Levy v. City of Pontiac
| Decision Date | 05 September 1951 |
| Docket Number | No. 40,40 |
| Citation | 331 Mich. 100,49 N.W.2d 80 |
| Parties | LEVY et al. v. CITY OF PONTIAC et al. |
| Court | Michigan Supreme Court |
William A. Ewart, Pontiac, for City of Pontiac, defendant and appellant.
Voorhies, Long, Ryan & McNair, Detroit, for intervening defendant.
Glenn C. Gillespie, Pontiac, for plaintiffs and appellees.
Before the Entire Bench
The City of Pontiac has appealed from a decree entered in the circuit court for the county of Oakland, based upon an opinion rendered by the three judges of that circuit. The trial judge held that the hereinafter quoted portion of section 5 of Ordinance No. 985, adopted on August 26, 1941, was an improper exercise of the police power having 'no relation to the public health, morals, welfare or safety.'
This portion of the section reads: 'No sign or placard stating the price or prices of gasoline other than such signs or placards as hereinabove provided [signs not larger than 12 by 12 inches attached to pumps or dispensing devices] shall be posted or maintained on the premises on which said gasoline is sold or offered for sale.'
The court held that other signs on the premises larger than those required on gasoline pumps are neither deceptive nor fraudulent, and that the right truthfully advertise the price at which gasoline is sold on service station premises is a legitimate and valuable incident to such business.
The court found that the quoted provision of the ordinance is a deprivation of property without due process of law, constitutes an unlawful interference with private business, and is null and void because contrary to the Fourteenth Amendment to the Constitution of the United States and article 2, section 4, of the Constitution of the State of Michigan (1908). The city was permanently restrained from enforcing or attempting to enforce the above quoted portion of section 5 of the ordinance.
Plaintiff co-partnership, Oakland County Gas & Oil Company, is a retail and wholesale dealer in gasoline and other petroleum products. It operates nine retail gasoline service and filling stations in Oakland and Macomb counties. The company purchases gasoline at the refinery and hauls it to its own stations, thus effecting a saving of about four cents a gallon. This saving and others due to its method of conducting business are passed on to the consumer by means of prices less than those charged by other gasoline stations. The gasoline sold compares favorably in octane rating and quality with that sold in the local market.
Appellant city argues that the ordinance is a valid exercise of its police power; that it bears a reasonable relation to the public peace, health, morals, welfare and safety in that it prevents fraudulent and deceptive advertising; that it prevents small gasoline station operators from being squeezed out as a result of monopolistic practices, and that the signs permitted (12 by 12 inches in size) are ample to inform the public of the prices at which plaintiff sells gasoline.
The controlling question is whether the controversial portion of the ordinance bears a reasonable relation to the public peace, health, morals, welfare and safety. Incidental thereto is the question of whether the retailing of gasoline per se is a business so affected with the public interest as to warrant the exercise of the police power, without a showing of a particular evil so affecting the public.
This latter question was answered in Williams v. Standard Oil Co., 278 U.S. 235, 49 S.Ct. 115, 116, 73 L.Ed. 287, 60 A.L.R. 596, where the court held there could be no price regulation of gasoline because it is not 'affected with a public interest,' and that its sale is the same as the merchandising of any other commodity.
It is within the police power to prohibit false, fraudulent or misleading advertising. Jasnowski v. Judge of Recorder's Court, 192 Mich. 139, 158 N.W. 229, and People v. Austin, 301 Mich. 456, 3 N.W.2d 841.
The right to advertise one's merchandise is, subject to the police power mentioned, within the right to liberty and property. The denial of such right is a taking of property without due process of law. Ritholz v. City of Detroit, 308 Mich. 258, 13 N.W.2d 283.
Business practices, such as the one against which the ordinance in question is directed, have...
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