Eastwood Park Amusement Co. v. Stark

• Decision Date: 18 May 1949
• Docket Number: No. 83.,83.
• Citation: 38 N.W.2d 77,325 Mich. 60
• Parties: EASTWOOD PARK AMUSEMENT CO. v. STARK et al.
• Court: Michigan Supreme Court

325 Mich. 60

38 N.W.2d 77

EASTWOOD PARK AMUSEMENT CO.

v.STARK et al.

No. 83.

Supreme Court of Michigan.

May 18, 1949.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Macomb County, in Chancery; Raymond L. Smith, Judge.

Suit by the Eastwood Park Amusement Company, a Michigan corporation, against Mildred Stark, Mayor, Betty Hays, councilwoman, Charles W. Yost, councilman, Walter Sullivan, councilman, George Stone, Sr., councilman, and the City of East Detroit, a Michigan municipal corporation, to restrain revocation of plaintiff's license the operate amusement park. From a decree dismissing the bill, the plaintiff appeals.

Decree in accordance with opinion.

Before the Entire Bench.

George A. Francis, St. Clair Shores. Wm. Henry Gallagher, Detroit, for appellant.

Carl B. Weymouth, East Detroit, for appellees.

BUTZEL, Justice.

Since 1927, Eastwood Park Amusement Company, a Michigan corporation, plaintiff, has operated an amusement park at the corner of Eight Mile Road and Gratiot Avenue in what was formerly the village of Halfway, Michigan, later incorporated as the city of East Detroit, Michigan. At that time the village of Halfway was a sparsely populated district but since has more than tripled in population, Eight Mile Road separates the city of Detroit from the city of East Detroit. The latter has become a city of many homes, some of which are across the road from the park and others in its immediate vicinity. Plaintiff secured licenses in accordance with the ordinances herein referred to.

In 1927 the village of Halfway enacted Ordinance No. 67 regulating amusement parks as well as other forms of entertainment. This ordinance was superseded in 1939 by Ordinance No. 49 of the city of East Detroit, pertinent portions of which are set forth in the margin.¹

The amusement park over the course of years represents an investment amounting to a very large sum, its assessed valuation for 1948 being in excess of $275,000. The large number of customers it attracted is shown by the fact that in 1947 the federal admission tax amounted to $81,500. The amusement park company itself and through its concessionaires carried on many activities. For many years prior to 1948, it held a liquor license which evidently was not renewed because of the opposition of the city council. There was included in the park's activities a roller coaster, also a contrivance that spun in the air and on which patrons took rides and was designated as a ‘moon rocket ride,’ and other rides. There were also a pennynickle arcade, a swimming pool, a roller skating rink, a ballroom, a midway freak show, et cetera. There were also a large number of various gambling devices openly conducted on the premises.

Evidently the conduct of the park became a source of annonyance and irritation to a very large number of the residents of the city and they strenuously objected to its continuance. A large number, however, favored the park as it employed several hundred persons and obviously brought many people to the city. Many meetings were held for the purpose of closing the park. It became a political issue. A large number of the residents believed that the park was demoralizing and a nuisance. The park was discussed at meetings of the parents-teachers association by Mildred Stark, the present mayor of the city, and a defendant herein. At some of the meetings 500 persons attended to protest against the continuance of the park's activities. Just prior to May 11, 1948, the police made arrests and confiscated gambling paraphernalia consisting of moving rubber balls having numbers on them and charts on which the player placed his money; another one where the player put his money on a number, a wheel was spun and if it came to rest at the number selected by the player, he would win. There was a ‘pan’ game of a somewhat similar character. From a reading of the testimony of plaintiff's own witnesses at the hearing in the lower court, there can be no question that continuous gambling was going on. Previous to the granting of the 1948 license officers of the corporation had been found guilty of violating the State laws forbidding gambling and had been heavily fined, notwithstanding the fact that plaintiff had disavowed any responsibility for gambling by its concessionaires. The claim was made that after the officers of plaintiff had pleaded guilty of the charge of gambling in the park, certain concessionaires had been told by the judge that they could continue gambling, provided customers were paid off with merchandise and not with money. There was no corroboration of this claim and we are not inclined to place any importance or credence whatsoever in it. The continuation of these gambling games even with the pay-off in merchandise instead of money is gambling. See Sproat-Temple Theatre Corp. v. Colonial Theatrical Enterprise, Inc., 276 Mich. 127, 267 N.W. 602, in which we cited Act No. 328, § 372, Pub.Acts 1931, Stat.Ann. § 28.604, which prohibits any lottery or gift enterprise within the State and the disposition of any property, real or personal, goods, chattels or merchandise, et cetera, by virtue of it, and provides punishment for violation thereof. For a very long period bingo games were conducted at the park by a concessionaire who paid $200 a week to plaintiff and a like sum to a well known organization for the use of its name as sponsor. Plaintiff claimed that charitable and other non-profit organizations were permitted to conduct bingo games with impunity. Even if this be true it does not in any way legalize bingo forbidden by law. Society of Good Neighbors v. Van Antwerp, Mayor of Detroit, 324 Mich. 22, 36 N.W.2d 308. We have given only a brief statement of some of the facts in the case as disclosed at the hearing.²

On May 12, 1948, Mildred Stark, mayor of the city of East Detroit, caused a notice of revocation to be served on plaintiff. It was stated therein that it was given in accordance with the authority vested in her by section 18 of the original ordinance of the village of Halfway and by section 18 of Ordinance No. 49 set forth in the margin. It specifically quoted the words thereof ‘a mayor may revoke any license already issued for good and satisfactory reasons.’ This was the only reason stated. Plaintiff immediately upon receiving the notice filed a bill of complaint to restrain the revocation, and the court issued a temporary restraining order effective until plaintiff had presented to the council its appeal from such order and the decision of the council had been filed with the court. Mrs. Stark, the mayor, the councilmen and the city of East Detroit were made defendants in the case. In the amended bill filed by plaintiff it is shown that a hearing was held before the full council and the mayor presented seventeen reasons why the license should be revoked. In the foregoing presentation of facts, we have only referred to a number of these reasons which, if true, would be sufficient reasons for revocation had proper notice been given. Counsel for plaintiff, who was present at the meeting of the council, spoke at length in opposition to the revocation for the reasons assigned therefor. The council by a majority vote of three to one, approved the action of the mayor in revoking the license. In the amended bill filed by plaintiff to restrain the revocation of the license, the city, its mayor and members of the council are made defendants. Defendants filed an answer claiming that the license was properly revoked and also plaintiff by acquiescence in the issuing of licenses could not now attack the constitutionality of the ordinance. The judge after a full hearing entered a decree dismissing the bill. Plaintiff appeals.

Reviewing the testimony de novo, we find that a revocation of the license would have been fully and amply justified had proper notice been given. In justice to plaintiff it should be stated that when confronted with the revocation, or the threat thereof, it did offer to correct some of the nuisance features in the conduct of the park and that of the crowd that patronized the park. Under section 20 of the ordinance, as set forth in the margin, licensees are required to deposit with the city weekly a sufficient sum to properly police the park under the control and direction of the city. The attorney for plaintiff offered, in accordance with the suggestion of the prosecuting attorney, to have the park provided with patrol cars and to pay for officers to patrol the streets and protect patrons who had to wait for buses and others, who were on the streets for several hours after the closing time of the park.

Plaintiff calls attention to the fact that the 1948 license was issued after the officers of plaintiff had been found guilty of gambling by the circuit court for the county of Macomb and claims, therefore, defendants should not have revoked the license for previous offenses. In Powers v. Secretary of State, 312 Mich. 315, 20 N.W.2d 203, we held the secretary of State is not estopped to deny license to applicant automobile dealer for one year for reasons occurring prior to that year even if known by the secretary of State previous to issuance of former license. In that case the court upheld the secretary of State in refusing to renew the license of a dealer in automobiles because of the findings of fact by the secretary of State as to the past acts of the dealer. The testimony shows that gambling paraphernalia was seized but three days before the date of the notice of revocation in the instant case.

Plaintiff's main claim is that the revocation is of no force or effect because the notice stated that it was based upon section 18 of the ordinance of 1939, as set forth in the margin, and the notice quoted the clause in section 18 that the mayor may revoke any license already issued for ‘good and satisfactory reasons.’ Attention is called to the fact that arbitrary power may not be conferred upon public officers by ordinances and these very same...