Noey v. City of Saginaw, 48.
| Decision Date | 17 May 1935 |
| Docket Number | No. 48.,48. |
| Citation | 261 N.W. 88,271 Mich. 595 |
| Parties | NOEY et al. v. CITY OF SAGINAW (MICHIGAN LIQUOR CONTROL COMMISSION, Intervener). |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Suit by Arthur Noey and others against the City of Saginaw, in which the Michigan Liquor Control Commission intervened. From the decree, the defendant appeals.
Affirmed.
Appeal from Circuit Court, Saginaw County, in Chancery; Clarence M. Browne and William H. Martin, Judges.
Argued before the Entire Bench.
David E. McLaughlin, City Atty., of Saginaw, for appellant.
F. Roland Sargent, of Saginaw, for appellees.
An amendment to our state Constitution (article 16, § 11) was adopted in 1932, which reads in part as follows: ‘The legislature may by law establish a liquor control commission, who, subject to statutory limitations, shall exercise complete control of the alcoholic beverage traffic within this state, including the retail sales thereof.'
Pursuant thereto, Act No. 8, Pub. Acts 1933 (Ex. Sess.), was enacted. Section 1 reads in part as follows:
‘ Scope of Act. On and after the effective date of this act, it shall be lawful to manufacture for sale, sell, offer for sale, keep for sale, posses and/or transport any alcoholic liquor, as hereinafter defined, including alcoholic liquor used for medicinal, mechanical, chemical or scientific purposes and wine for sacramental purposes, subject to the terms, conditions, limitations and restrictions contained herein, and only as provided for in this act.
‘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.'
Section 5 provides for the creation of a liquor control commission. Section 7 reads: ‘The commission shall adopt rules and regulations governing the carrying out of this act and supplemental thereto.'
Acting thereunder, the commission adopted the following regulation: ‘In addition to the restriction contained in Act No. 8, P. A. 1933, Special Session, no licensee, by himself, his servants, agents or employees shall sell or permit the sale of any alcoholic liquor for consumption on the premises between the hours of 2:00 o'clock and 7:00 o'clock A. M., Eastern Standard Time (except where Central Standard Time is used).'
On November 27, 1934, the city of Saginaw adopted an ordinance which fixed the closing hours of places licensed to sell intoxicating liquor for consumption on the premises at not later than 12 o'clock p. m. and until 7 o'clock a. m. of the following day.
The question here presented is whether the regulation of the commission, which intervened, or the city ordinance is controlling. The trial court found the provision in the ordinance to be of no force or effect, and enjoined the city from enforcing it. The city has appealed.
Sections 20 and 21 of article 8 of our state Constitution provide that the Legislature shall provide by a general law for the incorporation of cities, and that under it the electors shall have power and authority to frame, adopt, and amend its charter, ‘and through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this state.’ Section 21.
Counsel for the city contend that the ordinance is not in conflict or inconsistent with the regulation of the commission; that it but exacts additional requirements by limiting the time during which licensed places shall be kept open, and relies for the exercise of its power upon that given it by section 4, subdivision 3, of its charter, which reads as follows: ‘To make and enforce all regulations, by-laws and ordinances which may be necessary and expedient for the preservation of health, and the prevention of the spread of, or the introduction into the City of contagious, malignant, infectious or other diseases. * * *'
The power conferred upon the city under the constitutional provision is ‘subject to the Constitution and general Laws of this state.’ The constitutional amendment, providing for a liquor control commission, vested in it, when established by act of the Legislature, ‘complete...
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...in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is preempted. Noey v. City of Saginaw, 271 Mich. 595, 261 N.W. 88 (1935). 7 Second, preemption of a field of regulation may be implied upon an examination of legislative history. Walsh v. City of ......
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