Johnson v. Figy

• Citation: 314 Mich. 548,22 N.W.2d 893
• Decision Date: 13 May 1946
• Docket Number: No. 27.,27.
• Parties: JOHNSON v. FIGY, Com'r of Agriculture.
• Court: Supreme Court of Michigan

314 Mich. 548

22 N.W.2d 893

JOHNSON

v.FIGY, Com'r of Agriculture.

No. 27.

Supreme Court of Michigan.

May 13, 1946.

Appeal (in the Nature of Certiorari) from Circuit Court, Wayne County; Guy A. Miller, Judge.

Certiorari by George A. Johnson against Charles Figy, successor in office to Leo V. Card, Commissioner of Agriculture, to review an order of commissioner cancelling certain milk licenses. From a judgment vacating the order of the commissioner, commissioner appeals.

Remanded with directions to vacate the order in part and to affirm the order in part.

Before the Entire Bench.

John R. Dethmers, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Walter A. Rice, Asst. Atty. Gen., for defendant-appellant.

Harold Goodman, of Detroit, for plaintiff-appellee.

CARR, Justice.

This case involves the constitutionality of certain provisions of Act No. 169, Pub.Acts 1929, as amended by Act No. 48, Pub.Acts 1931, and Act No. 236, Pub.Acts 1935, Comp.Laws 1929, § 5307 et seq., Comp.Laws Supp.1935, §§ 5316-1, 5317, 5319, Stat.Ann. § 12.601 et seq. The validity of action by the State commissioner of agriculture under the provisions of said act is also in issue. Said measure is entitled:

‘An act to regulate the production, handling, sale and disposition of milk, cream and other dairy products; to define different kinds of dairy products and prescribe standards for the same; to provide for the payment for milk and cream semi-monthly; to provide for licenses in certain instances and for the revocation thereof and to fix penalties for the violation of this act and to repeal certain acts.’

In accordance with the general purpose as indicated in the title the act makes provision for certain standards to be observed in the production and sale of dairy products and for the granting of licenses by the State commissioner of agriculture to applicants desiring to engage in the business of selling milk or cream. Provision is also made for the revocation of such licenses for cause, for the giving of written notice of such proposed revocation, appointing a time and place of hearing, and for appeal by way of certiorari in certain cases. Section 10-a, added by the amendment of 1935, reads as follows:

‘Every person, firm or corporation purchasing cream or milk for the purposes of reselling or of manufacturing the same into other products shall pay the producer, unless otherwise provided by a written contract, semi-monthly; payment shall be made on or before the first day of each and every month for all cream or milk received prior to the fifteenth day of the preceding month, and payment shall be made on or before the fifteenth day of each and every month for all cream or milk received prior to the first day of the same month. Whoever violates the provisions of this section shall be subjected to revocation of his license as provided in this act.’

Prior to institution of the proceeding out of which this case arises, plaintiff held a number of licenses, referred to as dairy plant licenses and milk wagon licenses, issued to him under the statute by the commissioner of agriculture. Under date of November 19, 1942, the commissioner, the predecessor in office of the appellant, issued a notice, directed to plaintiff, that a hearing would be had on December 4, 1942, at a designated place in the city of Detroit, to determine whether certain licenses specified therein should be revoked because of plaintiff's alleged failure to comply with sec. 10-a, above quoted, and also because of the sale of milk containing less than three per cent butterfat, in violation of sec. 2 of the act. Objection was made by defendant's counsel to the sufficiency of this notice and, pursuant to stipulation, an amended notice was issued by the commissioner under date of December 7, 1942. Said amended notice specified particular instances of the violation of sec. 10-a by plaintiff and also the date and place of sale of the milk referred to in the earlier notice. On December 18, 1942, a hearing was conducted by the commissioner under the amended notice, at which plaintiff was represented by counsel. Testimony in support of the claims set forth in the notice of hearing was taken and plaintiff's counsel also offered proofs.

Following the hearing, and under date of December 29, 1942, the commissioner of agriculture made an order revoking certain specified dairy plant and milk wagon licenses held by plaintiff. Three of the licenses ordered revoked, Nos. 81, 275 and 1018, were not specified in the notice of hearing as originally served but were added by amendment at the opening of the hearing before the commissioner. Following the issuance of the order of revocation plaintiff made application to the circuit court of Wayne county for a writ of certiorari, filing his petition on December 29, 1942, and thereupon an order was made for hearing on said petition on January 8, 1943. The writ was issued on January 11th, following. A subsequent hearing before the court resulted in a judgment vacating the order of the commissioner of agriculture. The trial court held that sec. 10-a, above quoted, is unconstitutional for the following reasons:

‘(1) Because it is an exercise of the police power, is unreasonable, and, therefore, amounts to a deprivation of property without due process of law.

‘(2) That in many of its aspects its operation necessarily depends upon statutes which in and of themselves are an unlawful delegation of legislative authority.’

The trial court was further of the opinion that the proceedings actually held before the commissioner of agriculture did not comply with the constitutional guaranties of due process of law. From the judgment entered in the circuit court defendant has appealed. The attorney general, appearing for defendant, has filed a brief asserting validity of the provisions of the statute involved in the case, and also claiming that the proceeding before the commissioner of agriculture conformed to the basic requirements for due process of law. No brief has been filed on behalf of plaintiff.

At the hearing on plaintiff's application to the circuit court for writ of certiorari, held January 8, 1943, defendant moved to dismiss the proceeding because plaintiff had failed to procure the issuance of a writ within a period of ten days following the order of the commissioner of agriculture. The motion was denied and defendant now claims that such denial was erroneous. The provision of the statute governing the appeal is found in sec. 13 of the act, reading as follows:

‘Any person, firm, association, or corporation who feels aggrieved at the decision of the commissioner in refusing or revoking a license, may appeal from said decision within ten days by writ of certiorari to the circuit court of the county in which such person resides, or in case of a firm, association or corporation, the county in which is located its principal place of business.’

It is claimed in substance that the statute must be construed as requiring the issuance of the writ of certiorari within the 10-day period following the decision of the commissioner of agriculture. With this interpretation of the statute we are not in accord. We think it was the intention of the legislature to require that the application for the writ should be submitted to the circuit court within the time limited, but that it was not intended to make the right of review contingent on action by said court before the expiration of the 10-day period. In the instant case plaintiff filed his application on the same day that the order of the commissioner was issued. It was set for hearing on the tenth day thereafter and the writ finally issued three days later. Plaintiff acted with the measure of diligence required by the statute and the motion to dismiss was properly denied.

The principal question in the case arises from the holding of the trial court that sec. 10-a, above quoted, is unconstitutional. In determining this question every reasonable doubt and intendment must be resolved in favor of the legislative action. In the early case of Sears v. Cottrell, 5 Mich. 251 at page 259, it was said:

‘No rule of construction is better settled in this country, both upon principle and authority, than that the Acts of a State Legislature are to be presumed constitutional until the contrary is shown; and it is only when they manifestly infringe some provision of the Constitution that they can be declared void for that reason. In cases of doubt, every possible presumption, not clearly inconsistent with the language and the subject-matter, is to be made in favor of the constitutionality of the Act.

‘The power of declaring laws unconstitutional should be exercised with extreme caution, and never where serious doubt exists as to the conflict.’

This rule has been repeatedly quoted and applied in subsequent decisions in this State. Bowerman v. Sheehan, 242 Mich. 95, 219 N.W. 69, 61 A.L.R. 859;Cady v. City of Detroit, 289 Mich. 499, 286 N.W. 805;In re Phillips, 305 Mich. 636, 9 N.W.2d 872.

Under the police power the state may regulate the production, sale and distribution of milk, cream and other dairy products. The protection of the public health is involved. Milk is a necessary article of food and the public welfare is served by measures reasonably designed to encourage production and sale for consumption.In the enactment of Act No. 236 of 1935, incorporating sec. 10-a in the prior statute, it is fair to assume that the legislature had in mind encouraging the production and sale of milk and cream by protecting those engaged in the business from financial loss due to inability to collect for products sold. Parties desiring to avoid the mandatory provisions of the statute may do so by taking advantage of the provision of sec. 10-a with reference to written contracts. Under such provision the parties may, by written agreement, make such arrangement as to payment as may be mutually satisfactory.

The validity of statutory...