City of Ann Arbor v. Riksen

• Decision Date: 04 May 1938
• Docket Number: Jan. Term.,No. 115,115
• Citation: 284 Mich. 284,279 N.W. 513
• Parties: CITY OF ANN ARBOR v. RIKSEN.
• Court: Michigan Supreme Court

284 Mich. 284

279 N.W. 513

CITY OF ANN ARBOR

v.RIKSEN.

No. 115, Jan. Term.

Supreme Court of Michigan.

May 4, 1938.

B. Ray Riksen was prosecuted for the violation of an ordinance of the City of Ann Arbor and upon conviction appealed to the Circuit Court which found accused not guilty and discharged him on the ground that the ordinance was unconstitutional, whereupon the Supreme Court granted the City of Ann Arbor leave to appeal.

Ordinance declared valid, and cause referred to trial court for further consideration.Appeal from Circuit Court, Washtenaw County; George W. sample, judge.

Argued before the Entire Bench.

William M. Laird, of Ann Arbor, for appellant.

Hooper & Hooper, of Ann Arbor, for appellee.

SHARPE, Justice.

Defendant was charged with violating the hawkers and peddlers ordinance of the City of Ann Arbor. Complaint was made and filed with the justice of the peace of Ann Arbor and warrant was issued on said complaint under which the defendant was arrested. Defendant was convicted and ordered to pay a fine and costs. He appealed the conviction to the circuit court; and upon proceedings therein the defendant was held not guilty and was discharged on the ground that the ordinance was unconstitutional.

Thereafter, the people of the City of Ann Arbor made application to this court for leave to appeal, which was granted. In discussing the right of the people to appeal, the general rule is well stated in 2 Am.Jur. p. 986, § 228: ‘The right of a municipality to appeal from a judgment in favor of the defendant in a prosecution for violation of an ordinance depends upon whether the proceeding is treated as civil or criminal. As a general rule, if the proceeding is regarded as civil, the municipality may appeal, while if it is regarded as criminal, there can be no appeal by the municipality except by express statutory authority. This is true in the latter case even though the state is authorized by statute to appeal from a judgment for the defendant in a criminal prosecution, such statute not applying to municipal corporations.’

We have held in many cases that violation of an ordinance is ‘in one sense a crime.’ City of Detroit v. Wayne Circuit Judge, 233 Mich. 356, 206 N.W. 582.

See, People v. Goldman, 221 Mich. 646, 192 N.W. 546 (complaint charged a crime as well as violation of the ordinance); People v. Hanrahan, 75 Mich. 611, 42 N.W. 1124,4 L.R.A. 751 (complaint charged a crime under the statute as well as ordinance); Stewart v. Hart, 196 Mich. 137, 162 N.W. 1028 (Legislature authorized City of Battle Creek to pass ordinances pertaining to public health, empowered it to ‘prescribe penalties for their violation and declared violation a misdemeanor’).

The charge upon which defendant was arrested was not criminal in character and the proceedings were not criminal in the sense that they were an enforcement of general criminal laws. In People v. Smith, 146 Mich. 193, 109 N.W. 411, 412, defendant was arrested upon a warrant for selling goods without a license contrary to the ordinance. The court said, ‘prosecutions for violation of city ordinances are not criminal cases within the meaning of the term as used in the general laws of the state,’ and held that violations of city ordinances are not criminal cases within the meaning of the statute allowing exceptions to be certified to this court before judgment in criminal cases.

Nor are such violations criminal cases within the meaning of the statutes and rules for review by this court. Review in this court by appeal is the proper method (see, People v. Smith, supra), and the people of the City of Ann Arbor having been granted permission to appeal, the cause is properly before us.

Defendant contended before the justice and circuit courts that the ordinance was unconstitutional in that the provision in said ordinance requiring a license fee of $150 per year for each vehicle used by a hawker or peddler was excessive, unreasonable, prohibitive, and confiscatory; and because the ordinancevests arbitrary discretion in the mayor and city council relative to the granting, suspending, and revoking of licenses issued thereunder.

Decision of invalidity of the ordinance in the circuit court was based upon the ground that the fee for license to do business was confiscatory. In the case at bar, respondent was in the business of peddling tobacco, soft drinks, ice cream, candy, milk, and sandwiches to about 60 fraternities, sororities, and league houses surrounding the campus of the University of Michigan, but did not have a license to peddle as prescribed by the ordinance. We have repeatedly held that the criterion, by which the reasonableness of the license fee charged is to be gauged, is the cost of investigation, regulation, and control of the business by the municipality. Vernor v. Secretary of State, 179 Mich. 157, 146 N.W. 338, Ann.Cas.1915D, 128;Fletcher Oil Co. v. City of Bay City, 247 Mich. 572, 226 N.W. 248.

‘The reasonableness or unreasonableness of a license tax cannot be determined by the extent of the business of a single individual. There may be competition or negligence on his part, or other considerations affecting the extent of the business of complainant.’ Nashville, C. & St. L. R....