Northville Coach Line, Inc. v. City of Detroit

Souris, J.

(dissenting). The cities of Detroit and Livonia are a bit less than two miles distant from one aiiother. In August of 1964, Detroit’s department of street railways (DSK.) began to operate buses on a route that extends into Livonia fpr' a distance of about two and one-half miles from Detroit’s boundary nearest Livonia. The DSK did not obtain approval from the State’s public service commission for this extension of service.

Northville Coach Lines, Inc., a privately owned corporation, had been operating its buses along the same route, and beyond the point in Livonia where the DSR stops, under authority granted it by the public service commission. Northville brought this suit to enjoin the DSK’s Livonia operations and the Michigan Motor Bus Association was allowed to intervene as a party plaintiff by order of the circuit judge.

At commencement of suit, there was issued and served upon defendant, DSK, an order to show cause-why an injunction should not be entered restraining it from operating its buses into Livonia during the pendency of suit. The circuit judge’s opinion (discloses that judgment of dismissal followed, hearing on the order to show cause. That *335judgment was based upon the circuit judge’s conclusions that the DSR legally could operate its buses within 10 miles from Detroit’s city limits; that it was not subject to regulation by the.public service commission; and that, therefore, plaintiffs were not entitled to the relief they • requested as a matter of law.

The Court of Appeals, by divided vote, reversed the judgment of dismissal and remanded the 'cause to the circuit court for entry of an order granting injunctive relief.1 Northville Coach Lines, Inc., v. City of Detroit (1966), 2 Mich App 591. We granted leave to appeal.

Mr. Justice Kelly has written to affirm the Court of Appeals and to remand the cause to the circuit court for further proceedings. We disagree, believing that the judgment of the Court of Appeals should be reversed and that the circuit court’s judgment of dismissal should be affirmed.

1.

Article 7, § 24 of the Constitution of 1963 provides, pertinently:

“Subject to this Constitution, any city or village may acquire, own or operate, within or without its corporate limits, public service facilities for supplying * * * transportation to the municipality and the inhabitants thereof.'
“Any city or village * * * may operate transportation lines outside the municipality within such limits as may be prescribed by law.”

Our task on this appeal is to determine the constitutionally authorized limitations prescribed by *336law upon a city’s constitutionally granted right to operate transportation lines outside its boundaries.

Detroit is a home-rule city, and its charter2 authorizes the city to operate its buses beyond its city, limits but within a distance of 10 miles from any portion of its corporate limits.

This charter authority is derived from section 4f of the home-rule cities act,3 which reads as follows:

“Sec. 4f. Each city may in its charter provide: # * * ,
“(2) For owning, constructing and operating transportation facilities within its limits, and its adjacent and adjoining suburbs within a distance of 10 miles from any portion of its city limits, if according to the next preceding United States census, or local census taken by authority of a resolution of the legislative body of such city, it had a population not less than 25,000 inhabitants” CLS 1961, § 117.4f (Stat Ann 1963 Cum Supp §5.2079).

The majority opinion of the Court of Appeals, over a vigorous dissent, construed the statutory language “its adjacent and adjoining suburbs” as if the word “adjacent” meant “adjoining” and thereby effectively deleted the word “adjacent” in its interpretation of the quoted phrase. That court’s majority concluded that the statute, therefore, permits a municipality to operate its transportation facilities beyond its borders but only into adjoining suburbs, that is to say, suburbs the boundaries of which touch the boundaries of the municipality providing the transportation services.

*337In common parlance, the word “adjacent” might be regarded to mean the same thing as “adjoining”; i.e., next to, touching, bordering. Webster’s Third International Dictionary,4 as the dissent in the Court of Appeals notes, recognizes “adjacent” to have a permissible meaning of “not distant or far off: nearby but not touching.” Webster’s International Dictionary5 gives the word’s preferred meaning as “lying near, close, or contiguous; neighboring; bordering on; as, a field adjacent to the highway.” The word “adjacent” thus might be taken to mean “adjoining.” Yet to do so is to impute to the legislature a nonsensical purpose when there is available another meaning which is rational. Based on Webster’s definition of “adjacent,” either edition, we can construe the word, rationally, in context, to mean “nearby, but not bordering upon.”

Such an interpretation is entirely consistent with, and draws some support from, the language found in subsection (3) of section 4f of the home-rule cities act. That subsection is quoted in pertinent part in the margin.6 The suggested interpretation is consistent with the quoted language of subsection (3), “and for the operation of transportation lines without the municipality and within 10 miles from its corporate limits.”

*338If judicial support of this interpretation of the word “adjacent” be needed, it can be found in one of our own cases, Henry v. Sinclair (1922), 218 Mich 296. Continental Improvement Co. v. Phelps (1882), 47 Mich 299, suggests a contrary conclusion based upon what the Court called “a very proper concession,” p 303. Perhaps both cases can be reconciled on the basis that they construed the word “adjacent,” paying due regard to the varying context of the word’s use, as I believe we must in the case at bar.

2.

, Mr. Justice Kelly has concluded that the operations of the DSK which are the subject matter of this appeal have not been exempted from the public service commission’s regulatory control either by the provisions of the motor carrier act7 or by the provisions of the act creating the commission.8 We disagree, the legislature having very clearly exempted from the commission’s reach not only all municipally owned utilities, but also all vehicles owned or operated for governmental purposes by municipalities and other subdivisions of government.

-.- Whehthe motor carriers act of 1933 was adopted, the public utilities commission act9 provided, as it had from its inception, in section 4 of the act:

“The power and authority granted by this act shall not extend-to, or include, any power of regulation or control 'of any municipally owned utility; and it shall be ’the duty of said commission on the *339request of any city or village to give advice and render such, assistance as may be reasonable and expedient with respect to the operation of any utility owned and operated by such city or village.”

Thus, there simply cannot be any doubt that in 1933 the public utilities commission had no power to regulate any municipally owned utility. When the motor carrier act was adopted in 1933 the commission was given jurisdiction to regulate the use of the public highways of the State by motor carriers of passengers and property for hire.10 However, that act explicitly exempted from its coverage certain motor vehicles. As originally written, and as it now reads, section 2(e) of article 5 of the act provided:

“Sec. 2. This act shall not apply to: * * * '.
“(c) .Vehicles owned or operated by any incorporated city, village, or school district, or by any county or township in the State or by any corporation, agency or instrumentality of the same, for governmental purposes.”

. Thus, in 1933, not only, did the public utilities commission act exempt from the commission’s jurisdiction municipally owned utilities, the motor carrier act also exempted from the commission’s jurisdiction all vehicles owned by a municipality and operated for governmental purposes. What this Court said about the proprietary nature of a municipally owned transportation system for the purpose of imposing common-law tort liability thereon in Borski v. City of Wakefield (1927), 239 Mich 656, and Marks v. City of Battle Creek (1959), 358 Mich 114, is irrelevant to the issue whether such a mu*340nicipally owned transportation system is operated “for governmental purposes” within the above-quoted exemption provision of the motor carriers act.

This Court has very recently held that our Constitution limits the power of government to such as exhibit a “public purpose.” See City of Gaylord v. Gaylord City Clerk (1966), 378 Mich 273, 294-301, and the mere fact that in tort cases we describe a function of government as proprietary does not imply that it is not performed for a public purpose. In the City of Gaylord Case this Court equated the terms “public purpose” and “governmental purpose” in upholding the validity of legislation authorizing municipalities to issue revenue bonds and to use the proceeds therefrom to purchase industrial facilities for lease and resale to private concerns, the Court having found that such municipal activities are beneficial to the economic welfare of the municipality’s inhabitants and, therefore, constitutionally permissible. Considering this Court’s decision in City of Gaylord, supra, and, as well, Gregory Marina, Inc., v. City of Detroit (1966), 378 Mich 364, it would seem beyond dispute that transporting Detroiters into nearby suburbs to their work and for their recreation and transporting suburban residents into Detroit to their work, for shopping, and for recreation, constitutes a governmental purpose within the meaning of that term as used in the above-quoted exemption provision of the motor carriers act.

That was the statutory situation as it existed in 1939 when the act creating the public service commission and transferring all of the powers and duties of the public utilities commission to it was adopted. That act, PA 1939, No 3, as did the public utilities commission act, continued the express *341exemption of municipally owned utilities in the following apodictic language:

“The Michigan public service commission is hereby vested with complete power and jurisdiction to regulate all public utilities in the State except any municipally owned utility and except as otherwise restricted by law.” CL 1948, § 460.6 (Stat Ann 1965 Cum Supp §22.13 [6]).

It has been suggested that the above-quoted statutory clause, “except as otherwise restricted by law,” modifies the immediately preceding exception, “except any municipally owned utility,” and, presumably, that somewhere else in our statute books can be found a legislative “restriction” upon the municipally owned utility exemption! The fallacy of this suggestion rests not alone upon the absence of any other statutory provision subjecting municipally owned utilities to public service commission regulation, but it rests also upon its significant disregard of the conjunctive “and” between the two statutory exceptions to the grant of complete power and jurisdiction to the commission to regulate all public utilities in the State: “except any municipally owned utility and except as otherwise restricted by law.” Finally, the fallacious suggestion requires that we read the word “restricted” to mean “provided” by law. In short, it is our interpretation of the statute that it grants the commission complete power and jurisdiction to regulate all public utilities in the State, with two exceptions. The first exception is “any municipally owned utility,” and the second exception is left for future legislative determination, “as otherwise restricted by law.”

We hold that the DSR may operate its buses into Livonia, within 10 miles of any Detroit boundary and notwithstanding that Livonia does not ad7 join Detroit;, that such operations of the DSR, in*342side or outside Detroit, are not subject to the provisions of the motor vehicle carrier act nor otherwise subject to the jurisdiction of the public service commission; and, therefore, that the decision of the Court of Appeals should be reversed. We would tax no costs, public questions being involved^

T. M. Kavanagh, J., concurred with Souris, J.

Title 4, chap 13, § 23.

PA 1909, No 279, as amended, CL 1948 and CLS 1961, §117.1 et seq., as amended (Stat Ann 1949 Rev and Stat Ann 1963 Cum Supp § 5.2071 et seq.).

Webster’s Third New International Dictionary (1965), p 26, “adjacent.”

Webster’s International Dictionary (1894), p 21, adjacent.

“Sec. 4f. Bach city in its charter may provide: * * *

“(3) For the purchase and condemnation of private property for any public use or purpose within the scope of its powers; also for the acquirement, ownership, establishment, construction and operation, either within or without its corporate limits, of public utilities for supplying water, light, heat, power and transportation to the municipality and the inhabitants thereof, for domestic, commercial and municipal purposes; * * * and for the operation of transportation lines without the municipality and within 10 miles from its corporate limits.” CLS 1961, § 117.4f (Stat Ann 1963 Cum Supp § 5.2079).

PA 1933, No 254, as amended, CL 1948, § 475.1 et seq., as amended (Stat Ann and Stat Ann 1965 Cum Supp § 22.531 et seq.).

PA 1939, No 3, as amended, CL 1948, § 460.1 et seq., as amended (Stat Ann. 1965 Cum Supp § 22.13[1] et seq.).

,PA 1919, No 419, as amended, CL 1948, § 460.51 et seq., as amended (Stat Ann § 22,1 et seq.) .

Prior acts, PA 1923, No 209 and PA 1931, No 312, likewise had granted such jurisdiction to the public utilities commission. The 1931 act contained exemption language identical to that which. ijiow appears as section 2(c) of article 5 of PA 1933, No 854, but without the final clause “for governmental purposes.”