The Ordinance Is Invalid

THE ORDINANCE IS INVALID

But the Work of Grade Separation is Accomplished

MEANINGLESS VICTORY

Secured in Lansing by Opponents of Grade Separation After it was too Late--Its Meaning Distorted

Judge Weist, of Lansing, has declared the grade separation ordinance of Ann Arbor invalid and enjoined the city from taking any action against it.

This decision does not practically affect the city as there was not action under the ordinance that the city desired to take so that no appeal will be taken from the decision.

Grade separation is an accomplished fact and the only expense to the city of securing grade separation is the costs of this suit brought by Col. Dean and others and amounting to between $100 and $200.

The decision is quite different from what the Times gave as its purport Monday and is not as far reaching importance, as it does make the people "pay dearly" and does not enjoin the city as regards raising tax, etc. As a matter of fact there would have been not expense to the city in any case. The decision does not tear down grade separation. To have proceeded under the state law would have caused the city to pay part, says one-half, of the cost of grade separation. As it is they have paid none of it.

Judge Weist's decision is as follows:

"For many years the Toledo, Ann Arbor & Northern Michigan Railroad has maintained its track through the City of Ann Arbor, crossing city streets at grade. Along this line and upon the streets crossing the track at grade, lands have been improved, houses built and mills and elevators constructed, all conforming to the established grade of the public streets.

"October 1st, 1902, the Common Council of the City of Ann Arbor passed an ordinance changing the course and grade of certain streets and elevating the track of the Ann Arbor railroad.

"The preamble of this ordinance shows the purpose of it to be as follows: 'Whereas, the tracks of the Ann Arbor Railroad company now cross Felch street, Miller avenue, Huron, Washington, Liberty and First streets at grade, and whereas, it would make an easier grade out of the city in both directions and would conduce the general public convenience and safety if the tracks of the said railway were elevated and viaducts provided for the several streets and of such altitude as to enable the public travel on said streets to pass beneath. Therefore, for the purpose of permitting a change of the grade line of the said railroad company's tracks in order to make possible the separation of the street and railway grades, the Common Council of the City of Ann Arbor, ordains.' This ordinance not only provided for the separation of highway and railroad grades but bound the city to pay for a viaduct across Ann street for the benefit of a street railway company. Property holders who will be damaged by this proposed grade separation and who will, if the same is carried out, have a right to recover from the city from time to time the damage caused them, have procured the Attorney General to inform this Court of the passage of the ordinance; of its illegality; and the financial policy pursued or necessary to be pursued by the city if the ordinance is carried into effect, and he has asked that the City of Ann Arbor be restrained from proceeding under such ordinance. 

The proofs show that the established property rights of relators will be materially injured by this proposed grade separation; that they have not consented to the same; that no day in Court has ever been accorded to them and no damages awarded to them for the proposed interference with their property rights; and they claim that if the charter of the City of Ann Arbor ever conferred the power upon the Council to change long established grades as here sought to be done, that act No. 92 of the Public Acts of 1893 has abrogated the power and that since the passage of the general law regulating grade separations the common council has no power to separate highway and railroad grade crossings, especially where the existing crossing has been long established.

"I am of the opinion that this is correct and that the City of Ann Arbor has not the power to pass such an ordinance and carry it into effect.

Attorney General vs. Commissioner of Railroads. 117 Mich. 477.

Schneider vs. Detroit, 77 Mich. 240.

Harper vs. Detroit, 110 Mich. 427.

Phillips vs. Detroit, 120 Mich. 447.

Schulte vs. Frazer, Circuit Judge, decided Oct. 27th, 1903.

"In the last case the City of Detroit was undertaking to separate the grade crossing of Michigan Avenue and the Michigan Central railroad and this would have necessitated the lowering of the present street grade a distance of some nine feet, and would make an excavation in front of the petitioner's premises in that case, and cause them to suffer damage. Schulte filed his bill in the Wayne Circuit and asked for a preliminary injunction to stop the city from proceeding. The Circuit Judge denied the writ and on application to the Supreme Court the following order was made: 'Writ will issue requiring the Circuit Court to allow and issue an injunction restraining the City of Detroit from proceeding to change the grade and perform the work necessary thereto, unless said city shall within then days institute proceedings under the statute, compiled laws, Chapter 102, to determine the amount of damages to the abutting owners or lessees.'

"The financial policy of those in control of city matters has been brought into this case, but the proofs are not as full as could be desired upon the method pursued and it is not essential to the determination of this case that the Court pass upon this question.

"A decree will be entered permanently restraining the City of Ann Arbor from proceeding under the ordinance complained of with costs to the complainants to be taxed."