Eanes v. City of Detroit

• Citation: 279 Mich. 531,272 N.W. 896
• Decision Date: 29 April 1937
• Docket Number: No. 63.,63.
• Parties: EANES et al. v. CITY OF DETROIT et al.
• Court: Supreme Court of Michigan

279 Mich. 531

272 N.W. 896

EANES et al.

v.CITY OF DETROIT et al.

No. 63.

Supreme Court of Michigan.

April 29, 1937.

Suit by William O. Eanes and others against the City of Detroit and others. From a decree for plaintiffs, defendants appeal.

Modified and, as modified, affirmed.

BUSHNELL and POTTER, JJ., dissenting.

Appeal from Circuit Court, Wayne County, in Chancery; George W. Sample, Judge.

Argued before the Entire Bench.

Raymond J. Kelly, Corp. Counsel, and Nathaniel H. Goldstick, Asst. Corp. Counsel, both of Detroit, for appellants.

Lewis and Watkins, of Detroit (James K. Watkins and Clarence J. Boldt, Jr., both of Detroit, of counsel), for appellees.

WIEST, Justice.

This is review of a decree of the Wayne circuit court enjoining enforcement of an ordinance of the city of Detroit providing for the licensing of barbers and the regulation and inspection of barbershops, inclusive of open shop hours. The ordinance prohibits operation of a barbershop in the city without a license issued by the mayor; requires a yearly application to the city department of health, stating the name of the applicant, location of shop, date of registration with the state board of examiners of barbers, and containing an agreement to conform to the rules of the state department of health, and the state board of examiners of barbers; fixes the license fee at $3, and requires a shop to be in a clean, well lighted and ventilated room, and to have running hot and cold water, sewage connection, and ample toilet accommodations. It also provides that: ‘All barber shops operating in the City of Detroit shall be open only between eight o'clock in the morning and seven o'clock in the evening; except that on Saturdays and the day preceding any legal holiday, barber shops may remain open until nine o'clock in the evening.’

The penalty for any violation is a fine not to exceed $100 or imprisonment for not more than ninety days, or both fine and imprisonment.

The statutory regulations of barbers and barbershops (Comp.Laws 1929, §§ 8691-8714, Mason's 1935 Supp. §§ 8700 to 8711-5) do not fix the open hours of barbershops, but otherwise are quite similar to the provisions of the ordinance. At least there is no conflict. The state having entered the field, may the city, by ordinance, duplicate or complement statutory regulations?

In National Amusement Co. v. Johnson, 270 Mich. 613, 259 N.W. 342, 343, we quoted the following from 43 C.J. p. 218: “Where no conflict exists, both laws stand. * * * As a general rule, additional regulation to that of a state law does not constitute a conflict therewith.” See, also, Milwaukee v. Childs Co., 195 Wis. 148, 217 N.W. 703.

This brings us to consideration of the provision of the ordinance fixing open shop hours. The question of municipal power to fix the hours during which barbershops may operate is not new. The scheme of the ordinance in fixing open hours for barbershops has been held void by many judicial pronouncements. Some few adjudications sustain the power. Falco v. Atlantic City, 99 N.J.Law, 19, 122 A. 610;Wilson v. City of Zanesville, 130 Ohio St. 286, 199 N.E. 187. But in weight, number, and reasoning the cases to the contrary are overwhelming.

We cite and quote from a few of the cases.

In State ex rel. Newman v. City of Laramie, 40 Wyo. 74, 275 P. 106, 107, a city ordinance fixing open hours for barbershops was quite like that of the ordinance at bar, and was enacted under the following statutory authority: “Power and authority is hereby granted to each incorporated city or town within the state, to license, regulate and control barber shops.” The court held the fixing of hours void. The reasoning in that case answers the argument in behalf of the city in this case and points out the inapplicability of the holding in Falco v. Atlantic City, 99 N.J.Law, 19, 122 A. 610, supra,

In Ganley v. Claeys, 2 Cal.(2d) 266, 40 P.(2d) 817, a city ordinance closed barbershops from 6:30 p. m. until 8 a. m., except Saturdays and days preceding specified holidays. The court held the ordinance void, as having no reasonable relation to the assigned purpose of public health and pointed to the adequate statutory regulations to that end.

In this state the Legislature has provided adequate statutory regulations relative to sanitation and the public health.

In State ex rel. Pavlik v. Johannes, 194 Minn. 10, 259 N.W. 537, 541, the city ordinance closed barbershops from 6:30 p. m. until 8 a. m., except Saturdays and days preceding holidays. The court held the ordinance void, and we quote from the opinion:

‘In so far as such ordinances may provide reasonable sanitary standards, regulation, and inspection, the public interest is involved and is vitally affected. There it stops, and private rights need yield no farther. The public interest is not further involved. We hold that the ordinance before us, in so far as it fixes the hours when barber shops may be open for business, is invalid as in violation of the due process clauses of our own and the Federal Constitution. That feature of the ordinance bears no legitimate or reasonable relation to the public health or general welfare.

‘If to serve their own purpose those engaged in the barber business desire to effect what is sought to be effected by this ordinance, they will have to accomplish it by friendly arrangement within the membership of those engaged in the business and not by resort to compulsory legislation.’

It was also said:

‘One of appellant's principal contentions is that the restriction here under consideration is necessary to protect barbers and their employees from long hours of labor. The complete answer to that is that most shops are now successfully operating under an eight-hour day for employees and that the master barbers are subject to the same hours. No limitation of business hours is required nor does such limitation assist in enforcing short hours for employees. If hours of employment are now staggered over a ten and one-half or eleven and one-half hour day, they may be as readily staggered over any other arrangement.

‘Closing shops at an early hour can in no way facilitate sanitary inspection. The shops may readily be inspected at any time and need not be closed for that purpose. Upon what ground, then, can we justify this interference with the freedom of the individual to operate his business in his own way and according to his own ideas of good business?

‘Eight times have such ordinances been before the courts of last resort in this country, and seven times have they been held invalid as unjustifiable attempts to exercise the police power.’

The ordinance at bar goes beyond regulation of hours one person may work for another. As said of a like ordinance in Knight v. Johns, 161 Miss. 519, 137 So. 509, 510: ‘A barber's working hours can be effectually regulated, without closing the shop in which he works, by an ordinance specifically designating his hours of work. To close the shop, therefore, in order to prevent overwork by barbers therein, unnecessarily interferes with its operation, and is unreasonable.’

That case also answers the claim of need of fixing open shop hours for the convenience of sanitary inspectors.

In support of ordinances of like character, the case of Falco v. Atlantic City, supra, has frequently been cited and seldom followed. That case, in general application, is contrary to the great weight of authority.

In Patton v. Bellingham, 179 Wash. 566, 38 P.(2d) 364, 366, 98 A.L.R. 1076, a statute delegated power to municipalities of certain classes to fix, by ordinance, the hours and time of opening and closing barber shops on weekdays, and the city of Bellingham enacted an ordinance making it unlawful to open a barbershop earlier than 8 o'clock a. m., or to close the same later than 6 o'clock p. m. on weekdays, other than Saturdays, or to close it later than 7 o'clock p. m. on Saturdays or days preceding a holiday. The court said:

‘The question then presents itself here whether the provision with reference to the time of opening and closing barber shops is reasonable and proper for the protection of the health and general welfare of the public, or whether it is unreasonable and arbitrary and an unlawful interference with the rights of the individual. * * *

‘The occupation of barbering is a lawful business, and, so far from being an obnoxious one, it is now considered wellnigh indispensable. It may be conceded, as we have already conceded, that its relation to the public is such as to render it amenable to proper regulation, to the end that the public may be protected against the spread of communicable diseases and unsanitary practices. In so far as the ordinance seeks to require that such shops shall be operated in a clean and sanitary manner, and by clean and competent barbers, it is a wholesome measure and a valid exercise of the police power.’

The court held: ‘In our opinion, the provisions of the ordinance requiring the shops to close at specified hours bear no reasonable relation to the public health or general welfare,’ and that the ordinance was unreasonable and arbitrary, and consequently void.

Extracts from the opinion of Mr. Justice Field in Soon Hing v. Crowley, 113 U.S. 703, 5 S.Ct. 730, 733, 28 L.Ed. 1145, have been cited to other courts in support of ordinances like the one at bar. The case, when read, carries no such support. The reason there was a public one, made necessary on account of fire hazards from laundries operated in the nighttime. The court stated:

‘And it is of the utmost consequence in a city subject, as San Francisco is, the greater part of the year to high winds, and composed principally within the limits designated to wooden buildings, that regulations of a strict character should be adopted to prevent the possibility of fires. That occupations in which continuous fires are necessary should cease at certain hours of the night would seem to be under such circumstances a reasonable regulation...