Hyma v. Seeger

• Decision Date: 20 March 1926
• Docket Number: No. 105.,105.
• Citation: 207 N.W. 834,233 Mich. 659
• Parties: HYMA v. SEEGER et al.
• Court: Michigan Supreme Court

233 Mich. 659

207 N.W. 834

HYMA

v.SEEGER et al.

No. 105.

Supreme Court of Michigan.

March 20, 1926.

Certiorari to Superior Court of Grand Rapids.

Mandamus by Abe Hyma against Ralph E. Seeger and the City Commission of Grand Rapids. Judgment for plaintiff, awarding a peremptory writ, and defendants bring certiorari. Judgment reversed.

Argued before BIRD, C. J., and SHARPE, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ.Ganson Taggart and Charles A. Watt, both of Grand Rapids, for appellants.

John J. Smolenski, of Grand Rapids, for appellee.

McDONALD, J.

The plaintiff made application to the city commission of Grand Rapids for a license to construct a gasoline filling station at the corner of Roberts court and Grandville avenue under an ordinance which, so far as applicable, reads as follows:

‘Sec. 3. No license shall be granted for any such filling station within 300 feet of any school, church, theatre, park or other place of public assembly, nor in any location where, by reason of traffic conditions or fire explosive hazard, a filling station would imperil the public safety.’

When the application was heard before the commission, the records of its proceedings show that it was denied by the adoption of the following motion:

‘Commissioner Karel moved that the application of A. Hyma for a drive-in station be denied on the ground that the locating of a filling drivein station at that point would be a menace to, and would imperil, public safety by reason of traffic conditions.’

Feeling aggrieved at the action of the commission, the plaintiff began mandamus proceedings in the superior court of Grand Rapids, with the result that the writ was issued requiring the building inspector and the city commission to grant the permit. The defendants seek a review of these proceedings by certiorari from this court.

The principal question in issue involves a determination of the validity of that portion of the ordinance which authorizes the city commission to refuse a permit for the construction of a gasoline station ‘in any location where, by reason of traffic conditions or fire explosive hazard, a filling station would imperil the public safety.’

The trial judge took the view that this portion of the ordinance is invalid, because, as he says, it lays down no definite rule by which the city commission can determine what traffic conditions render a gasoline station a peril to the public safety, and that without defining the conditions more specifically in the ordinance the granting or refusing of a license is left to the ‘whim and caprice’ of the commission.

We think that the court has taken too narrow a view of the matter. The ordinance does not leave the granting or refusal of a license to the arbitrary will of the commissioners. It does not merely provide that they shall determine the character of the location as to the public safety. It does that and more. It gives them a basis upon which they must make their determination. It directs them to consider the traffic conditions. It is true that it does not specify what condition of traffic would render the location of a gasoline station dangerous to the public. It would not be practical to do...