"No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the consent of the duly constituted authority of such city, village or township; nor to transact a local business therein without first obtaining a franchise therefor, from such city, village or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships."

There is nothing in the record to indicate that the common council for the city of Detroit has been asked to except from the provisions of the statute interurban cars.

In 36 Cyc. p. 1458 appears the following:

"As to movement and speed of cars. lt is also within the power of the legislature or municipal government to make reasonable regulations relative to the movements of street cars, as by requiring cars to stop at specified places, such as before crossing intersecting streets; or before reaching a railroad crossing, and not to proceed until it has been ascertained that the way is clear."

In Bly v. Railway, 67 N. H. 474 (32 Atl. 764, 30 L. R. A. 303), the court used the following language:

"The charter does not give the defendants the exclusive use of the portions of streets occupied by their tracks. If it did, there would be ground for inferring that the legislature intended to exempt them from the limitation, for in such case no one could lawfully occupy a position in which he would be exposed to the danger of collision with their cars. The public generally have a right to use those portions of the streets, but in a manner and to an extent modified by the use which the defendants make of them. People may pass across or along the tracks when cars are not passing. The rights of the public and of the defendants are in a great measure common. Middlesex Railroad Co. v. Wakefield, 103 Mass. 261, 263; Concord v. Railroad,

65 N. H. 30, 36 (18 Atl. 87). By the charter, the legislature authorized a new use of streets, which is a source of a new and great danger to other travelers. The driving of cars over steel or iron rails is attended with greater danger to others using the streets than the driving of ordinary vehicles over their uneven surfaces. As cars are heavier than ordinary vehicles, and as there is less resistance to their motion, their momentum is not so easily controlled, and causes more serious consequences when they come in collision with objects. Being confined to a fixed track, they cannot be turned aside to avoid collision. They have a tendency to frighten horses, especially when propelled by steam or electricity. The legislature were aware of these facts, and they are competent evidence upon the question of the legislative intent expressed by the charter. They show that there is greater necessity for limiting the speed of cars than for limiting that of ordinary vehicles. In view of this necessity it is highly improbable that the legislature intended to release the defendants from all restraint as to speed, even temporarily. If the general law does not apply to the defendants, they may drive their cars at any rate of speed, however great, until the mayor and aldermen establish regulations for their government, while a person riding upon horseback or in a carriage cannot drive across, along, or in the vicinity of their tracks at a swifter pace than five miles an hour without subjecting himself to liability to be fined or imprisoned. Such inequality would be arbitrary and unreasonable.

"The speed at which the defendants may drive cars without endangering the safety of other travelers depends somewhat upon the width and character of the streets and the extent and nature of travel over them. Recognizing this fact, and the further fact that the mayor and aldermen, from their knowledge of the streets and travel, are well qualified to judge of the speed allowable within the limits of safety, the legislature delegated to them authority 'to make all such regulations as to rate of speed and the mode of use of the railway as the public safety and convenience may require.' Commonwealth v. Temple, 14 Gray (Mass.), 69, 74. This is in accordance with a policy

adopted in this State when the first street railway charter was granted, and which has been generally adhered to in the enactment of later charters. Laws 1864, chap. 3030, § 5; 1878, chap. 118, § 4; 1881, chap. 251, § 4; 1889, chap. 178, § 3, chap. 218, § 4, chap. 241, § 3; 1891, chap. 258, § 5, chap. 293, § 5; 1893, chap. 250, § 4. "This control is given to these municipal officers, not as representing a conflicting interest, but as independent bodies charged with the duty of protecting the rights and promoting the convenience of the whole public. Union Railway Co. v. Cambridge, 11 Allen (Mass.), 287, 292; Cambridge v. Railroad Co., 10 Allen (Mass.), 50, 57. The legislature intended that the mayor and aldermen should take the subject up where they left it, that is, with the general law in force and applicable to the defendants. If the mayor and aldermen find that no additional or different regulations are required, they need not act; but if they find that the public safety and convenience require that the defendants shall run their cars at a less rate of speed than five miles an hour, or that they shall take precautions of any kind to avoid injury to travelers, they are authorized to make regulations accordingly. After the adoption of regulations, the defendants would be governed by the statute as modified by the regulations. Cooley Const. Lim. p. 198; 1 Dillon, Mun. Corp. § 368; Rogers v. Jones, 1 Wend. (N. Y.) 237; State v. Welch, 36 Conn. 215; State v. Clarke, 54 Mo. 17; State v. Hayes, 61 N. H. 264; School District v. Prentiss, 66 N. H. 145, 146 (19 Atl. 1090)."

The case of Cape May, etc., R. Co. v. City of Cape May, 59 N. J. Law, 404 (36 Atl. 678, 36 L. R. A. 657), involved the violation of an ordinance similar to the one before us. In disposing of the case the court used the following language:

"The power therefore is undoubted to make reasonable regulations to reasonably control the operation of electric street railway cars, within the city, in many respects. Trenton Horse R. Co. v. Trenton. 53 N. J. Law, 132 (20 Atl. 1076, 11 L. R. A. 410). The power to reasonably regulate the operation of these street railways is implied from the authority conferred upon the city council by the city charter.

"The franchise or privilege is granted by the municipality, and a reasonable regulation of the enjoyment of the franchise is not a denial of the right; for corporations which are to be regarded as inhabitants of a city are subject to its ordinances to the same extent as natural persons. The power is a police power, and one which is constantly exercised in prescribing regulations for the good of the community, and such regulations can be enacted by the legislative body of the municipality without notice to the parties who may claim to be interested, provided the regulations are made according to and in the manner prescribed by, the charter of such municipality. The exercise of this power is legislative in its character. Trenton Horse R. Co. v. Trenton, supra; Consolidated Traction Co. v. City of Elizabeth, 58 N. J. Law, 619 (34 Atl. 146, 32 L. R. A. 170); Frankford, etc., R. Co. v. City of Philadelphia,.58 Pa. St. 119; North Hudson County R. Co. v. Mayor, etc., of City of Hoboken, 41 N. J. Law, 71; Booth, St. Ry. Law, § 222.

"Ordinances passed by virtue of an implied power conferred upon municipal corporations must be reasonably consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the State. 1 Dillon, Mun. Corp. (4th Ed.) § 319. There is much discretion left to the municipal corporation in the exercise of their general and implied powers, and the exercise of this authority will not be judicially interfered with unless its exercise has been manifestly unreasonable and oppressive, and is an invasion of private rights. No private right is invaded by the ordinance in question, and the presumption is in favor of its validity. The unreasonableness of the ordinance is not apparent on its face, and the burden of proof is on the prosecutor to show wherein it is arbitrary, unjust or oppressive. Booth, St. Ry. Law, § 224, and cases cited in notes.

"Regulations may be made requiring street railway cars to stop at designated places, in order to accommodate passengers and prevent unnecessary obstructions to public travel, as well as to avoid danger of accidents to others in the ordinary use of the streets and other public places. North Birmingham St. R. Co. v. Calderwood, 89 Ala. 247 (7 South. 360). Street railways are a great public convenience, and they are

to be properly protected in the exercise of their franchise; but they are not entitled to a monopoly of the street, nor even to the exclusive use of that part covered by their tracks. They must exercise their rights in harmony with the rights of the traveling public.

"The ordinance in question is presumed to be a valid ordinance. It does not appear on its face to be unreasonable or oppressive under the circumstances of the case. Neither does it otherwise appear in purpose or effect to be unreasonable. Electric street railway cars can be propelled at a very rapid rate of speed along the streets and over the crossings and intersections thereof, and other public places, with great danger to those using such crossings. In view of these dangers, incident to the operation of this class of street railways, it is incumbent upon the companies owning and operating them to exercise a degree of care and caution to avoid accidents commensurate with the risks involved. This degree of care is a reasonable one in view of the probabilities of danger, and the exercise of this care for the protection of the general traveling public can be enforced by ordinance. A regulation that the cars shall stop at every street before crossing is a reasonable one, which does not interfere with the franchise of the prosecutor, and would appear to be necessary to protect the public from the dangers incident to the crossing.

"The proceedings of the city council and the ordinance must be affirmed with costs."

In the case before us the defendant is found guilty of violating an ordinance of a great city having from three-quarters of a million to a million of people. The trial judge found as a fact that the service at the point indicated was inadequate to properly serve the public. Woodward avenue is one of the great arteries of this large and growing city. The summary of the frequency of the running of the street cars which we have before stated gives some idea of its congested condition. We may well take notice that even more passengers are conveyed up and down and across Woodward avenue in automobiles than find transit in the street cars.