law erty. 7. Subjecting a street railway company whose franchises have expired, to the alternative of accepting an inadequate price for its property, or of ceasing to operate in the city streets, and removing its property therefrom, does not take property with out due process of law, where the city has the right to require such cessation and removal, and no purchase can be effected without approval by the city electors. [For other cases, see Constitutional Law, IV. b, 4, in Digest Sup. Ct. 1908.] relation to legislative depart- ment -mo 8. The motives of city officials and of the electors of the city, acting upon an ordinance proposing municipal acquisition or construction of a street railway system, are not the subject of judicial inquiry in a suit by a street railway company to enjoin the establishment of the municipal system and an issue of bonds for the purpose, so long as the means adopted for submission of the question to the voters conformed to the requirements of the law. [For other cases, see Courts, I. e. 3, a; Bonds, V. d, in Digest Sup. Ct. 1908.] Municipal corporations acquiring and owning street railway bond issue validity of election authorizing. 9. Official misinformation given to electors of a city in advance of a vote upon a proposition for the municipal acquisition or ownership of a street railway system, and an issue of bonds for the purpose, cannot, there being no complaint before the election, vitiate such election if the same was had upon a submission within the authority of the city under its charter, and the form of submission was in substantial compliance with the law. [For other cases, see Bonds, V. d: Municipal Corporations, II. f, in Digest Sup. Ct. 1908.] [No. 492.] Cuyahoga River Power Co. v. Akron, 240 U. S. 462, 60 L. ed. 743, 36 Sup. Ct. Rep. 246 U. S. 178, 62 L. ed. 649, P.U.R. 402; Denver v. Denver Union Water Co. 1918C, 640, 38 Sup. Ct. Rep. 278; Cincinnati v. Cincinnati & H. Traction Co. 245 U. S. 446, 62 L. ed. 389, 38 Sup. Ct. Rep. 153; Detroit United R. Co. v. Detroit, 248 U. S. 429, 63 L. ed. 341, P.U.R.1919A, 929, 39 Sup. Ct. Rep. 151. Nor can it be said that the motion to affirm should be granted in the view that the case presented is so clearly without merit that no further argument is required. Detroit United R. Co. v. Detroit, 229 U. S. 39, 57 L. ed. 1056, 33 Sup. Ct. Rep. 697; Denver v. Denver Union Water Co. 246 U. S. 178, 190, 62 L. ed. 649, 660, P.U.R.1918C, 640, 38 Sup. Ct. Rep. 278; Detroit United R. Co. v. Detroit, 248 U. S. 429, 63 L. ed. 341, P.U.R.1919A, 929, 39 Sup. Ct. Rep. 151; Essex v. New England Teleg. Co. 239 U. S. 313, 321, 60 L. ed. 301, 306, 36 Sup. Ct. Rep. 102; Ramsdell v. Maxdell, 32 Mich. 285; Home Teleph. & Teleg. Co. v. Los Angeles, 227 U. S. 278, 287, 57 L. ed. 510, 515, 33 Sup. Ct. Rep. 312. Messrs. Elliott G. Stevenson, John C. M. Hally, and Hinton E. Spalding also Donnelly, William L. Carpenter, P. J. filed a brief for appellant: When a bill of complaint shows that, either pursuant to an invalid statute or ordinance, or under color, but in excess of, the powers conferred either by statute, ordinance, or other state authority, action is taken or threatened to deprive the complainant of contract or property rights in contravention of the Federal Constitution, a Federal question is presented unless it plainly appears that such averment is not real and substantial, but Argued January 5 and 6, 1921. Decided is without color of merit. Such a ques February 28, 1921. The facts are stated in the opinion. Mr. Charles E. Hughes argued the cause and filed a brief for appellant: It is manifest that the motion to affirm cannot be granted in the view that the district court was without jurisdiction. Home Teleph. & Teleg. Co. v. Los Angeles, 227 U. S. 278, 287, 288, 57 L. ed. 510, 515, 33 Sup. Ct. Rep. 312; tion being presented, the United States court has jurisdiction to determine the entire controversy, including all questions, whether Federal or not, and irrespective of how the Federal question is decided, or whether it is decided at all. Siler v. Louisville & N. R. Co. 213 U. S. 175, 53 L. ed. 753, 29 Sup. Ct. Rep. 451; Home Teleph. & Teleg. Co. v. Los Angeles, 227 U. S. 278, 57 L. ed. 510, 33 Sup. Ct. Rep. 312; Cuyahoga River Power Co. v. Akron, 240 U. S. 462, 60 L. ed. 743, 36 Sup. Ct. Rep. 402; Green v. Louisville & Interurban R. Co. 244 U. S. 499, 61 L. ed. 1280, 37 Sup. Ct. Rep. 673, Ann. Cas. 1917E, 88; Cincinnati v. Cincinnati & H. Traction Co. 245 U. S. 446, 62 L. ed. 389, 38 Sup. Ct. Rep. 153. The proposition to acquire the street railway system was not so submitted to the voters that their affirmative vote thereon authorized such acquisition. Black v. Detroit, 119 Mich. 571, 78 N. W. 660; 2 Pom. Eq. Jur. 4th ed. 848; Ludington v. Patton, 111 Wis. 208, 86 N. W. 571; DeBearn v. Winans, 111 Md. 434, 74 Atl. 626; Tompkins v. Hollister, 60 Mich. 470, 27 N. W. 651; Carpenter v. Detroit Forging Co. 191 Mich. 53, 157 N. W. 374; Stephens v. Collison, 249 Ill. 225, 94 N. E. 664; Hall v. Otterson, 52 N. J. Eq. 522, 28 Atl. 907; 2 Dill. Mun. Corp. 4th ed. § 891; Bozeman v. Sweet, C. F. & Co. 158 C. C. A. 434, 246 Fed. 370; O'Beirne v. Elgin, 187 Ill. App. 581; Beers v. Watertown, 43 S. D. 14, 177 N. W. 502. The scheme of acquisition, of which the proposition voted on is a part, involves in fact an attempt to deprive plaintiff of its property without due process of law. Peck v. Detroit United R. Co. 180 Mich. 343, 146 N. W. 977; Denver v. Denver Union Water Co. 246 U. S. 178, 62 L. ed. 649, P.U.R.1918C, 640, 38 Sup. Ct. Rep. 278; Detroit United R. Co. v. Detroit, 248 U. S. 429, 63 L. ed. 341, P.U.R.1919A, 929, 39 Sup. Ct. Rep. 151; Ramsdell v. Maxdell, 32 Mich. 285; Barton v. Beatty, 28 N. J. Eq. 412; City R. Co. v. Citizens' Street R. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Rep. 653; Essex v. New England Teleg. Co. 239 U. S. 313, 60 L. ed. 301, 36 Sup. Ct. Rep. 102; Eau Claire Improv. Co. v. Eau Claire, 172 Wis. 240, 179 N. W. 2; Louisville Trust Co. v. Cincinnati, 22 C. C. A. 334, 47 U. S. App. 36, 76 Fed. 296; Cuyahoga River Power Co. v. Akron, 240 U. S. 462, 60 L. ed. 743, 36 Sup. Ct. Rep. 402; Cincinnati v. Cincinnati & H. Traction Co. 245 U. S. 446, 62 L. ed. 389, 38 Sup. Ct. Rep. 153; Fillman v. Ryon, 168 Pa. 484, 32 Atl. 89; Marlatte v. Weickgenant, 147 Mich. 266, 110 N. W. 1061; Morse v. Woodworth, 155 Mass. 233, 27 N. E. 1010, 29 N. E. 525; Adams v. Irving Nat. Bank, 116 N. Y. 606, 6 L.R.A. 491, 15 Am. St. Rep. 447, 23 N. E. 7; City Nat. Bank v. Kusworm, 88 Wis. 188, 26 L.R.A. 48, 43 Am. St. Rep. 880, 59 N. W. 564; Silsbee v. Webber, 171 Mass. 378, 50 N. E. 555. Messrs. Clarence E. Wilcox and Alfred Lucking argued the cause and filed a brief for appellees: Good faith is not enough to give jurisdiction, but there must be a really substantial question about which open minds could differ. Newburyport Water Co. v. Newburyport, 193 U. S. 561, 576, 579, 48 L. ed. 795, 799, 800, 24 Sup. Ct. Rep. 553; Harris v. Rosenberger, 13 L.R.A. (N.S.) 762, 76 C. C. A. 225, 145 Fed. 449; Underground R. Co. v. New York, 193 U. S. 416, 48 L. ed. 733, 24 Sup. Ct. Rep. 494. The city has a perfect right to make an offer to the railway company of a certain price for its tracks and equipment, and, in default of acceptance, to ask it to remove its property, and such course is not a taking of property without due process. Denver v. New York Trust Co. 229 U. S. 123, 57 L. ed. 1101, 33 Sup. Ct. Rep. 657; Newburyport Water Co. v. Newburyport, 193 U. S. 561, 48 L. ed. 795, 24 Sup. Ct. Rep. 553. Evil motives in exercising legal powers by public officials will not vitiate the act, nor will they be inquired into by the judiciary. McCray v. United States, 195 U. S. 27, 54-56, 49 L. ed. 78, 95, 96, 24 Sup. Ct. Rep. 769, 1 Ann. Cas. 561; People v. Gardner, 143 Mich. 104, 106 N. W. 541; People v. Gibbs, 186 Mich. 127, 152 N. W. 1053, Ann. Cas. 1917B, 830; Doyle v. Continental Ins. Co. 94 U. S. 541, 542, 24 L. ed. 151, 152. The temporary arrangements do not affect fundamental rights. Detroit v. Detroit United R. Co. 173 Mich. 321, 139 N. W. 56, 242 U. S. 253, 254, 61 L. ed. 275, 276, P.U.R.1917B, 1010, 37 Sup. Ct. Rep. 87. The city authorities having no power to grant directly rights in the streets except those revocable at will cannot do so by indirection. Having no power to grant the same by express act, none such may be implied. Eaton v. Shiawassee County, 134 C. C. A. 316, 218 Fed. 588; Litchfield v. Ballou, 114 U. S. 190, 193, 29 L. ed. 132, 133, 5 Sup. Ct. Rep. 820; Hedges v. Dixon County, 150 U. S. 182, 37 L. ed. 1044, 14 Sup. Ct. Rep. 71; Niles Waterworks v. Niles, 59 Mich. 311, 26 N. W. 525; Detroit v. Robinson, 38 Mich. 108; Spitzer v. Blanchard, 82 Mich. 216, 46 N. W. 400; McCurdy v. Shiawassee County, 154 Mich. 550, 118 N. W. 625. Cases like City R. Co. v. Citizens' Street R. Co. 166 U. S. 567, 41 L. ed. 1114, 17 Sup. Ct. Rep. 653; Essex v. New England Teleg. Co. 239 U. S. 313, 60 L. ed. 301, 36 Sup. Ct. Rep. 102, have no application where there is a constitutional provision forbidding the common council to exercise any such power or make any such grant. They are only applicable where the common council had the authority originally to make the grant which the court held the city was estopped to deny. Hagerstown v. Hagerstown R. Co. 7 A.L.R. 1248, note; First Nat. Bank v. Emmetsburg, L.R.A.1915A, 994, note; Parkersberg v. Brown, 106 U. S. 487, 501, 27 L. ed. 238, 1 Sup. Ct. Rep. 442; Dixon County v. Field, 111 U. S. 83, 92, 28 L. ed. 360, 363, 4 Sup. Ct. Rep. 315; Lake County v. Graham, 130 U. S. 674, 683, 32 L. ed. 1065, 1068, 9 Sup. Ct. Rep. 654; Eddy Valve Co. v. Crown Point, 166 Ind. 613, 3 L.R.A. (N.S.) 689, 76 N. E. 536; State ex rel. St. Louis Underground Service Co. v. Murphy, 134 Mo. 548, 34 L.R.A. 369, 56 Am. St. Rep. 515, 31 S. W. 784, 34 S. W. 51, 35 S. W. 1132; Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 91 N. W. 1081. Where a vote of the people is required as a condition to the validity of a grant, any such grant, formal or informal, without the vote, is void, and no estoppel can be raised against the municipality, either by lapse of time or receipt of benefits, or any negotiation whatsoever. Hagerman v. Hagerman, 19 N. M. 118, L.R.A.1915A, 904, 141 Pac. 613; Eaton v. Shiawassee County, 134 C. C. A. 316, 218 Fed. 588; Salt Creek Twp. v. King Iron Bridge & Mfg. Co. 51 Kan. 520, 33 Pac. 303; Wormstead v. Lynn, 184 Mass. 425, 68 N. E. 841; Daniels v. Long, 111 Mich. 562, 69 N. W. 1112; Smith v. Newburgh, 77 N. Y. 136; Lynchberg & D. R. Co. v. Person County, 109 N. C. 159, 13 S. E. 783; Defiance v. Defiance, 13-23 Ohio C. C. 96; State v. Pullman, 23 Wash. 583, 83 Am. St. Rep. 836, 63 Pac. 265; First Nat. Bank v. Emmetsburg, L.R.A.1915A, p. 998, note. The railway company took no action except with eyes wide open, and did nothing on the faith of any action or representation of the people. Crane v. Reeder, 25 Mich. 303; Fletcher v. Aldrich, 81 Mich. 186, 45 N. W. 641; 2 Pom. Eq. 4th ed. § 805. The right claimed by the appellant here is itself a franchise, and it, beyond any dispute, is not a franchise revocable at will. Therefore, it conflicts with the plain constitutional provision. Greenwood v. Union Freight R. Co. 105 U. S. 13, 26 L. ed. 961; Newport & C. Bridge Co. v. United States, 105 U. S. 470, 26 L. ed. 1143; Hamilton Gaslight & Coke Co. v. Hamilton, 146 U. S. 258, 36 L. ed. 963, 13 Sup. Ct. Rep. 90; Calder v. Michigan, 218 U. S. 591, 54 L. ed. 1163, 31 Sup. Ct. Rep. 122; Peck v. Detroit United R. Co. 180 Mich. 347, 146 N. W. 977. All that is necessary to be put upon the ballot is a clear identification of the proposed law or ordinance to be voted upon, and sufficient to show its character and purpose. State ex rel. Thompson v. Winnett, 78 Neb. 379, 10 L.R.A.(N.S.) 149, 110 N. W. 1113, 15 Ann. Cas. 781; Kiernan v. Portland, 57 Or. 454, 37 L.R.A. (N.S.) 332, 111 Pac. 379, 112 Pac. 402; State ex rel. Wiesenthal v. Denny, 4 Wash. 135, 16 L.R.A. 214, 29 Pac. 991; State v. Langworthy, 55 Or. 303, 104 Pac. 424, 106 Pac. 336; Ahrens v. Louisville, 186 Ky. 579, 217 S. W. 907; Burton v. Detroit, 190 Mich. 203, 156 N. W. 453. A construction of the ordinance or proposition can reach no other result than that a plan of acquisition is contemplated. The word "acquire," as thus used, comprehends the right to both purchase and construct, either or both. Clark v. Los Angeles, 160 Cal. 48, 116 Pac. 722; Anchor Invest. Co. v. Columbia Electric Co. 61 Minn. 510, 63 N. W. 1109. The course taken was lawful and competent. Sioux Falls v. Farmers' Loan & T. Co. 69 C. C. A. 373, 136 Fed. 732; State ex rel. Canton v. Allen, 178 Mo. 555, 77 S. W. 868; State ex rel. School Dist. v. Gordon, 223 Mo. 1, 2, 122 S. W. 1008; Clark v. Manhattan Beach, 175 Cal. 637, 1 A.L.R. 1534, 166 Pac. 806; Oakland v. Thompson, 151 Cal. 576, 91 Pac. 387; Thompson Houston Electric Co. v. Newton, 42 Fed. 727. Courts will not and cannot determine what motives or reasons influenced voters in voting as they did, or upon what information or arguments they acted. Angle v. Chicago, St. P. M. & O. R. Co. 151 U. S. 1, 18, 19, 38 L. ed. 55, 64, 65, 14 Sup. Ct. Rep. 240; New Orleans V. Warner, 175 U. S. 120, 44 L. ed. 96, 20 Sup. Ct. Rep. 44; McCray v. United States, 195 U. S. 37, 54–56, 49 L. ed. 95, 96, 24 Sup. Ct. Rep. 769, 1 Ann. Cas. 561; Chesapeake & P. Teleph. Co. v. Manning, 186 U. S. 245, 46 L. ed. 1147, 22 Sup. Ct. Rep. 881; People v. Gardner, 143 Mich. 104, 106 N. W. 541; Soon Hing v. Crowley, 113 U. S. 710, 28 L. ed. 1147, 5 Sup. Ct. Rep. 730; People ex rel. Ellis v. Calder, 153 Mich. 724, 126 Am. St. Rep. 550, 117 N. W. 314; Allen v. State, 14 Ariz. 458, 44 L.R.A. (N.S.) 469, 130 Pac. 1114; Epping v. Columbus, 117 Ga. 263, 43 S. E. 803; United States v. Des Moines Nav. & R. Co. 142 U. S. 514, 545, 35 L. ed. 1110, 12 Sup. Ct. Rep. 308; State ex rel. School Dist. v. Gordon, 223 Mo. 23, 122 S. W. 1008; Epping v., Wheeler v. Denver, 145 C. C. A. 196, 231 Fed. 8, appeal dismissed in 245 U. S. 626, 62 L. ed. 518, 38 Sup. Ct. Rep. 10; People ex rel. Murphy v. Kelley, 76 N. Y. 494; Chostkov v. Pittsburgh, 177 Fed. 936; Maxey v. Oshkosh, 144 Wis. 238, 31 L.R.A. (N.S.) 799, 128 N. W. 899. Mr. Justice Day delivered the opinion of the court: The appellant, plaintiff below, sets forth in its bill that it is the owner of a system of street railways in the city of Detroit, and suburban lines running from said city. The suit was brought in the district court, to enjoin the city of Detroit and the other defendants, municipal officials, from acquiring or constructing a system of street railways, which had been provided for by an ordinance of the city, with an issue of $15,000,000 of its bonds for that purpose, and approved by the requisite majority at a municipal elec tion. Detroit, 229 U. S. 39, 57 L. ed. 1056, 33 Sup. Ct. Rep. 697, affirming the judg ment of the supreme court of Michigan in the same case (172 Mich. 136, 137 N. W. 645), held that where a street railway company, operating in the streets of the city under a franchise granted for a definite period, has enjoyed the full term of the grant, the municipality may, upon failure of renewal of the grant, require the company, within a reasonable time, to remove its tracks and other property from the streets, without impairing any contractual obligations protected by the Federal Constitution, or depriving the street railway company of its property without due process of law. We see no occasion to depart from the principles announced in that case. The decree is in the record, and, so far as anything appears, is still in full force and effect. If the courts of Michigan shall see fit to carry it into execution, we find nothing in the Federal Constitution which would make its enforcement a deprivation of due process of law. The railway company claims to have acquired property rights in the streets of the city, upon which its franchises have expired, by reason of matters set out in the bill and supported in the argument submitted by the appellant. Reference is made to certain so-called day-to-day arrangements, by which continued operation was permitted notwithstanding the expiration of franchise rights. But an examination shows that construction and operation under such agreements gave the rail The grounds of relief, briefly stated, are: That establishment of the system and the issue of the bonds should be enjoined at the instance of the plaintiff, because the ordinance was not legally adopted by the voters of the city of Detroit, and, if carried into effect, as pro-way company no extended franchises in posed, and by the methods which brought about its adoption, a deprivation of plaintiff's property rights without due process of law, in violation of the 14th Amendment to the Constitution of the United States, would result. The district court maintained the jurisdiction upon the Federal ground alleged, and dismissed the bill upon motion in the ⚫ nature of a demurrer. The case is brought to this court by direct appeal because of the constitutional question involved. The bill is very voluminous, and abounds in argumentative statements attacking the passage of the ordinance, and the good faith of the officials concerned in bringing about its enactment. Among the streets proposed to be occupied by the city are those upon which it is alleged the trackage and property rights of the complainants are [174] sought to be acquired, and upon which the franchise grants of the street railway company have expired. This court in Detroit United R. Co. v. the streets, because it was expressly provided that the permits granted might be revoked, and that action under the dayto-day agreement should not waive the rights of either party. Rights to remain in the streets are also claimed under the so-called Kronk Ordinance, which was before this court in Detroit United R. Co. v. Detroit, 248 U. S. 429, 63 L. ed. 341, P.U.R.1919A, 929, 39 Sup. Ct. Rep. 151, [175] in which this court, while reaffirming the principles laid down in Detroit United R. Co. v. Detroit, 229 U. S., supra, found that the city had not, up to that time, availed itself of the right to compel the removal of the tracks in streets where the company had no franchise, but had passed an ordinance looking to the continued operation by the company of the street railway system for a limited period; and that, while it acted under this ordinance, there was the equivalent of a grant to operate during the life of the ordinance, entitling the company to a fair return; that the ordi 1920. DETROIT UNITED RAILWAY v. DETROIT. nance, by its express terms, provided, Allegations are made which are supposed to have the effect of estopping the city of Detroit from denying the franchise rights of the plaintiff in the streets of the city because of expenditures of large sums of money with the knowledge and acquiescence of the city authorities and the people of the city since the franchises have expired. Under the Constitution of Michigan, "Besides, article 20, § 4, of the state The provision of the Constitution of Michigan, in force when the ordinance The charge is made at length in the bill "Whether $7,000,000 is an adequate price for the company's plant, and whether its value will be ruinously impaired by the construction of a municipal plant, are beside the question. Being under no obligation to purchase, the city is free to name its own terms, and the water company is likewise free to accept or reject them. The latter is under no compulsion other than such as inheres in the nature of its property or arises from a proper regard of its own interests. That the city, mindful of its interests, offered $7,000,000 for the water company's the construction of a new plant of its plant, when it could have proceeded to own, without making any offer to the 575 |