Irishman's Lot, Inc. v. Cleary

• Decision Date: 18 February 1954
• Docket Number: No. 56,56
• Citation: 338 Mich. 662,62 N.W.2d 668
• Parties: IRISHMAN'S LOT, Inc. v. CLEARY, Secretary of State et al.
• Court: Michigan Supreme Court

Page 668

62 N.W.2d 668

338 Mich. 662

IRISHMAN'S LOT, Inc. v. CLEARY, Secretary of State et al.

No. 56.

Supreme Court of Michigan.

Feb. 18, 1954.

Francis W. McCauley, Detroit, for plaintiff and appellant, Wayne A. Anderson, Detroit, of counsel.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Daniel J. O'Hara and Gregory H. Frederick, Asst. Attys. Gen., for defendants.

Colombo, Colombo & Colombo, Anthony A. Vermeulen, Frederick Colombo, Detroit, for Detroit Auto Dealers' Assn.

Before the Entire Bench.

SHARPE, Justice.

This is a suit to test the constitutionality of Act No. 66 of P.A.1953, C.L.1948, §§ 435.251, 435.254, Stat.Ann.1953 Cum.Supp. §§ 9.2701, 9.2704. The act provides:

'Sec. 1. It shall be unlawful for any person, firm or corporation to engage in the business of buying, selling, trading or exchanging new, used or second-hand motor vehicles or offering to buy, sell, trade or exchange, or participate in the negotiation thereof, or attempt to buy, sell, trade or exchange any motor vehicle or interest therein, or of any written instrument pertaining thereto, on the first day of the week, commonly called Sunday. * * *

'Sec. 4. This act shall not apply to counties having a population under 130,000 inhabitants according to the latest or each succeeding federal decennial census. This act is ordered to take immediate effect.'

Plaintiff charges that the above act violates the provisions of § 30, Article V, of the Michigan Constitution, which provides:

'The Legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act, excepting acts repealing local or special acts in effect January 1, 1909 and receiving a 2/3 vote of the legislature shall take effect until approved by a majority of the electors voting thereon in the district to be affected.'

The facts have been stipulated and in substance are as follows:

'1. Eight counties are presently within the population designation of the bill, four more being between 115,000 and 130,000 population.

'2. The eight counties included under the bill make 70% to 75% of the type of sale prohibited by the statute.

'3. The eight counties have 41% of the dealers in the State, 60% of the State's population. Cars sold in these counties in 1951 was 73%, in 1952, 72.9%, and for the first four months of 1953, 74.4% of automobiles sold in the State of Michigan. The addition of the four counties over 115,000 but less than 130,000 shows that the 12 counties have consistently accounted for nearly 80% of all sales in the State of Michigan.'

Plaintiff also urges that inasmuch as the act does not include a provision for a popular referendum in the affected counties it cannot be sustained as special or local legislation, and that where the exercise of police power is based upon population classification, there must be a reasonable relation to the classification and the purpose of the statute. Plaintiff relies on Attorney General ex rel. Dingeman v. Lacy, 180 Mich. 329, 146 N.W. 871, and Mulloy v. Wayne County Board of Supervisors, 246 Mich. 632, 225 N.W. 615. In the Lacy case, supra [180 Mich. 329, 146 N.W. 876], the act in question created the office of judge of the court of domestic relations. In holding the act unconstitutional, we said 'The act is clearly unconstitutional, because it in terms (section 10) deprives the probate court of jurisdiction in certain cases of juvenile delinquents, and dependents, which jurisdiction is expressly conferred upon the probate courts by section 13, art. 7, of the Constitution.

'The act (section 4) is plainly in conflict with the last-named section, in that it deprives the circuit court of the county of Wayne, or at least the other judges thereof, of appellate jurisdiction in certain enumerated cases. This the Legislature may not do. People ex rel. Allen v. Kent Circuit Judge, 37 Mich. 474; People ex rel. Heath v. Kent Circuit Judge, 37 Mich. 372. Circuit courts are constitutional courts, and the jurisdiction conferred by the Constitution cannot be diminished by legislative enactment. Nichols v. Judge of Superior Court, 130 Mich. 187, 89 N.W. 691, * * *, and cases cited.

'The court of domestic relations is created by legislative enactment. A judge of that court cannot lawfully be clothed with a jurisdiction conferred by the Constitution upon a constitutional officer. State [ex rel. Crawford] v. Hastings, 10 Wis. 525; Ex parte Corliss, 16 N.D. 470, 114 N.W. 962. See, also, People ex rel. Allen v. Kent Circuit Judge, supra; Allor v. Wayne County Auditors, 43 Mich. 76, 4 N.W. 492. * * *'

We also said, 'A consideration of all the cases cited, as well as many others, convinces us that a classification by population can never be sustained where it is, as in the case at bar, a manifest subterfuge.' In the Mulloy case, supra, an action was instituted to enjoin the board of supervisors of Wayne county from instituting civil service among certain employees under the provisions of Act No. 390, P.A.1927. The act in question pertains to counties having a population of 300,000. The act does not make any provisions for counties that may later have a population of 300,000. At the time the act became a law, only Wayne county had the required population. We there said:

'It evidently was framed for no other county than the one then containing a population in excess of 300,000, and was not intended to become operative in other counties as they reached the required population, otherwise some method and some time would have been specified by which the act could be put in force in these other counties. * * *

"The classification must be based upon substantial and real differences in the classes, which are germane to the purpose of the law and reasonably suggest the propriety of substantially different legislation, the legislation must apply to each member of the class, and the classification must not be based on existing circumstances only, but must be so framed as to include in the class additional members as fast as they acquire the characteristics of the class.' Bingham v. Board of Supervisors, 127 Wis. 344, 106 N.W. 1071.

"The classification should be prospective, calculated to embrace any change in population or circumstances, and should be complete, covering all kinds of subjects dealt with.' 36 Cyc. 1006.' [246 Mich. 632, 225 N.W. 616.]

It is fundamental that one asserting the unconstitutionality of a statute has the burden of proving such contention, see Detroit International Bridge Co. v. Corporation Tax Appeal Board, 287 U.S. 295, 53 S.Ct. 137, 77 L.Ed. 314. We have sustained legislation as being general and not special where it would apply to all counties which in the future would attain the designated population, see People v. Brazee, 183 Mich. 259, 149 N.W. 1053, L.R.A.1916E, 1146, and Hayes v. Auditor General, 184 Mich. 39, 150 N.W. 331. In Sullivan v. Graham, 336 Mich. 65, 57 N.W.2d 447, 449, we had occasion to construe Act No. 311, P.A.1939, as amended by P.A.1945, No. 315, C.L. 1948 § § 338.703, 338.704, 338.720, Stat.Ann.1949 Cum.Supp. §§ 18.85(3), 18.85(4) and 18.85(20). This act in part provided...