Opinion
Docket No. 50777.
Decided May 19, 1982.
Burley, Smiertka, Swank Misko, P.C., for plaintiff.
Marston, Sachs, Nunn, Kates, Kadushin O'Hare, P.C. (by Theodore Sachs and Mary Ellen Gurewitz), for defendant.
Plaintiff, City of Trenton, appeals an order of summary judgment granted in favor of defendant, Wayne County Board of Road Commissioners. This suit arose out of a dispute over plaintiff's authority to impose weight restrictions on West Jefferson Avenue, a county road under defendant's jurisdiction which is located within plaintiff's city limits. On February 20, 1979, plaintiff enacted city ordinance No. 371-57, which placed a 20,000-pound gross weight restriction on the part of West Jefferson that is located within plaintiff's boundaries. Plaintiff subsequently posted signs on West Jefferson which reflected the weight restrictions and established an alternate heavy truck route from West Jefferson to Fort Street within city limits. It is undisputed that plaintiff failed to seek defendant's permission to erect the signs.
Plaintiff's ordinance was enforced through the issuance of traffic citations until July 17, 1979, when defendant's employees removed plaintiff's signs. Plaintiff put the signs up again on July 23, 1979, but they were again removed by defendant. Plaintiff sought declaratory and injunctive relief from defendant's interference with enforcement of the ordinance. Defendant counter-claimed against plaintiff for declaratory and injunctive relief, and a preliminary injunction was issued against plaintiff.
The trial court then granted defendant's motion for summary judgment which was brought pursuant to GCR 1963, 117.2(3). The trial court held:
"[T]he actions of the City of Trenton in having placed and maintained traffic control devices upon West Jefferson Avenue, a county road within the jurisdiction of the defendant County Board of Road Commissioners, without the permission of and over the objection of said road commission, was violative of § 609 of the motor vehicle code, 1949 PA 300; MCL 257.609(b) [MSA 9.2309(b)], and the constitutional authority from which it derives, Const 1963, art 7, § 16 and Const 1963, art 7, § 29."
The trial court's order enjoined plaintiff, pending further order of the court, "from enforcing or attempting to enforce by means of signs, traffic tickets, or by any other means, City of Trenton ordinance 371.57, or any other ordinance regulating the weight of trucks on county roads under the jurisdiction of [defendant]".
MCL 257.609(b); MSA 9.2309(b) (§ 609[b] of the Michigan Vehicle Code) provides in pertinent part: "No local authority shall place or maintain any traffic-control device upon any trunk line highway under the jurisdiction of the state highway commissioner except by the latter's permission or upon any county road without the permission of the county road commission having jurisdiction thereof." (Emphasis supplied.)
Plaintiff contends that § 609(b) is unconstitutional insofar as it is construed to limit plaintiff's authority to enact and enforce a local ordinance regulating weight restrictions on West Jefferson within city limits. Plaintiff argues that, as a home-rule city, under Const 1963, art 7, §§ 22 and 29, it has authority to enact such an ordinance. Sections 22 and 29 provide:
"Sec. 22. Under general laws the electors of each city and village shall have the power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or enacted by the legislature for the government of the city or village. Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law. No enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section.
* * *
"Sec. 29. No person, partnership, association or corporation, public or private, operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any county, township, city or village for wires, poles, pipes, tracks, conduits or other utility facilities, without the consent of the duly constituted authority of the county, township, city or village; or to transact local business therein without first obtaining a franchise from the township, city or village. Except as otherwise provided in this constitution the right of all counties, townships, cities and villages to the reasonable control of their highways, streets, alleys and public places is hereby reserved to such local units of government." (Emphasis supplied.)
Both plaintiff and defendant possess the constitutionally reserved power of reasonable control of highways and streets within their respective city and county limits pursuant to § 29. Furthermore, they possess concurrent authority to impose weight restrictions on highways under their jurisdictions pursuant to § 726 of the Michigan Vehicle Code, MCL 257.726; MSA 9.2426. Section 726 provides, in pertinent part:
"Sec. 726. (1) Local authorities and county road commissions with respect to highways under their jurisdiction, except state trunk line highways, may by ordinance or resolution, prohibit the operation of trucks or other commercial vehicles, or may impose limitations as [to] the weight thereof on designated highways, which prohibitions and limitations shall be designated by appropriate signs placed on such highways."
Under § 609(b) of the Michigan Vehicle Code, MCL 257.609(b); MSA 9.2309(b), plaintiff's placement of signs delineating maximum weights is conditioned upon application for and receipt of permission from defendant. We disagree with plaintiff's contention that this is an unconstitutional limitation on its power to pass and enforce ordinances regulating weight limitations on roads within its jurisdiction. The reasonable control of streets reserved to cities under the constitution is not exclusive control. Cf. Jourdin v City of Flint, 355 Mich. 513, 522; 94 N.W.2d 900 (1959), Allen v State Highway Comm'r, 338 Mich. 407, 415; 61 N.W.2d 625 (1953), Allen v Rogers, 246 Mich. 501, 508; 224 N.W. 632 (1929). Correspondingly, we cannot agree with defendant's contention that defendant exercises ipso facto paramount control over West Jefferson by virtue of its "county" as opposed to "local" status.
Under § 609(b), a county road commission may not arbitrarily withhold from a local authority permission to place or maintain any traffic control device on a county road. In effect, such a reservation would constitute a veto power. Whether a specific grant or denial of permission to post a traffic control device is proper depends upon whether the imposition of the device constitutes an exercise of the constitutionally reserved power of "reasonable control" over highways, streets, alleys and public places. Const 1963, art 7, § 29. In requesting permission pursuant to § 609(b), the local authority must demonstrate that the regulation is reasonable in application to the facts and circumstances of the case. See Fenton Gravel Co, Inc v Village of Fenton, 371 Mich. 358, 366; 123 N.W.2d 763 (1963). Whether a given municipal action constitutes an exercise of reasonable control must be determined on a case-by-case basis. Factors which should be considered include peculiar local conditions, fiscal considerations, safety factors, and the extent to which a particular restriction is consistent with state law. See Fenton Gravel, supra, Dearborn v Sugden Sivier, Inc, 343 Mich. 257; 72 N.W.2d 185 (1955), Brennan v Recorder of City of Detroit, 207 Mich. 35, 38; 173 N.W. 511 (1919). People v McGraw, 184 Mich. 233, 238; 150 N.W. 836 (1915).
In the case at bar, because it is uncontroverted that plaintiff failed to seek the permission of defendant prior to posting the gross weight restrictions, plaintiff's actions constituted a clear violation of § 609(b). Hence, summary judgment in favor of defendant was proper. However, the trial court's order which enjoins plaintiff from enforcing any ordinance regulating the weight of trucks on county roads under defendant's jurisdiction is limited to ordinance 371-57. Regulatory ordinances which constitute "reasonable control" may be enforced upon compliance with § 609(b) as is outlined above.
Affirmed.