Bundo v. City of Walled Lake, Docket No. 18860

• Decision Date: 02 May 1974
• Docket Number: Docket No. 18860,No. 2,2
• Citation: 218 N.W.2d 869,53 Mich.App. 317
• Parties: Benjamin BUNDO, Jr., d/b/a Camelot Inn, Plaintiff-Appellant, v. CITY OF WALLED LAKE, a Michigan municipal corporation, and the Liquor Control Commission for the State of Michigan, jointly and severally, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 869

218 N.W.2d 869

53 Mich.App. 317

Benjamin BUNDO, Jr., d/b/a Camelot Inn, Plaintiff-Appellant, v. CITY OF WALLED LAKE, a Michigan municipal corporation, and the Liquor Control Commission for the State of

Michigan, jointly and severally,

Defendants-Appellees.

Docket No. 18860.

Court of Appeals of Michigan, Division No. 2.

May 2, 1974.

Released for Publication June 19, 1974.

Paul G. E. Valentino, Pontiac, for plaintiff-appellant.

Joseph T. Brennan, Farmington, for city.

Richard I. Rubin, Lincoln Park, for Liquor Control.

Before McGREGOR, P.J., and R. B. BURNS and O'HARA,* JJ.

PER CURIAM.

This is not a lawsuit about topless dancing, although that is what the plaintiff says it is in the first page of his brief. That also is probably what the media will say if the opinion is found newsworthy.

The defendant agrees with the plaintiff that the ban on 'stripping, striptease and/or go-go activities * * * (and) topless waitresses' is an issue in the case.

We have a different view. What we think is at issue, and very importantly so, is whether a statute ¹ which empowers a municipality to withhold renewal of a consumption on the premises liquor license, without any stated reason therefor, and which provides for no appeal from the action of the municipality's legislative body can continue to stand the challenge of constitutional infirmity.

Twenty years ago the State Supreme Court said it could. Of the statute, M.C.L.A. § 436.17; M.S.A. § 18.988, the Court said it 'vests in the local legislative body full power and discretion with respect to approval of such licenses. Even though exercised in an arbitrary and capricious manner, we do not review it.' Hanson v. Romeo Village Council, 339 Mich. 612, 615, 64 N.W.2d 570, 571 (1954).

So much then for plaintiff's claim of unconstitutionality for want of review.

But what of plaintiff's contention that the denial of his license without right of review offends against the constitutional protection against impairing the obligations of a contract. The statute, M.C.L.A. § 436.17; M.S.A. § 18.988, says that all licenses shall be construed as a contract between the licensee and the commission and shall be signed by both parties.

Forty years ago the Supreme Court took care of that argument by holding:

'Notwithstanding the fact that (the involved statute) provides that the liquor license granted by the commission shall be construed to be a contract between the commission and the licensee, such a license is not a contract within the protection of the contract clause of the Constitution.' Johnson v. Liquor Control Commission, 266 Mich. 682, 686, 254 N.W. 557, 559 (1934).

The last constitutional argument plaintiff advances is that to take his license through no renewal without reason or without appeal is to deprive him of his property without due process of law. Not so says the Supreme Court in Johnson, supra:

'A license is not property within the meaning of the due process clause.' 266 Mich. at 687, 254 N.W. at 559.

We are bound by our state Supreme Court precedent unless there is a conflict in the holdings of that Court, or unless the United States Supreme Court has spoken to a Federal constitutional question.

We find no conflict in our state holdings. However, in the Federal field there seems to be an increasing concern over the guarantee of administrative due process in the area of licensing. ² As of now we find no case involving liquor licensing. Thus we are forced to conclude that it...