Cook Coffee Co. v. Vill. of Flushing, 77.
Decision Date | 04 June 1934 |
Docket Number | No. 77.,77. |
Citation | 255 N.W. 177,267 Mich. 131 |
Parties | COOK COFFEE CO. v. VILLAGE OF FLUSHING et al. |
Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Genesee County, in Chancery; Edward D. Black, Judge.
Suit by the Cook Coffee Company against the Village of Flushing and another. Judgment for defendants, and plaintiff appeals.
Reversed.
Argued before the Entire Bench, except BUSHNELL, J.
Friedman, Meyers & Keys, of Detroit (Sylvan Rapaport, of Detroit, of counsel), for appellant.
Cook, Sheppard & Stipes, of Flint, for appellees.
The common council of the village of Flushing in 1933 adopted an ordinance entitled: ‘An ordinance to regulate hawking, peddling and street vending and to prohibit the sale of goods, wares, merchandise, fruits, and vegetables, within the limits of the village of Flushing without a license.’ This ordinance was to become effective May 2, 1933. Section 1 of the ordinance is as follows:
Section 2 provides that ‘(c) Those representing retail or wholesale establishments which have been engaged in business in the village of Flushing three months or longer’ shall be exempt from payment of fees for licenses under the ordinance.
Plaintiff is a Michigan corporation, organized in 1921, having its main offices in Detroit, and warehouses in Detroit, Flint, Battle Creek, and Bay City. It also does business in and has affiliated corporations in other states. Plaintiff deals in tea, coffee, sundry groceries, and spices. It does business in over a hundred villages and communities in Michigan, sending out its salesmen in trucks. The salesman calls upon his customers once every two weeks. At the time he makes deliveries, he takes orders for the next delivery. The salesman does not go from door to door soliciting orders, nor does he call out his wares upon the street. He does, however, call on any new customers who are recommended by old customers. The plaintiff, through its agent, has been taking orders and making deliveries in this manner in the village of Flushing for more than five years.
After paying $10 in daily fees over a period of several months, plaintiff refused to continue the payment of fees as prescribed in the ordinance and insisted by the village officials, and filed a suit to enjoin the enforcement of the ordinance. Plaintiff alleges that the ordinance is unconstitutional because it discriminates between local and nonlocal tradesmen, and thus violates the Fourteenth Amendment of the Federal Constitution and article 2, § 1, of the Constitution of Michigan of 1908, guaranteeing to all persons the equal protection of the laws. Plaintiff also contends that the license fee is not regulatory in nature but amounts to a tax, and that the ordinance is unconstitutional because it gives the village council power to revoke any license at will.
The trial court in construing the ordinance held that the exemption applies only to retail or wholesale establishments which have had a regular place of business in Flushing for three months or longer, and held that plaintiff was not exempt from the license fee, and that the ordinance was constitutional. Plaintiff appeals.
The Fourteenth Amendment of the United States Constitution, and article 2, § 1, of the Michigan Constitution of 1908, give the same right of equal protection of the laws. Naudzius v. Lahr, 253 Mich, 216, 234 N. W. 581, 74 A. L. R. 1189.
These constitutional provisions do not mean that there can be no classification in the application of statutes and ordinances, but only that the classification must be based on natural distinguishing characteristics and must bear a reasonable relation ot the object of the legislation.
The standards of classification given in Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, at page 78, 31 S. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160, were quoted by this court in Naudzius v. Lahr, 253 Mich. 216, at 222, 223, 234 N. W. 581, 583, 74 A. L. R. 1189: ...
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