People v. Herley

• Decision Date: 24 April 1925
• Docket Number: No. 122.,122.
• Citation: 203 N.W. 531,230 Mich. 676
• Parties: PEOPLE v. HERLEY.
• Court: Michigan Supreme Court

230 Mich. 676

203 N.W. 531

PEOPLE

v.HERLEY.

No. 122.

Supreme Court of Michigan.

April 24, 1925.

Error to Circuit Court, Wayne County; Theodore J. Richter, Judge.

Morris Harley was convicted of operating license, and be brings error. Affirmed, and license, and he brigs error. Affirmed, and case remanded.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Hugh G. Allerton, of Highland Park (Henry C. Bogle, of Detroit, of counsel), for appellant.

Claude H. Stevens, City Atty., of Detroit, for the People.

MOORE, J.

Defendant was convicted of operating a public lodging house in the city of Highland Park without obtaining a license as required by an ordinance of that city. The case was tried before the circuit judge without a jury, and upon an agreed state of facts.

We quote from the record:

‘It is agreed by the parties that defendant had no license as required by the ordinance herein in question, and that the sole question raised is the constitutionality of the said ordinance No. 326, as amended, of the city of Highland Park, a copy of which is included in this record together with a copy of the pertinent sections of the charter of said city of Highland Park.’

Because of this agreement, we shall limit our inquiry to the constitutionality of the ordinance. The provisions of the ordinance that are material to this inquiry are the following:

‘Section 2. Upon receipt of such application, the city council, before acting upon it, may refer the same for investigation to any officer or officers of the city, who shall report to the council within a reasonable time. If upon the receipt of such application, or if referred as above provided upon the receipt of such report, the city council is satisfied that the applicant is a suitable person to carry on such business and that the granting of such license will not be detrimental to the interests of the public, nor in violation of any statute or any ordinance, rule or regulation of the city of Highland Park, it shall grant such license to the applicant to be issued upon the payment to the city clerk of the fee hereinafter prescribed.

* * *

‘No license shall be issued for any premises which are restricted to private residence purposes.

‘Section 5. Every license shall provide and maintain a register or record in which he shall inscribe in ink at the time of arrival, the correct name of every person who is charged or pays for lodging or the rent of a room, the home address of such person or his last place of residence and the number of the room to which such person has been assigned.’

* * *

‘Section 5(a). The chief of police, the members of the police force, the health officer, and all other officers who are charged with the enforcement of this ordinance shall at all times have free access to all parts of the premises for which a license has been granted, as provided in this ordinance, and refusal to give such access by any person on such premises shall be a sufficient cause to work a forefeiture of said license.

‘Section 6. Any license granted under this ordinance shall be revocable by the city council at any time for a violation of any law of the state or any rule, regulation, or ordinance of the city, or if the council shall deem such licensee an unfit person to carry on said business, or if it shall be satisfied that said public lodging house as conducted is detrimental to the interests of the public.’

It was insisted before the trial judge and is insisted here that said ordinance is unconstitutional, because it confers upon the city council the arbitrary power to grant or withhold, or if granted to revoke, a license to operate a public lodging house, because of the fact that the ordinance prescribes no standard by which each person applying for a license can be tested as to his qualifications to operate said lodging house.

Counsel present this claim in great detail and insists that ‘the decisions of the Michigan Supreme Court are decisive of the question under discussion’-citing Devereaux v. Township Board, 211 Mich. 38, 177 N. W. 967;In re Frazee, 63 Mich. 396, 30 N. W. 72,6 Am. St. Rep. 310; Robinson v. Miner, 68 Mich. 549, 37 N. W. 21;Melconian v. Grand Rapids, 218 Mich. 397, 188 N. W. 521;Samuels v. Couzens, 222 Mich. 604, 193 N. W. 212;Harrigan & Reid Co. v. Burton,224 Mich. 564, 195 N. W. 60, 33 A. L. R. 142. Counsel also cite as sustaining their contention Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220;Tai Kee v. Minister of Interior, 12 Haw. 164;Makris v. Supperior Court, 113 Wash. 296, 193 P. 845, 12 A. L. R. 1428;Vincent v. City of Seattle, 115 Wash. 475, 197 P. 618;St. Paul v. Laidler, 2 Minn. 190 (Gil. 159)72 Am. Dec. 89;Ensley v. State, 172 Ind. 198, 88 N. E. 62;Meyer v. Nebraska, 262 U. S. 390, 43 S. Ct. 625, 67 L. Ed. 1042, 29 A. L. R. 1446;Keavey v. Randall (N. J. Sup.) 122 A. 379, and other cases found in the brief of counsel.

Counsel for the city of Highland Park cites a long list of cases which he insists sustain the ruling of the trial judge. We shall refer to some of these cases more at length later.

After examining the cases cited by counsel, we think we can agree with counsel for appellant in the statement that:

‘An attempt to reconcile all the decisions in the various jurisdictions in cases of this character in regard to the constitutionality of such ordinances would no doubt be somewhat difficult. At first thought decisions in such cases in the same jurisdiction seem to be in conflict, if regard is had merely to the language of the various opinions without considering the character of the business which it is sought to license or regulate.’

But we think the cases cited by counsel may be distinguished from the instant case.

In this connection it may be well to consider the situation at Highland Park. In this city is one of the largest manufacturing plants in the world. We may take judicial notice that people of many nationalities flock thither for employment. Many of them have different standards of living from those who have found a proper use of water and soap. Many of them have no families, and if they are to find shelter must find it in public lodging houses. We may, also take judicial notice of the fact that Highland Park is nearly surrounded by the city of Detroit, with more than a million people, and that in Detroit and in Highland Park and housing conditions are very congested, and there is great tempation to house more people in a given area than is good for the public health and public morals. These conditions would seem to make some sort of supervision imperative.

The question of granting licenses in this state is not a new one. Counsel for the city of Highland Park cite the following: Sherlock v. Stuart, 96 Mich. 193, 55 N. W. 845,21 L. R. A. 580;City of Grand Rapids v. Max Braudy, 105 Mich. 670, 64 N. W. 29,32 L. R. A. 116, 55 Am. St. Rep. 472;People v. Riverside Scrap Iron & Metal Co., 202 Mich. 469, 168 N. W. 424;Hughes v. City of Detroit, 217 Mich. 567, 187 N. W. 530;Melconian v. City of Grand Rapids, 218 Mich. 397, 188 N. W. 521.

They also cite other cases; we quote from the brief as follows:

‘As was said in the Grand Rapids v. Braudy Case, 105 Mich. 678,64 N. W. 32,32 L. R. A. 116, 55 Am. St. Rep. 472: ‘The necessity of a rigid control over this [junk] business in our large cities is clear. Convictions are difficult though the public authorities may be well convinced that stolen goods are bought and sole at these places.’

‘This language used in the opinion in the case of State v. Cohen, 73 N. H. 543, 63 A. 928, is applicable to the present case: ‘These officers [mayor and aldermen] were not to license persons generally, or such persons as they saw fit, but only ‘suitable persons.’ There is nothing in the statute having the least tendency to show an intention that there was to be any discrimination among ‘suitable persons,’ or that any persons were to be adjudged unsuitable excepting those who, in the conduct of the business, would probably defeat, or attempt to defeat, the purpose of the Legislature in requiring a license. All suitable persons who applied were to have licenses. The provision was not intended as a grant of arbitrary power, but only as the imposition of a duty upon those officers, to be performed by an impartial exercise of a reasonable discretion.'

‘In the case of State of Minnesota ex rel. Minces v. Schoenig, 72 Minn. 528, 75 N. W. 711, the court uses the following language: ‘But granting or refusing a license always involves the exercise of a reasonable discretion in determining whether the applicant is or is not a fit person to whom to issue a license. A city council is not absolutely bound to issue a license to conduct such sales to every applicant, regardless of his character, who will pay the required fee. * * * The power to grant licenses implies the power to refuse to do so for good cause. If they should arbitrarily, and not in the honest exercise of a sound discretion, refuse...