Garfield Tp. v. Young, 11

• Decision Date: 04 October 1954
• Docket Number: No. 11,11
• Parties: The TOWNSHIP OF GARFIELD, Plaintiff and Appellant, v. Sol H. YOUNG, d/b/a Sol H. Young Iron & Metal Company, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 85

66 N.W.2d 85

340 Mich. 616

The TOWNSHIP OF GARFIELD, Plaintiff and Appellant, v. Sol H. YOUNG, d/b/a Sol H. Young Iron & Metal Company,

Defendant and Appellee.

No. 11.

Supreme Court of Michigan.

Oct. 4, 1954.

Harry T. Running, Traverse City, for the Township of Garfield, appellant.

Charles H. Menmuir, Traverse City, for appellee.

Before the Entire Bench.

BOYLES, Justice.

Garfield township, in Grand Traverse county, filed a bill of complaint in the circuit court for that county to enjoin the defendant from instituting or operating a junk yard or place to dismantle automobiles on certain property in said township. The defendant moved to dismiss for certain reasons hereinafter referred to. The trial court heard and granted the motion and the township appeals.

The defendant claimed, and still does, that the township ordinance on which appellant bases its case, in requiring that one who desires to engage in the operation of a junk yard or place for dismantling automobiles must comply with certain of its requirements when petitioning the township board for a license so to do, is unconstitutional. Defendant was denied a license because his application was not accompanied by a consent or approval signed by 80% of certain adjacent landowners. In support of his motion to dismiss, the defendant claims that the regulation in said ordinance which requires one who petitions for a license to operate such ajunk yard to accompany said application with a petition by 80% of adjacent property owners within a certain radius from the proposed location, plus 1/2 mile along the main highway, is unconstitutional, because it constitutes an unlawful delegation of authority. Defendant also claims that the township regulation in said ordinance is unconstitutional which provides that the township board shall decide, after a public hearing, whether there is just cause for revoking a license upon the filing of a petition by 80% of such adjacent property owners.

The opinion of the trial court in the instant case was filed December 1, 1952, and the order dismissing the bill of complaint entered December 8, 1952.

An examination of the ordinance here under consideration establishes that it is substantially the same as the ordinance considered by this Court in People v. Gottlieb, 337 Mich. 276, 59 N.W.2d 289, decided June 22, 1953. These same claims of unconstitutionality were made by the defendant in that case and decided adversely to such claims. We are not impressed by the reasons whereby the defendant here attempts to distinguish that decision. It controls.

Defendant claims the township board had no power to enact said ordinance. Admittedly, the plaintiff township has less than 10,000 population. The trial court, among other reasons for dismissing the bill of complaint, relied on P.A.1945, No. 246, C.L.1948, § 41.181, under which township boards in townships having over 10,000 population may adopt ordinances and regulations under the police power. ¹ But the ordinance here under consideration was passed by the township board under P.A.1929, No. 12, as amended by P.A.1935, No. 34, C.L.1948, § 445.451 et seq., Stat. Ann. § 19.731 et seq., which specifically authorizes township boards, without limitation as to population, to license and regulate junk yards and places for dismantling automobiles. The population limit does not apply to this case. See, also, Netzel v. Township Board of Waterford Township, 267 Mich. 220, 255 N.W. 314, where the Court held (syllabus):

'Passage of act giving township board power to license and regulate automobile junk yards and dismantling places is...