstract, no one will question. Nor is it denied that, in a proper case, equity will enjoin the continuance of such an obstruction. But in this state it is held that a public nuisance must be something that subjects the public to inconvenience or annoyance. The mere use of the street does not make out the offense. People v. Carpenter, 1 Mich. 273; Clark v. Ice Co., 24 Mich. 508; Attorney General v. Evart Booming Co., 34 Mich. 462; Everett v. City of Marquette, 53 Mich. 450-452, 19 N. W. Rep. 140.
In the latter case the common council had granted complainant a license to construct a railway from the sidewalk down to the basement of his store. Ten years afterwards the council directed the stairway to be removed, and the opening in the sidewalk closed. It was contended on the part of the city that the common council had no power to give permission for the permanent appropriation of any one of the public streets for private purposes. Referring ty the permission granted by the first council, .Judge Cooky said:
“If the permission was effectual for no other purpose, it at least rebutted any presumption, which might otherwise have existed, that this practical appropriation of the street was, per se, a nuisance. If the permission was a mere license, and the snbseunent action of the city council is to be regarded as a revocation of the license*, it does not follow that the plaintiff liad, by the revocation, immediately been converted into a wrongdoer.”
The decree of the court below awarded a perpetual injunction against the city, which the supreme court affirmed. It seems to me impossible to reconcile this case with the conclusion of the circuit judge that the revocation of (lie ordinance of 1879 by that of March 29, 1892, operated to convert the defendants into wrongdoers, and make them amenable to injunction. To warrant the interposition of a court of equity against unauthorized acts, even at the instance of the state, there must he a tangible grievance,— a substantial invasion of the public right. Attorney General v. Metropolitan R. Co., 125 Mass. 516; Brick Co. v. Foster, 115 Mass. 432-438; Attorney General v. Sheffield Gas Consumers’ Co., 3 De Gex, M. & G. 304-320, on appeal 4 Ch. App. 71. It may he said, in *906this connection that it admits of grave doubt whether, in its corporate capacity, the city can maintain this bill, under any conditions, to redress a public grievance. Its standing as complainant in the case, where it sought like relief against the occupation of its streets by'a railroad company, was characterized “as not by any means cleár, upon the authorities.” Detroit v. Detroit, etc., R. Co., 23 Mich. 216. See, also, City of Georgetown v. Alexandria Canal Co., 12 Pet. 97.
2. As a bill quia timet, it must fail. Frost v. Spitley, 121 U. S. 552, 7 Sup. Ct. Rep. 1129. The second question, of almost equal importance, is, conceding that the city exceeded its powers in granting an extension of the easement in its streets for a period beyond the life of the grantee, will a court of equity relieve either party from the contract? Upon this question the case of St. Louis, etc., R. Co. v. Terre Haute, etc., R. Co., 145 U. S. 393, 12 Sup. Ct. Rep. 953, leaves nothing to be said. It is conclusive against the complainant. If, as is claimed, the city acted ultra vires in the extension of the easement, granted to the Detroit City Railway Company, and the latter exceeded its chartered powers in accepting the grant, both are in pari delicto, and can have no relief. If the street railway, by mistaken construction of the city’s charter, is precluded from compensation for its expenditures, and recovery of the sums paid for taxes, as is held by the circuit judge, is the same mistake of law on the part of the municipality to be made a ground for granting it affirmative, relief? The only answer to the case last cited necessarily affirms this strange result, for which I can find no sanction. '
3. The construction given to section 34 óf ihe tram-railway act, (which makes the consent of the municipal authorities the condition precedent to the local exercise of its franchises by a street-railway company,) by which it is interpreted as a limitation of the power upon the city to grant, and of the corporation to receive, the easement in question, seems to me an utter perversion of its purpose. Independent of. that section, and under the powers conferred by its charter, the city could license the use of its streets by such corporations, the privilege being in furtherance of the purpose of the street, although it could not grant an exclusive right. That section has been thus authoritatively construed:
“The purpose of section 34, in allowing street railways,to be organized under it'on such terms as .should be agreed upon, was to enable the roads and the cities to fix upon some equitable standard of local taxation for municipal purposes.” City of Detroit v. Detroit Ry. Co., 76 Mich. 425, 43 N. W. Rep. 447.
This construction of section 34 binds this court. By section 12 of the act of 1855, companies formed thereunder may acquire and sell real and other property for their uses, and the same right is conferred by section 15 of the street-railway act, (chapter 95, 1 IIow. St. p. 911,) which, by section 29, gives to companies formed under the tram-railway act all the rights, powers, and privileges granted by it. It has not been contended that either of these sections disabled such corporations from acquiring the fee of realty, or the ab*907solute title to any oilier property. Had it been the purpose of section 34 to restrict the dealings of the company with the municipality, that intent, would hare been so easy of expression that the absence of a prohibitory or limitation clause is persuasive, per se, that the term as well as the conditions of the easement were committed to the wisdom and integrity of the city authorities, who were vested with the contract power of the city. Putnam v. Grand Rapids, 58 Mich. 419, 25 N. W. Rep. 330. But it is said that, if it be held that the city may grant to a corporation a privilege extending beyond its corporate life, it necessarily follows that it may make a grant in perpetuity. There are several answers to this proposition: si) This case does not involve the power to make a perpetual grant. The question here is whether the extension of the easement for 1(5 years, for the considerations received by the city, was a reasonable exercise of the municipal power. It does not follow from the fact that power is liable to be abused that it does not exist. If the power is abused, the remedy is with the legislature. Wiggins Ferry Co. v. City of East St. Louis, 107 U. S. 367, 2 Sup. Ct. Rep. 257; Gilman v. Philadelphia, 3 Wall. 732. (2) The legislature alone can challenge the propriety of the exercise of the power. It has reserved to itself the power to annul, alter, and repeal both the municipal and the corporate charter. "Whether the city or its grantee have transgressed their organic acts is solely for the si,ate. if the company acquires more property, or a larger estate, than ¡he legislature has authorized it to receive, the other party to the contract cannot object, when the contract has been perfected by extension. Railway Co. v. Mills, 85 Mich. 648, 48 N. W. Rep. 1007, and cases cited; Jones v. Habersham, 107 U. S. 174, 2 Sup. Ct. Rep. 336; California State Tel. Co. v. Alta Tel. Co., 22 Cal. 399.
Another argument for the construction that the grant must be limited to the life of the corporation is that such a construction consists with the policy of the state relative to corporations. It has been aptly said of this argument that the supposed policy of the government with reference to any particular legislation is generally a very uncertain thing, upon which all sorts of opinions, each varying from the other, may be formed by different persons, it is a ground much too unstable upon which to rest the judgment, of the court in i he interpretation of the statutes. Hadden v. Collector, 5 Wall. 111; Railway Co. v. Phelps, 137 U. S. 536, 11 Sup. Ct. Rep. 168. Again it is said that it is not the function of a court of equity to decide, even upon all the facts in the case, whether the contracting question is or is not a reasonable exercise of the municipal power. That, however, was exactly the question decided by the supreme court in New Orleans v. Steamship Co., 20 Wall. 387. There is no legal obstruction to prevent the court from passing on that feature of the case. Is there any practical difficulty attending the solution of the inquiry? It is a mere question of mathematics, —a schoolboy’s problem. , - ,
Given an enterprise, the construction, equipment, and operation of a railway for example, for thirty years,- — the company to furnish *908the funds, and take all the hazards of the business and of remunerative returns, and to pay a prescribed percentage of its gross receipts in return for the license, — is the contract a reasonable one for the grantor of the license, having in mind the amount of the investment required, the equalization of the burdens of municipal taxation among the community, and the increased facilities of cheap transportation? That it may result eventually in large returns to the investors is plainly not a negation of its fairness now. If it fail to prove as remunerative as expected, can the grantee, on that ground, escape his burdens? If acted upon for 14 years, and regarded by both parties as superseding a prior’ contract and defining their relations, and affirmed by one party as the basis of recovery against the other, by successful litigation, there is no principle, consistent with sound morality, that will permit its reasonableness, or even its constitutionality, to be questioned now, at the suit of the grantor, who. seeks, in bad faith, to impugn its own grant. Daniels v. Tearney, 102 U. S. 421. The bill should be dismissed, with costs.