City of Grand Rapids v. Burlingame ( 1892 )

Per Curiam.

The relator filed in the superior court of Grand Rapids a petition for the condemnation of all the rights of the Grandville Pland-Road Company in certain of the streets and highways of the said city, in the petition described. Summons was issued to the defendant, requiring it to appear and answer. Defendant appeared specially, and on the 21st day of September, 1892, the city attorney moved the court for an order directing the sheriff to write down the names of 24 disinterested freeholders of said city for the purpose of striking a jury therefrom. Defendant company, by its attorneys, filed objections to the court assuming or entertaining jurisdiction of the matter, for the following reasons:

“1. Because Act No. 36, Laws of 1891, under which the proceedings are had, is unconstitutional and void, in that it contravenes section 20, art. 4, of the Constitution of this State, and gives no authority to the petitioner to either purchase or condemn the rights of the company.

“ 2. Because, under the laws of the State, respondent is under obligation to keep and maintain five miles of road, and cannot negotiate for the sale, or sell, any part of its franchise to reduce its length to less than five miles; and it appears by the petition that the respondent only has and maintains five miles of road.

“3. Because the act does not in pterins or by necessary implication repeal the provisions of the law under which respondent is required to keep and maintain five miles of road; and, if respondent should voluntarily sell any portion of its present road or franchises, such sale would effect a forfeiture of its right to take toll on such portion of its road as might remain after such sale."

After hearing these objections the court refused to grant the order to strike the jury.

This is a petition for mandamus to compel the-judge of said superior court to proceed in the matter under said petition in accordance with the terms of the act. The answer admits the facts set up in the petition.

The defendant is a toll-road company, having the right to maintain gates and collect tolls on certain streets and highways of the city of Grand Rapids, and upon a certain highway outside of said city. The portion sought to be condemned is about one-half mile in length within said city limits, leaving it only four and one-half miles of road, which portion is entirely outside of the city. The defendant was organized under the plank-road act of 1851 (Laws of 1851, No. 155). By section 29 of that act (How. Stat. § 3624) it is provided that whenever any plank-road company shall have completed its road, or- any five consecutive miles thereof, the said company may erect toll-gates, and demand and receive tolls. This act was amended by Act No. 122, Laws of 1855, and by Act No. 232, Laws of 1875 (How. Stat. § 3650), by which it was provided that every plank-road company should have the right to receive tolls after it had constructed two consecutive miles of road; provided that the section should apply only to -plank roads during the period in which they were in the process of construction, and not afterwards.

The Legislature, by Act No. 36, Laws of 1891, provided that cities might acquire the rights of plank-road companies in their streets. The act is entitled—

“An act to authorize the cities and townships of this State to acquire by purchase or condemnation all the rights of toll or plank road companies in the streets or highways of such city or township, and to authorize such toll or plank road companies to sell the whole or any portion of its road or franchise to any city or township in which the same may be located, or to any other person or corporation.”

Section 1 of the act permits cities to purchase of the corporation upon such terms as may be agreed between it and the corporation. It is provided by section 2 that—

“In case no agreement can be reached for the purchase of the rights of such toll-road company, said city is authorized to condemn such rights, in which condemnation such city shall proceed as in the condemnation of lands for streets according to the provisions of Act No. 124 of the. Public Acts of 1883, and the acts amendatory thereof, so far as the same are applicable; but the damages to which such company may be entitled shall be paid wholly by said' city.”

Section 3 provides that—

“Any plank-road company organized under any of the laws of this State is hereby authorized to sell the whole or any portion of its road and franchises to any city, township, person, or corporation on such terms as may be mutually agreed upon.”

This act took immediate effect.

Section 20, art. 4, of the Constitution of this State provides that “no law shall embrace more than one object, which shall be expressed in its title.” ,The purpose of the act evidently is to enable cities and townships to acquire, either by purchase or condemnation, the whole or any part of the road beds and franchises of toll or plank road companies within the corporate limits of the city or township. But the act goes further, and provides that any toll or plank road company may sell, not only to cities and townships, but to any ' other corporation or person, any portion or all of its corporate rights and franchises. This latter provision certainly is not germane to the general purpose of the act. It is a distinct and separate purpose. All the means and ends necessary to the accomplishment of the general object would not be objectionable. If the title expresses a general purpose, all matters fairly and reasonably connected with that purpose, and all measures which would facilitate its accomplishment, would not be in conflict with the above provision of the Constitution. This has been so many times decided by this Court that the cases need not be cited. But it cannot be said that power and authority given to toll and plank road companies to sell a portion or the whole of their road-beds and franchises to any other corporation or person is germane to the general purpose of the act, which is to enable cities and townships to acquire them, for the purpose, evidently, of making the roads free from toll within such corporate limits. We think the act open to the objection made,— that it has more than one object.

The court below was not in error in so ruling, and the -mandamus must be denied.

Montgomery, J., did not sit.