Dymmel v. Michigan State Cemetery Commission

• Decision Date: 24 September 1973
• Docket Number: Docket No. 14630,No. 1,1
• Citation: 49 Mich.App. 419,212 N.W.2d 237
• Parties: Roy G. DYMMEL, Plaintiff-Appellant, v. MICHIGAN STATE CEMETERY COMMISSION et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 237

212 N.W.2d 237

49 Mich.App. 419

Roy G. DYMMEL, Plaintiff-Appellant, v. MICHIGAN STATE CEMETERY COMMISSION et al., Defendants-Appellees.

Docket No. 14630.

Court of Appeals of Michigan, Division No. 1.

Sept. 24, 1973.

Released for Publication Nov. 27, 1973.

Leave to Appeal Denied Jan. 23, 1974.

Eli Friedman, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Christopher C. Nern, Asst. Atty. Gen., for Commission.

John E. English, Fitzgerald, Peters & English, Detroit, for Memorial Park.

Robert A. Frye, Birmingham, for Cemeteries.

Before BRONSON, P.J., and V. J. BRENNAN and WALSH,* JJ.

V. J. BRENNAN, Judge.

Plaintiff is a broker in burial rights. In the words of the brief for one of the appellees, he 'purchases burial rights from individuals who must sell because they cannot make use of the plots for themselves'. ¹ He resells such burial rights for a profit. He is licensed to engage in such an enterprise as required by statute (M.C.L.A. § 456.537; M.S.A. § 21.820(37)); and, after each such sale, he tenders 15% Of the net proceeds to the perpetual care fund of the relevant cemetery, also in compliance with statute (M.C.L.A. § 456.536; M.S.A. § 21.820(36)).

Plaintiff filed suit in the Wayne County Circuit Court challenging the constitutionality of each of these statutes (supra) on the ground that they violate the Equal Protection Clauses of the state and Federal Constitutions. Regarding the licensing statute, plaintiff argued that he is denied the equal protection of the laws because he must be licensed while cemetery employees who are engaged in selling burial rights need not be so licensed. We must first observe that cemetery employees are exempt from licensing only if their activity is 'not for additional compensation' (M.C.L.A. § 456.537; M.S.A. § 21.820(37)).

The right to the equal protection of the laws under the Fourteenth Amendment to the United States Constitution and under Article 1, Sections 1 and 2 of the Michigan Constitution of 1963 are congruent. Fox v. Employment Security Commission, 379 Mich. 579, 153 N.W.2d 644 (1967). A frequently quoted formulation of the applicable standard for evaluating statutes challenged on such grounds is found in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78--79, 31 S.Ct. 337, 340, 55 L.Ed. 369, 377 (1911), as follows:

'The rules by which this contention must be tested, as is shown by repeated decisions of this court, are these: 1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.' (Citations omitted.)

See also Gauthier v. Campbell, Wyant & Cannon Foundry Co., 360 Mich. 510, 514, 104 N.W.2d 182, 183--184 (1960), and Holland Motor Express, Inc. v. Michigan Employment Security Commission, 42 Mich.App. 19, 25, 201 N.W.2d 308, 310--311 (1972).

Judging this statute by that standard, we agree with the trial court that the plaintiff failed to meet his burden. We find a rational basis for the statute in that the Legislature may well have concluded that the protection afforded by licensing is necessary only when the salesman stands to make a personal gain on the transaction.

Plaintiff's challenge to the constitutionality of the...