(dissenting). Looking as the various opinions do at too many posed questions, I suggest respectfully that the Court is not concentrating enough attention upon that critically controlling .provision which, since 1933, has denied to the defendant city the exemptive right claimed by its pleaded affirmative defense No. 1, headed “Exemption from regulatory provisions of motor carrier act.” That provision entered the legal picture as section 2, subd (c) of article 5 of PA 1933, No 254. It is cited officially now as CLS 1961, § 479.2, subd (c) (Stat Ann 1965 Cum Supp § 22.567, subd [c]). The controlling question raised by the provision is whether the legislature intended by 2, subd (c) to exempt, from application of the act of 1933, vehicles owned and operated by the defendant city in the course of that which plaintiff would have placed under the - jurisdiction and control of the public service commission.
The parties originally regarded this question as one of controlling importance. Plaintiff stated, and the defendant city accepted, this as the first posed issue:
“Are the operations by the DSP as a common motor carrier of passengers for, hire outside the corporate limits of the city of Detroit subject' to the provisions of the Michigan motor carrier act, *343PA 1933, No 254, as amended (CL 1948 and CLS 1961, § 475.1 et seq., [Stat Ann and Stat Ann 1963 Cum Supp § 22.531 et seq.])?”1
I. agree with plaintiff that the stated question deserves an affirmative answer. If such is the correct answer, then for the purposes of instant judgment it matters not that the defendant city “may in its charter provide” this or that or anything else that may he pertinent to the defendant city’s questioned operations. The right to provide, in a city’s charter, all of the things authorized by the home-rule act is expressly made subject to “such limits as may he prescribed by law” (Const 1963, art 7, § 24) and section 2, subd (c) has, since its effective date, prescribed a specific “limit” which qualifies and conditions the defendant city’s chartered right to “operate transportation lines outside the municipality.”
This does not mean that the defendant city cannot operate at all. See plaintiff’s position on that score, related by the panel below (Northville Coach Lines, Inc. v. City of Detroit, 2 Mich App 591, 595). It does mean, by force of the legislature’s constitutionally applied will, that the defendant city may in the context of this case operate lawfully only after having applied for and obtained the necessary certificate of public convenience and necessity. The reason is that the vehicles operated by it, now in judicial scrutiny, are not exempt from the jurisdiction of the public service commission.
*344To the point of the stated and accepted question above I agree in g*eneral with the reasoning of Justice Kelly. More should be said though, simply to harry and wear down the yet persistent notion of some here that judges of high appellate courts are especially endowed with duty to knead and mold long standing statutes and constitutional provisions so that each new sculpt thereof may conform with contemporaneously digitized view, today’s mores considered, of what the people or their, elected representatives should have enacted into law.
Now I cheerfully admit to being what some of the Brethren regard as a quaint if not stubborn stickler for judicial ascertainment of legislative intent by going back to the laws and usages of the time of enactment, by attempting to place myself as interpreter in the position of the enacting legislators, and by trying to look at things legal and circumstantial as they then were, — -all to divine if possible what those legislators wished understood by lawyers and judges when they employed critically specific words of enactment. The applicable rule of construction appears by separate opinion in Mosier v. Carney, 376 Mich 532, 591, 592; French v. Mitchell, 377 Mich 364, 383; Trbovich v. City of Detroit, 378 Mich 79, 94 and Superx Drugs Corporation v. State Board of Pharmacy, 378 Mich 430, 485. It was approved and applied unanimously on two occasions (Wayne County Board of Road Commissioners v. Wayne County Clerk, 293 Mich 229, 235 and Husted v. Consumers Power Co., 376 Mich 41, 54)2 with source tracing back to Platt v. Union Pacific R. Co., 99 US 48, 63, 64 (25 L ed 424):
*345“There is always a tendency to construe statutes in the light in which they appear when the construction is given. It is easy to he wise after we see the results of experience. * * * But in endeavoring to ascertain what the congress of 1862 intended, we must, as far as possible, place ourselves in the light that congress enjoyed, look at things as they appeared to it, and discover its purpose from the language used in connection with the attending circumstances.”
The exemption provided by 2, subd (c) was intended to apply only to vehicles owned and operated by an incorporated city for governmental purposes. Section 2, subd (c) did not exempt vehicles owned or operated by incorporated cities for nongovernmental purposes. All this, I take it, is conceded. Let us turn then to the legal. circumstances and recorded discourse of 1933 to determine whether the operation of vehicles by cities, as common motor carriers of passengers for hire, was regarded then by the legislature as “for governmental purposes” and, particularly, whether the Supreme Court of Michigan (the Court that was “there” at the time) then would have held that 2, subd (c) should be applied other than according to the decisions cited next.
But first let us array, for demonstrative-comparative view, what each legislator of 1933 held in hand as he pondered voting new 2, subd (c) into effect. Turning to pages 517 and 518 of PA 1931, No 312, we find that the corresponding provision of the statute was then designated as section 13(c). Turning to pages 421 and 422 of PA 1933, we find that each legislator had before him at. the time a measure which in finally adopted fact amended said section 13(c). Here are the two, side by side:
*346 1931 section 13, subd (c)
“‘Sec 13. This act' shall not apply- to: * * *
“(e) 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;”
1933 section Z, subd (c)
“See. 2. Exemptions. This aet shall not apply to:
“(e) Vehicles owned or operated by any incorporated eity, village, or sehool district, or by any county or township in the State or by any corporation, agency or instrumentality of the same, for governmental purposes;”
No member of tbe legislature, engaged during tbe session of 1933 in contemplative thought upon insertion by section 2, subd (c) of the condition “for governmental purposes,” could have mistaken the exact meaning- and legal purpose of that phrase after having read the then unanimous as well as recent cases of Foss v. City of Lansing, 237 Mich 633 (52 ALR 185) ; Borski v. City of Wakefield, 239 Mich 656;3 Powell v. Village of Fenton, 240 Mich 94, Curry v. City of Highland Park, 242 Mich 614, and Johnson v. Board of County Road, Commissioners of Ontonagon County, 253 Mich 465. When lawyers, legislators and judges spoke at the time of a “governmental function” or, synonymously, of a “governmental purpose,” they meant to employ the then widely understood distinction between what was governmental in a municipal- way and what was proprietary in a municipal way. Will someone gainsay this, with some semblance of plausible support?
It was not until recent years that legislators were required to speculate and then guess whether this Court will or will not apply legal words and phrases as the Court has defined and applied them before. Certainly no legislator of 1933 could be.expected to foresee that some here might, more than a generation later, suggest that Borski and the other cases *347cited above really didn’t delineate “governmental” purpose or function for meaningfully dependable usage in the writing of 1933 legislation. Borski proceeded (pp 660, 661):
“It is conceded that in operating a bus line to the Plymouth mine the city of Wakefield was not exercising any political or governmental power, but was engaged in a purely business enterprise for hire.
* * *
“It may be presumed that this was known to the legislature, and therefore it is a reasonable inference that in enacting the statute requiring the presentation of claims as a condition precedent to an action, the legislature did not intend that the city should have the benefit of it while engaged in a strictly private business.”
To conclude:
If the question stated above deserves an affirmative answer, then no other presented question requires discussion. I perceive ahead no great disaster should the defendant city’s mentioned operations be judged subject to the inhibitory and fairly competitive provisions of said section 476.1. And if by that judgment some cloud of catastrophe should gather in the west, the legislature may easily restore 1931 section 13, subd (c). That section, not section 2, subd (c), really did exempt to the extent claimed presently by the defendant city.
Some scholar should be able to tell us, lawyers and judges all, why and for what end the qualifying-words “for governmental purposes” were inserted in the act of 1933, if the precise intent was not to restrict that which by 13, subd (c) was theretofore unrestricted. If the senators and representatives assembled in 1933 didn’t intend to change 13, subd (c) by 2, subd (c), why withal did they make the change we see before us? Perhaps, though, it will *348be said that the quoted qualifying words were inserted idly by pawky gentlemen of that day with expectation that, sooner or later, the judicial branch would “subsume” them, just as was moved for disposition of “reasonable compensation” in French v. Mitchell, supra, at 374 and countered at 378, 383, 385.
I vote to reverse and remand for entry of such judgment as will effectively bring the defendant city’s aforesaid vehicles, and accordingly the presently criticized operation thereof, within the jurisdiction of the public service commission. No costs should be awarded, of course.
Brennan, J., took no part in the decision of this case.“See. 1. Unlawful operation. No common motor carrier of passengers or property shall operate any motor vehicle for the transportation of either persons or property for hire on any public highway in this State except in accordance with the provisions of this act. It shall be unlawful for any common motor carrier of passengers or property to operate upon any public highway without first having obtained from the commission a certificate of public convenience and necessity.” CL 1948, § 476.1 (Stat Ann § 22.534),
Husted was an opinion by the Court, soothingly headed “Per Curiam.” It bears the unrestricted indorsements of remaining Justices Kavanagh, Souris and Adams, plus of course those of Justices Dethmers, Black and O’Hara.
Borski was followed expressly, with copious quotation, in Marks v. City of Battle Creek, 358 Mich 114, 118-120.