Detroit United Railway Company v. City of Detroit/Dissent Hessin Clarke
Mr. Justice CLARKE dissenting.

The relation between the city and the railway company, when the ordinance which the court holds unconstitutional was passed, was this:

The company owned three classes of tracks, viz.:

(a) Those in the business and residence streets most productive of traffic, constituting the greater part of the lines of the company. Its authority to maintain these tracks expired in 1909-1910, and they are disignated in the record as 'non-franchise lines.' It will be convenient to refer to the streets in which these lines are located as 'non-franchise streets.'

(b) Tracks designated as 'three-cent franchise lines' (Exhibit T), also largely in business and important residence streets. The company had franchises for these lines under which it was obliged to sell eight tickets for twenty-five cents good from 5:45 a. m. to 8 o'clock p. m. and six tickets for twenty-five cents good during the remainder of the twenty-four hours. Such tickets entitled the holders to transfer privileges only on all three-cent lines.

(c) Disconnected sections of track, of small mileage, in streets remote from the business parts of the city. For these lines the company had unexpired franchises granted by villages and townships before the extension of the city limits included them, which allowed a fare of five cents, in some places, in others five cents with transportation to the City Hall. The mileage of these grants varied from five miles to 'six blocks' in length; they are described in the bill as lying, some to the north, others to the south, others to the east and others to the west of the city, as it was when the grants were made and, thus widely separated, they had no connection one with the other, except over non-franchise of three-cent franchise tracks. These are designated as 'five-cent franchise lines.'

It was stated at the bar by counsel for the city, and not questioned, that there were about 150 miles of non-franchise lines, about 65 miles of the three-cent franchise lines, and only 55 miles of five-cent franchise lines.

In their brief counsel for the company say that the larger part of the company's lines had been operated for several years prior to December, 1917, on what was known as the 'day-to-day agreement' (and see Detroit United Railway v. Detroit, 229 U.S. 39, 42 33 Sup. Ct. 697, 57 L. Ed. 1056), under which a rental was paid to the city for the use of the streets and the company was allowed to charge a cash fare of five cents or seven tickets for twenty-five cents, except during an hour and a half in the morning and one hour in the evening, when tickets sold eight for twenty-five cents were accepted. For these fares transfers were given over the entire lines of the company. Either party could withdraw from this arrangement at any time, and in December, 1917, the company did withdraw from it and thereafter was allowed to charge, on other than its three-cent franchise lines, a cash fare of five cents, but with eight tickets for twenty-five cents, good for one and a half hours in the morning and for one hour in the evening. Universal transfers were allowed for these fares.

This arrangement continued until August 2, 1918, when, not satisfied, the company proposed to the city a five-cent fare with a charge of one cent for a transfer over all lines in the city one-fare zone, or, in the alternative, a six-cent fare with ten tickets for fifty-five cents and universal transfers, the franchise rates on the three-cent lines to continue, except that for the fares last named universal transfers would be given.

This proposal the city rejected, and thereupon the company, without any authority from the city, put into operation the second proposal above stated, allowing transfers over any connecting or intersecting line within the city limits. In response to this action of the railway company the city passed the ordinance which, for two reasons, the court has held invalid, viz.:

(1) Over certain of the franchise lines a five-cent rate of fare without transfers was provided for in the grants, and because section 4 of the ordinance required transportation 'where the trip is over two or more lines, whether franchise lines or not,' without transfer charge, it is held that, if this provision were enforced, the effect would be to impair such five-cent franchise contracts and that the ordinance is therefore void.

(2) Interpreting the ordinance as a grant to the company of the right to operate its lines, franchise and non-franchise, at rates which the bill alleges to be non-compensatory, the court holds it invalid because it would deprive the company of its property without due process of law.

The case must be considered on the allegations of the bill as if on demurrer and my reasons for dissenting from both of these conclusions of the court are as follows:

As to the first. It is not anywhere alleged in the bill that the 'five-cent franchise lines' (no complaint is made as to the three-cent lines) can be operated separately and profitably or that less income would be realized from them if operated under the terms of section 4 in conjunction with the non-franchise lines than if they were operated as separate properties, if such thing be possible, charging the five-cent franchise rate without transfers. Without such an allegation it is pure conjecture to say that the company would suffer loss and that its contract would be impaired by giving effect to section 4. He who would strike down a law must show that the alleged unconstitutional feature injures him and operates to deprive him of rights protected by the federal Constitution. Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 534, 34 Sup. Ct. 359, 58 L. Ed. 713.

But the bill not only fails to allege that the railway company would suffer loss from giving effect to section 4, but it states facts which render it highly probable, if not entirely clear, that it would benefit by it.

All five-cent franchise lines appear from the bill to be as we have said, outlying, of limited mileage, and so wholly disconnected one from the other that it would not be practicable to operate them profitably, if at all, except in connection with non-franchise lines. The record shows that in the past they have been so operated, with mutual transfers, and both of the proposals of the company made to the city on August 2, 1918, contemplated such operation. In the absence of allegation to the contrary, the reasonable inference from this description of the five-cent franchise lines and this practice with respect to them is, that it is not practicable to operate them profitably as separate properties and that whatever value there is in them must be realized by operating them jointly with the non-franchise lines, with mutual transfers, and that the company would be benefited, and not injured, by being permitted to so operate them under section 4.

But, should this section 4 be construed to prescribe a rate for transfer over franchise lines?

The first section, as printed in the margin of the court's opinion prescribes a charge 'for one continuous trip within the city over any line which is now operated or shall hereafter be operated, without a franchise fixing the rates of fare.'

Clearly this is intended not to apply to the franchise lines.

The second section declares that the charge over franchise lines shall not be greater than is fixed in the franchise.

This plainly contemplates allowing the full franchise rate where one exists.

Section 3 provides for the special or 'workingmen's' tickets, but carefully excepts from its application 'all lines * * * where such sale would be contrary to the terms of the franchise contract.'

'The provisions of this ordinance shall not be construed as      an attempt to impair the obligation of any valid contract,      but shall apply to and govern all such street railway      passenger traffic in the city, except where the same is      governmed by the provisions of such contract.'

Thus we have in the ordinance a declaration that the rate prescribed shall apply only to non-franchise lines, that the franchise rate shall apply on all franchise lines, that special ticket rates shall not apply where they conflict with franchise rates, and in addition there is the general declaration that the city council is intending to deal with non-franchise lines only, and that the ordinance shall not be so construed as to impair franchise contracts.

To this we must add that, it is clear that, excluding the five-cent franchise lines, this section 4 would still have a large and indisputably valid application to both non-franchise and franchise lines. The ordinance was designed to apply to 150 miles of non-franchise lines, extending in all directions throught the city, and to regulate transfers between various parts of these lines. In addition to this, the three-cent franchise lines are greater in extent and much more important than the five-cent franchise lines. From December, 1917, to August 2, 1918, transfers were allowed over all of the non-franchise lines and between the five-cent and three-cent franchise lines and the non-franchise lines upon payment of the fare prescribed in section 4-five-cent fare, or six tickets for twenty-five cents-and it was plainly the primary purpose of the section to continue this rate and practice and not to permit the charge to be increased to six cents, as contemplated in the proposal of the company to the city of August 2, 1918. No complaint is made of the application of the section to the three-cent franchise lines.

All of this is overlooked by the court, and, laying hold of the possible loss to the company (wholly improbable as we have seen) through the application of the section to the five-cent lines, the entire ordinance is struck down as unconstitutional.

This judicial power of declaring laws unconstitutional is of so high and delicate a character that it has been often declared by this court that it would exercise it only in clear cases. Fletcher v. Peck, 6 Cranch, 87, 128, 3 L. Ed. 162; Fairbank v. United States, 181 U.S. 283, 21 Sup. Ct. 648, 45 L. Ed. 862. Every possible presumption is in favor of a statute, and this continues until the contrary is shown beyond a rational doubt. Sinking Fund Cases, 99 U.S. 700, 718, 25 L. Ed. 496. The violation of the Constitution must be 'proved beyond all reasonable doubt.' Ogden v. Saunders, 12 Wheat. 213, 270, 6 L. Ed. 606; Nicol v. Ames, 173 U.S. 509, 515, 19 Sup. Ct. 522, 43 L. Ed. 786.

But if it be assumed that the application of section 4 would result in loss to the company and would impair its five-cent franchise contracts, even then it would seem that the section should be annulled only in so far as it might be applied to such grants and that the remainder, which is not assailed, should be permitted to stand, under the rule of this court applied from Bank of Hamilton v. Dudley, 2 Pet. 492, 526, 7 L. Ed. 496, to St. Louis & Southwestern Ry. Co. v. Arkansas, 235 U.S. 350, 35 Sup. Ct. 99, 59 L. Ed. 265, that if only part of an act be unconstitutional the provisions of that part may be disregarded and full effect given to the remainder, if severable from the unconstitutional part of the act, as it clearly is in this case.

Coming now to the second and more fundamental ground, on which the court proceeds to its conclusion. It is held that the ordinance contemplates the continued operation of the non-franchise lines, and therefore, applying the novel doctrine of the Denver Union Water Company Case, 246 U.S. 178, 38 Sup. Ct. 278, 62 L. Ed. 649, that it is a grant which, if given effect, would necessarily deprive the company of its property without due process of law, since the allegations of the bill are that it would be non-compensatory.

We are now dealing, not with an alleged attempt on the part of the city to require the company to operate its five-cent and its three-cent franchise lines at a loss, but with an offer to it of a right to operate the lines in the non-franchise streets, in which it has no rights, in conjunction with its other lines at what is alleged to be a non-compensatory rate for the entire system. The right of the company to operate the five-cent and three-cent lines was complete without the ordinance and the operation of them, as separate properties, was quite unaffected by it.

In defining the relation between the city and the company as it was before the ordinance, which is declared invalid, was passed, the court holds, as it must (229 U.S. 39, 33 Sup. Ct. 697, 57 L. Ed. 1056), that the company had no rights in the non-franchise streets, and that the city had the right to order its tracks taken out of them.

This being the legal relation between the two parties, the company, on August 2, 1918, made its proposal for increased fares, which was rejected by the city. This proposal, when followed by rejection, obviously did not change the relation of the parties from what they were before it was made.

Thereupon the city made its counterproposal by tendering the ordinance rates to the company, which promptly rejected them. It seems equally clear that this proposal and the rejection of it did not change the relations of the parties and that they continued precisely as they were before and as they were defined in the opinion of the court-the railway company without any rights whatever in the non-franchise streets. But not so says the court, for the reason that the ordinance implies that the lines are to be operated and, under the Denver Case, it must therefore be interpreted as a grant (contary it would seem to Blair v. Chicago, 201 U.S. 400, 463, 26 Sup. Ct. 427, 50 L. Ed. 801), and, since it is alleged that the rates prescribed are non-compensatory, it is an invalid grant.

If it be conceded that the ordinance is in terms a grant, yet since every grant implies and requires a grantee, when the company refused to accept it the grant necessarily failed. It is obvious and elementary that no person or corporation can be made a grantee against his or its will. Kent, Commentaries (13th Ed.) vol. 4, p. 455, note(b). Thus, again, even on the assumption of the court, it would seem that the ordinance failed to change the relations of the parties from what they were before.

The conclusion of the District Court that this case can be distinguished from the Denver Water Company Case, and therefore is not to be ruled by it, seems sound, but the distinction need not be discussed.

The application of the principle of that case to this one must result in depriving the city of the power to treat with the company for terms for the operation of the tracks which it owns in the streets in which its franchises have expired and in which this court has decided it has no rights whatever, except upon terms as favorable to the company as it would be entitled to if it had a valid and continuing grant to operate in them. The utmost that can be claimed for the ordinance is that it suffers the company to use streets which it could not use at all without it-for the company to use them in any other way than as thus permitted would be unlawful. Yet this mere offer of this naked privilege, in terms revocable at will, and rejected by the company, is held to give a constitutional right and at the same time to so violate that right as to render the ordinance invalid. I cannot bring myself to understand how, except by sheer assertion of power, even the apparent justice of the result which it is hoped thus to obtain can be made the basis for creating a constitutional right where no right whatever existed before the passing of this rejected ordinance.

If the management of the company was misinformed as to the effect of the expiring of its franchises, as seems probable (229 U.S. 39, 33 Sup. Ct. 697, 57 L. Ed. 1056), or if it underestimated the difficulties in the way of securing an extension of them, the result, as declared by this court in the case just cited, was to deprive the company of all legal rights in the non-franchise streets, and while its misfortune may be regretted the apparent hardship of the situation is no valid ground for raising a constitutional right in favor of one of the parties, which will result in depriving the other party of an advantage which has lawfully come to it. Substantial justice is more likely to result from trusting to the sense of fairness of a community in dealing with such cases than from imposing upon a city a contract which a court shall make for them. The language used by Mr. Justice Holmes, when dissenting in the Denver Case, 246 U.S. 196, 38 Sup. Ct. 284, 62 L. Ed. 649, is sharply applicable to this case, mutatis mutandis:

'We must assume that the Water Company may be required, within a reasonable time, to remove its      pipes from the streets. Detroit United Railway v. Detroit,      229 U.S. 39, 46 [33 Sup. Ct. 697, 57 L. Ed. 1056]. * * * In      view of that right of the city, which, if exercised, would      make the company's whole plant valueless as such, the      question recurs whether the fixing of any rate by the city      could be said to confiscate property on the ground that the      return was too low. * * * The ordinance of the city could      mean no more than that the company must accept the city's      rates or stop-and as it could be stopped by the city out and      out, the general principle is that it could be stopped unless      a certain price should be paid.'

For the reasons thus stated, I think that the ordinance is valid, and that the judgment of the District Court should be affirmed, and therefore I am compelled to dissent from the opinion and judgment of the court.

I am authorized to say that Mr. Justice HOLMES and Mr. Justice BRANDEIS concur in this opinion. 

Notes