Alexander v. City of Detroit

• Decision Date: 21 February 1973
• Docket Number: Docket No. 12491,No. 1,1
• Citation: 45 Mich.App. 7,205 N.W.2d 819
• Parties: Shirley ALEXANDER et al., Plaintiffs-Appellees, Cross-Appellants, v. CITY OF DETROIT, a Michigan municipal corporation, et al., Defendants- Appellants, Cross-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 819

205 N.W.2d 819

45 Mich.App. 7

Shirley ALEXANDER et al., Plaintiffs-Appellees, Cross-Appellants, v.CITY OF DETROIT, a Michigan municipal corporation, et al Defendants- Appellants, Cross-Appellees.

Docket No. 12491.

Court of Appeals of Michigan, Division No. 1.

Feb. 21, 1973.

Released for Publication April 13, 1973.

Michael M. Glusac, Corp.Counsel, John F. Hathaway and Maureen P. Reilly, Asst. Corp. Counsels, Detroit, for defendants-appellants.

Katz, Victor & Yolles, Southfield, Barris, Sott, Denn & Driker, Detroit, for intervenorsPractical Home Builders, Inc., and others.

Charles E. Lampert, Southfield, for intervenors.

Before QUINN, P.J., and V. J. BRENNAN and O'HARA, ^* JJ.

O'HARA, Judge.

The question presented is one of constitutional law.The specific enactment involved is an ordinance of the City of Detroit.Plaintiffs below, appellees and cross-appellants here, contend the ordinance is unconstitutional under two well-settled principles.First they complain that the ordinance as drawn is arbitrary and discriminatory in the classifications contained therein thus denying them the equal protection of the law.Second they argue that should we find the classifications are reasonable but the ordinance as enforced is discriminatory, it is a infirm constitutionally as an ordinance which by its own terms is unconstitutional.Additionally, say appellees even though the classifications are proper and the enforcement nondiscriminatory the ordinance is not a valid exercise of the police power but rather it is a revenue measure only clothed in the garb of the police power and as such it requires a method of enactment different from one which is in fact an exercise of the police power.

Not so says appellant city.The ordinance is in law and in fact a valid exercise of the police power and not a revenue measure.Its classification and exemptions are reasonable and based upon studies and sound legislative judgment.The enforcement, the city alleges, is not discriminatory as to the challenging parties and affords no basis for Their complaint as to the claimed discriminatory enforcement.

We believe this distillation of the enumerated assignments of error encompasses all the controlling principles of constitutional law.

We note at the outset the route chosen by plaintiffs is not the conventional frontal attack upon an ordinance.Nor indeed could it be.There are no sanctions imposed by it.This immediately distinguishes this case from that immense body of law governing enactments which impose fines, confinements, denial of licenses, or other affirmative sanctions.Second, we note that in order to be adversely affected by the ordinance, plaintiffs first had to Choose to come within its terms.The point is fundamental and should be kept in mind as we proceed with the decisional process.

We mentioned above that the attack on the ordinance is not frontal.Rather it is oblique.The challenge comes to us in the nature of an asserted class action and the relief sought is really in the nature of money damages.This is made possible because in the court below plaintiffs sought and obtained an order segregating all the monies collected pursuant to the ordinance, and placing them in an escrow account separate from all other municipal funds with disposition of claims against the account to be made according to the determination of the claimed unconstitutionality.The viscera of the trial judge's holding was that all of the monies collected from the members of the class which plaintiffs claimed to represent were determined to be the 'property of plaintiffs and the Class' and that the attorneys for plaintiffs be paid a reasonable attorney fee 'which this Court(the court) shall hereafter determine'.The remainder of the monies collected from the members of the class was to be remitted to the members of the class 'in such manner as this Court(the trial court) may hereafter order'.

It would seem that our first step should be to set forth herein for examination this Rara avis which is the subject of this somewhat unusual constitutional challenge.

It has to do with an amendment to the Code of the City of Detroit to define 'commercial waste and (to) provide for the collection thereof'.As relevant here we set it forth.

'Sec. 25--1--1.For the purposes of this article, the following words and phrases shall have the meanings respectively ascribed to them by this section:

'Commercial Waste.The miscellaneous waste material such as garbage, rubbish and ashes resulting from operation of business enterprises, and institutions and multiple dwellings of more than four units; Provided, however, that the term multiple dwelling shall not include condominiums and cooperatives.Such term includes construction waste, but excludes trade waste.

'Domestic Waste.The waste material resulting from the usual routine of housekeeping except from multiple dwellings of more than four units.Such term includes garbage, rubbish and ashes.

'Sec. 25--1--29.The department of public works shall collect garbage and rubbish from a commercial establishment, and other commercial waste subject to payment therefor as provided in this article; Provided, however, that upon petition by any non-profit or limited dividend federally subsidized housing development for low to moderate income families, or by a bona-fide non-profit, charitable or eleemosynary organization, the Common Council may reduce or waive the collection of the charges specified hereunder.Nothing contained in this article shall be construed to prohibit the party responsible for creating commercial waste from entering into a contract with an authorized private collector or otherwise disposing of such waste, provided it is stored and disposed of in such a manner as to create no nuisance.'

We added the emphasis above to relate what we mentioned earlier, that in order to be adversely affected by the ordinance plaintiffs had to choose to come within its terms voluntarily.Were it not for the possibility of remand to us for determination of other issues raised we would dispose of the case upon the basis of the italicized language.In reality all the ordinance amounts to is an offer to perform a service which sometimes municipal residents are Required to accept at an established price.That same service is often contracted out by the same municipalities.In other cases residents may arrange privately for disposition under any terms so long as the disposition accords with reasonable requirements of municipal sanitation and applicable statutory minima.

In the case at barplaintiffs had the options of private contract, private disposition, or the service offered by the city at the price established by the ordinance.Plaintiffs could not possibly be the victims of alleged discrimination in classification or discriminatory enforcement unless they opted for the offered municipal service.Having made their choice they can not be heard to complain.Under a mandate to accept municipal disposition their status might well be different.For the foregoing reason we reverse the trial court, vacate the order of segregation of the monies collected, and direct that they be released to appellant city for disposition in whatever manner the relevant municipal provision prescribes.

We now address ourselves to the claimed arbitrary classifications.We find none.Regulation of an ordered society must sometimes, because of the nature of things, depend on numbers.We do not conceive it within our judicial competence to hold that four is discriminatory and six is not.Somewhere the municipal legislative authority must draw a numerical line albeit within reasonable limits.We find nothing arbitrary, capricious, or fanciful in setting the number at four units.

Exclusion of condominiums and cooperatives by the city is not without a rational and reasonable basis.The city argues condominiums and cooperatives are, in fact, individually or cooperatively owned, single residential units falling within the classification of single unit dwelling places to which the Commercial fee-base is inapplicable.We find the distinction is not invidious, arbitrary, or discriminatory.

The claimed discrimination by exemption of bona fide nonprofit or federally subsidized housing developments does not merit discussion.The classification basis is manifest.

What does merit discussion and to what plaintiffs are entitled to our judicial answer is the unquestionable fact that though the ordinance provides that waiver or reduction of the collection and disposition fee may be had Upon petition to the Common Council, the department charged with the responsibility of classification and the collection of the prescribed fee in effect waived the fee departmentally without regard to the petition requirement.The practice was, and if it is continuing remains, improper.The difficulty with applying this established impropriety to plaintiffs' case is that there is no way of determining judicially whether had a petition for waiver or reduction not been granted to, for example, Wayne State University, the university would not have chosen one of the two other methods of waste collection and disposition available to it under the ordinance.There was some proof adduced by the city that certain premises on units to which the fee was applicable chose private contract at a cost less than provided by the ordinance.

We inevitably come back to what we noted initially.This ordinance is at best an offer of municipal service on a fee base set...