tion for the jury. Bush v. Railway Co., 113 Mich. 513; Rahaley v. Railway, 177 Mich. 96; Purulewski v. Railway, 181 Mich. 133; Millette v. Railway, 186 Mich. 634; Prince v. Railway, 192 Mich. 194; Hickey v. Railway, 202 Mich. 496.

2. Complaint is made of the following instruction:

"The ordinance of the city of Detroit provides that within the three-mile circle, and this would be within the three-mile circle, the cars may not run at a greater than an average rate of ten miles an hour, but when I speak of that, gentlemen of the jury, I do not mean to say that ten miles is a maximum speed, but is the average speed, including all the stops on the line, and I cannot say, gentlemen of the jury, that to run a car at 18 miles an hour or 17 miles or whatever the testimony shows, that this is an indication that there is a breach of the ordinance. But on the other hand, gentlemen of the jury, a truck driving along the street is not obliged to wait until every street car in sight has come and passed by, because in some places obviously, gentlemen of the jury, you would never get across. But what it does mean is this, that a person shall exercise reasonable care when a motorman is running at 18 miles an hour, which he may properly do under some circumstances. It does not mean, gentlemen of the jury, that it shall continue at 18 miles an hour when any vehicle which is approaching nearer the crossing than he is, attempts to cross in front of him, it is for you to say under the circumstances of this case whether or not the Detroit United Railway was guilty of negligence under the circumstances."

It is argued that inasmuch as the ordinance referred to was neither pleaded nor received in evidence, the instruction was error, and it is urged that it was rendered more harmful by the fact that the principal ground of recovery was based on excessive speed of the car.

It was held in Richter v. Harper, 95 Mich. 221, that a city ordinance to be available in establishing the negligence of the defendant must be pleaded. In

206-Mich.-24.

Gardner v. Railway Co., 99 Mich. 182, the rule was approved and the reason therefor stated to be that a common-law declaration will not support proof of a duty created by an ordinance, unless defendant is given notice thereof. This rule has since been adhered to by this court in many cases, although we have held that an ordinance, not pleaded, was admissible in evidence when offered solely for the purpose of affecting the question of plaintiff's negligence. Putnam v. Railway, 164 Mich. 342; Millette v. Railway, 186 Mich. 634.

In the present case the declaration made no reference to the ordinance. Neither was it offered in evidence. Had counsel in his argument to the jury made the same use of the ordinance without correction by the court, it would have been regarded as a serious error. Coming as it did from the court it had greater force with the jury. While the case finally turned on the negligent operation of the car the question of speed was much relied on in connection with this question. In view of this we think the reference made to the ordinance by the court was harmful to the point of being reversible error. For this reason the judgment is reversed and a new trial ordered, with costs to defendant.

MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred. OSTRANDER, J., did not sit.

JUNE TERM, 1919.

HAMILTON v. SECRETARY OF STATE.

CONSTITUTIONAL LAW-PETITION FOR SUBMISSION OF AMENDMENTREVIVAL ELECTIONS.

A petition filed with the secretary of State to submit to the electors at the next general election a proposed constitutional amendment, and found insufficient for that purpose, because lacking signatures, performed its office and cannot be treated as a continuing petition, to be revived from time to time by the addition of other names.

Mandamus by James Hamilton to compel Coleman C. Vaughan, secretary of State, to submit a proposed amendment to the Constitution. 1919. (Calendar No. 28,84012.) 10, 1919.

Moore & Moore, for plaintiff.

Submitted May 29,
Writ denied June

PER CURIAM. We are of opinion that the petition. filed with the secretary of State and considered in Hamilton v. Secretary of State, 204 Mich. 439, cannot be treated as a continuing petition, to be revived as such from time to time by the addition of other names. It was filed to effect a purpose. It was found and declared to be insufficient for the purpose because lacking signatures. It performed its office and as a petition, in view of the law, is dead.

(371)

ATTORNEY GENERAL v. MICHIGAN STATE
TELEPHONE CO.

TELEGRAPHS AND TELEPHONES-RATES-FEDERAL CONTROL. Where the President of the United States, acting under the authority given him by joint resolution of Congress (40 U. S. Stat. 904, chap. 154), took possession and control of the telegraph and telephone systems of the United States as a war measure, and such control and operation were exercised through the postmaster general, the latter had the power to prescribe local rates for telephones in the city of Detroit without reference to the laws of the State of Michigan relating thereto; the questions involved being Federal and controlled by the decisions of the Supreme Court of the United States.

Appeal from Ingham; Wiest, J. Submitted April 16, 1919. (Docket No. 50.) Decided June 13, 1919.

Bill by Alex. J. Groesbeck, attorney general, against the Michigan State Telephone Company and another to restrain a proposed increase in rates. From a decree for plaintiff, defendants appeal. Reversed, and bill dismissed.

Alex. J. Groesbeck, Attorney General, Leland W. Carr and Thomas G. Baillie, Assistants Attorney General (David H. Crowley, of counsel), for plaintiff.

Stevenson, Carpenter, Butzel & Backus, Charles M. Bracelen and Thomas G. Long (Leo M. Butzel and Eugene S. Wilson, of counsel), for defendants.

MOORE, J. This is an action brought by the attorney general for the purpose of securing an injunction to restrain a proposed increase in telephone rates, the bill of complaint being founded upon the proposition that such increase has not been obtained by the meth

od prescribed by the laws of the State in that an application had not been filed with, or approval obtained from, the Michigan railroad commission as prescribed by section 10 of Act No. 206 of the Public Acts for the year 1913 (2 Comp. Laws 1915, § 6698).

The answer set forth the various steps by which the telephone lines of the United States, including those of the defendant telephone company, came into the control of the postmaster general, and asserted that the increase in rates was due to an order made by the postmaster general. The answer denied the authority of the court to grant the relief prayed for in the bill of complaint for the reason that the postmaster general had not been made a party defendant to the said bill and that the action was in effect a suit against the United States government and without its consent.

Upon the issues thus made the matter came on for hearing and the court issued its injunction restraining the defendants from putting into effect the proposed schedule of rates. This is an appeal from that decree.

We quote from the brief of the attorney general:

"Two questions only are presented for consideration:

"First: Has the postmaster general, by virtue of the joint resolution of congress, the authority and power to prescribe local rates applicable only to the city of Detroit without reference to the laws of the State of Michigan relating thereto?

"Second: Has the circuit court for the county of Ingham, in chancery, jurisdiction to entertain proceedings and grant injunctive relief?"

Litigation of like character to that involved here has arisen in a number of States. In Oklahoma and Massachusetts injunctive relief was refused. In Mississippi and North Dakota and perhaps other States it was granted. Because of the great importance of