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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



Opinion No. 5799

October 15, 1980


Ordinance--trains obstructing street or highway

A city ordinance which permits a train moving in one direction to obstruct vehicular traffic on public streets or highways for a longer period than five minutes at any one time is void as contrary to state law.

The Honorable John C. Hertel

State Senator

The Capitol Building

Lansing, Michigan 48909

You have requested my opinion as to whether Detroit City Code, Sec. 49-1-5, which relates to trains obstructing vehicular traffic at grade crossings, conflicts with 1873 PA 198, art 4, Sec. 23, MCLA 466.23; MSA 22.281(1) on the same subject. Ordinance 49-1-5, supra, states in pertinent part:

'No person operating a train in this city shall obstruct any public street or highway for a period longer than five minutes, nor shall successive train movements be permitted to obstruct streets or highways until all vehicular traffic previously delayed has been cleared or a period of five minutes has elapsed since the obstruction. This provision shall not apply to a train moving continuously in one direction.'

'1873 PA 198, art 4, Sec. 23, supra, states:

'It shall be unlawful for a railroad company to permit any of its trains to obstruct any vehicular traffic on public streets or highways for a longer period than 5 minutes at any one time.'

The difference between the above-quoted enactments is that the Detroit ordinance exempts a train moving continuously in one direction from the five-minute obstruction limitation.

Various state courts have upheld the right of the state and of local units of government to regulate the obstruction of streets by railroads. The basis of these court decisions has been that the area of regulation is one of local concern and not one which unduly infringes on the power of the Federal Government to regulate interstate commerce. Commonwealth v New York Central Railroad Company, 350 Mass 724, 216 NE2d 870 (1966); Louisville & Nashville Railroad Company v Commonwealth of Kentucky, et al., 488 SW2d 329 (Ky Ct of App, 1972); City of Lake Charles v Southern Pacific Transportation Company, 310 So2d 116, aff'd 313 So2d 600 (1975).

While the regulation of railroad train obstruction of highways is a matter of local concern, the court, in People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902, 904 (1977), cert den, 435 US 1008; 96 S Ct 878; 56 L Ed 2d 390 (1978) concluded:

'A municipality is precluded from enacting an ordinance if 1) the ordinance is in direct conflict with the state statutory scheme, or 2) if the state statutory scheme pre-empts the ordinance by occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation.'

An ordinance is in conflict with a statute when the ordinance permits what the statute prohibits or prohibits what the statute permits. Builders Association v City of Detroit, 295 Mich 272, 277; 294 NW 677, 678 (1940); Walsh v City of River Rouge, 385 Mich 623, 637; 189 NW2d 318; 59 ALR 3d 303 (1971).

It is, therefore, my opinion that the Detroit City Code Sec. 49-1-5 is in conflict with 1873 PA 198, art 4, Sec. 23, to the extent it permits trains moving in one direction to obstruct traffic on public thoroughfares for a period in excess of five minutes.

Frank J. Kelley

Attorney General

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