The controversy turns primarily upon the power of the city of Detroit over its streets,-whether original, under the constitution of the state, and hence as extensive as it would be in the legislature, or whether not original, but conferred by the legislature, and hence limited by the terms of the delegation.
The first proposition is asserted by the plaintiff in error; the second proposition, by the defendants in error.
The provisions of the constitution which are pertinent to the case are as follows:
'The state shall not be a party to or interested in any work of internal improvement, nor engaged in carrying on any such work, except in the expenditure of grants to the state of land or other property.
'There shall be elected annually on the first Monday of April in each organized township * * * one commissioner of highways * * * and one overseer of highways for each highway district.
'The legislature shall not * * * vacate or alter any road laid out by the commissioners of highways, or any street in any city or village, or in any recorded town plat.
'The legislature may confer upon organized townships, incorporated cities and willages, and upon boards of supervisors of the several counties such powers of a local, legislative and administrative character as they may deem proper.'
The supreme court of Michigan, in its opinion (68 N. W. 304), interprets these provisions adversely to the contention of plaintiff in error, and, reviewing prior cases, declares their harmony with the views expressed. 'The scope of the earlier decisions,' the court said, 'is clearly stated by Mr. Justice Cooley in Board of Park Com'rs v. Common Council of Detroit, 28 Mich. 239. After stating that the opinion in People v. Hurlburt, 24 Mich. 44, had been misapprehended, Justice Cooley said: 'We intended in that case to concede most fully that the state must determine for each of its municipal corporations the powers it should exercise and the capacities it should possess, and that it must also decide what restrictions should be placed upon these, as well to prevent clashing of action and interest in the state as to protect individual corporators against injustice and oppression at the hands of the local majority; and what we said in that case we here repeat,-that while it is a fundamental principle in this state, recognized and perpetuated by express provisions of the constitution, that the people of every hamlet, town, and city of the state are entitled to the benefits of local self-government, the constitution has not pointed out the precise extent of local powers and capacities, but has left them to be determined in each case by the legislative authority of the state, from considerations of general policy, as well as those which pertain to the local benefit and local desires; and in conferring those powers it is not to be disputed that the legislature may give extensive capacity to acquire and hold property for local purposes, or it may confine authority within the narrow bounds; and what it thus confers it may enlarge, restrict, or take away at pleasure."
This decision of the supreme court of Michigan is persuasive, if not authoritative; but, exercising an independent judgment, we think it is a correcti nterpretation of the constitutional provisions. The common council of Detroit therefore had no inherent power to confer the exclusive privilege claimed by the plaintiff in error.
Did it get such power from the legislature? It is contended that it did, by the act under which the Detroit City Railway Company, the predecessor of plaintiff in error, it succeeded. This act is the tram railway it succeeded. This act is the tram-railways act, and at the time of the adoption of the first ordinance, in 1862, section 34 of that act provided that 'all companies or corporations formed for such purposes [the railway purposes mentioned in the act] shall have the exclusive right to use and operate any railways constructed, owned or held by them: provided, that no such company or corporation shall be authorized to construct a railway, under this act, through the streets of any town or city, without the consent of the municipal authorities of such town or city, and under such regulations and upon such terms and conditions as said authorities may from time to time prescribe.' In 1867 the further proviso was added, that after such consent should be given and accepted, such authorities should make no regulations or conditions whereby the rights or franchises so granted should be destroyed or unreasonably impaired, or such company be deprived of the right of constructing, maintaining, and operating such railway.