Mutchall v. City of Kalamazoo

• Decision Date: 17 December 1948
• Docket Number: No. 26.,26.
• Citation: 323 Mich. 215,35 N.W.2d 245
• Parties: MUTCHALL v. CITY OF KALAMAZOO et al.
• Court: Michigan Supreme Court

323 Mich. 215

35 N.W.2d 245

MUTCHALL

v.CITY OF KALAMAZOO et al.

No. 26.

Supreme Court of Michigan.

Dec. 17, 1948.

Appeal from Circuit Court, Kalamazoo County, in Chancery; John W. Simpson, Judge.

Action by Edward Mutchall against the City of Kalamazoo and others for a declaration of the invalidity of an ordinance regulating bottle clubs. From a decree sustaining the ordinance, plaintiff appeals.

Affirmed.

Before the Entire Bench.

James B. Stanley, of Kalamazoo, for appellant.

Richard H. Paulson, of Kalamazoo, for appellees.

BUTZEL, Justice.

Edward Mutchall, plaintiff is the lessor of premises and buildings with part of its equipment and furniture in Kalamazoo, Michigan. He has been conducting a socalled club or business on said premises under the trade name of F. & H. Club, which name he registered with the county clerk. He alleges that only members of the club are permitted to patronize and enjoy the facilities and accommodations thereof. In the nature of an offer to those desiring to become members, he has filed in the club an instrument in writing signed by him and styled a ‘Declaration of Organization.’ It provides that no intoxicating liquors shall be sold on the premises, but that club members shall be entitled and permitted to bring to the building on said premises lawful intoxicating liquors, that they have a lawful right to possess in this State. He agrees to provide a suitable place within the premises for the safekeeping of such liquors and to designate in the proper manner the name of the club member to whom the liquors belong. Each member under the declaration is entitled to the use and consumption of his own liquor so held on the premises for safekeeping in such manner as he desires, subject always to such reasonable charge for services and mix as may be determined by plaintiff and the board of control to be necessary and proper for the successful operation of the restaurant venture. The approved pricelist for such service and mix shall be made available to the club members and in the case of any extraordinary mixes or services, plaintiff shall make a reasonable charge commensurate with the usual charge established by him and the board of control. A further article in said declaration provides that plaintiff shall serve food and meals together with nonintoxicating drinks to such club members in the quantity, taste and style as shall be in accordance with the ‘epicurean’ fancies of the club members.

Plaintiff in his bill of complaint does not show how the so-called board of control is appointed, elected or removed. He alleges that he does furnish the building wherein the drinking of alcoholic liquors is indulged in by persons not the owners, lessees or licensees of said premises or by those who are not gratuitous guests of the plaintiff, and he alleges that the premises are not subject to the provisions of the Michigan liquor control act, but that plaintiff furnishes for consumption the foods and beverages and allows the drinking of alcoholic liquors by persons paying for such foods or beverages.

He further alleges that he has 145 members in good standing in the club. He further shows that from the hours of 2 a. m. to 9 a. m. on week days the gross sales of food, beverages and mixes which may be consumed with alcoholic beverages average $60, and the gross sales on Sundays from 2 a. m. until 12 midnight from the same sources average $50 each Sunday. He further alleges he allows the drinking of alcoholic liquors by persons paying for such food and beverages. Plaintiff runs what is commonly known as a ‘bottle club.’ He maintains that such business in no way is under the control of the State liquor commission, that he is immune from any statute or regulation of the State liquor commission as well as from the operations of the ordinance of the city of Kalamazoo, which is the subject of this lawsuit.

The city of Kalamazoo on March 8, 1948, adopted an ordinance to become effective on May 1st, 1948, known as Ordinance No. 244, to regulate and license operations, premises and establishments commonly known as ‘bottle clubs' and similar organizations where alcoholic liquors and/or beverages are kept and consumed by persons ostensibly the owners of such liquor and beverages. The ordinance sets forth the following findings and policy, and the constitutional provision by which the Michigan Liquor Control Commission is vested with the control of the alcoholic beverage traffic within the State of Michigan, subject to legislative limitations. Act No. 8, Pub.Acts 1933, Ex.Sess., as amended, Stat.Ann.1947 Cum.Supp. § 18.971 et seq., creates the liquor control commission and limits its powers, but there are certain types of organizations which such commission does not assume to regulate with reference to alcoholic liquor. The ordinance states that there is no law or statute at the present time regulating the use of alcoholic liquor purchased by an unincorporated association or by persons who have made their own purchases of liquor and who congregate upon premises maintained for the express purpose of drinking alcoholic liquor which they own. It further states that the maintenance and operation of such premises for such purposes often gives rise to assaults, general delinquency and allied problems, and that inasmuch as such premises are commonly operated after the closing hours of taverns and other establishments selling alcoholic drinks, it creates an additional police problem; that it is the duty of police officers to repress, prevent crime and prosecute violations of Act No. 8, supra, where applicable to ‘bottle clubs' but the premises are not subject to the provisions of the Michigan liquor control act. The ordinance was adopted for the preservation of the public safety, healty and morals and for the purpose of licensing and inspecting premises not under the jurisdiction of the Michigan liquor control commission. It provides that any person or persons maintaining premises, not subject to the liquor control commission, whereon others may engage in the drinking of alcoholic liquor as defined in the ordinance, for a fee or other consideration, including the sale of food, mixes, ice, or any other fluids for alcoholic drinks, space for the storage of alcoholic liquors, et cetera, or otherwise furnish premises for such purposes and from which they would derive a revenue, shall procure a license from the city clerk or the city of Kalamazoo, under penalty for failure to do so of fine or imprisonment or both.

The ordinance provides the license fee shall be $500 per year less a preliminary fee of $50 for the costs of inspecting and investigation into the application, and in the event that it is disapproved, the retaining of such sum of $50. It further provides that the premises may be inspected at all reasonable times and at intervals by duly authorized representatives of the various departments of the city. It further prohibits licensee from permitting club members to consume alcoholic beverages at such ‘bottle clubs' between the hours of 2 a. m. and 12 midnight on any Sunday, or on any primary election day, general election day or municipal election day, until after the polls are closed. It further provides that no intoxicated persons shall be served or allowed to drink liquor on the premises so licensed, et cetera. It requires the filing of the names of all persons that such applicant allows upon the premises and who have a right to store or use liquor thereon.

The plaintiff attacks the validity of the ordinance and raises three questions, which we shall discuss.

Plaintiff claims that the city has no power to regulate the alcoholic beverage traffic. Under Act. 16,§ 11, of the Constitution of this State, it is provided that the legislature may by law establish a liquor control commission, which, subject to statutory limitations, shall exercise complete control over the alcoholic beverage traffic within this State. Under this granted power, the legislature in the Extra Session of 1933 enacted Act No. 8, which in section 1 states:

‘Section 1. * * * Except as by this act otherwise provided, the commission shall have the sole right, power and duty to control the alcoholic beverage traffic and traffic in other alcoholic liquor within the state of Michigan, including the manufacture, importation, possession, transportation, and sale thereof.’

The act then lists the powers of the commission as to licensing and defines the terms used in the act. The act was amended so as to meet the objections rasied in Noey v. City of Saginaw, 271 Mich. 595, 261 N.W. 88, so as to permit local authorities to control the colsing time of licensed establishments.

In Fuchs v. Common Council of Village of Grass Lake, 166 Mich. 569, 132 N.W. 96, 98, we held:

‘The exercise of this police power is peculiarly and especially proper in respect to the liquor traffic, as the results which follow from the use of intoxicating liquors often tend to disturb the public peace, and...