Peninsular Stove Co. v. Burton

• Decision Date: 02 October 1922
• Docket Number: No. 16.,16.
• Citation: 189 N.W. 880,220 Mich. 284
• Parties: PENINSULAR STOVE CO. v. BURTON et al.
• Court: Michigan Supreme Court

220 Mich. 284

189 N.W. 880

PENINSULAR STOVE CO.

v.BURTON et al.

No. 16.

Supreme Court of Michigan.

Oct. 2, 1922.

Appeal from Circuit Court, Wayne County, in Chancery; Walter H. North, Judge.

Suit by the Peninsular Stove Company against Frank Burton and others for injunction. From decree for plaintiff, defendants appeal. Affirmed.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Walter Barlow, of Detroit (Clarence E. Wilcox, of Detroit, of counsel), for appellants.

Lucking, Helfman, Lucking & Hanlon, of Detroit, for appellee.

SHARPE, J.

The plaintiff seeks to enjoin the defendants, who are officials of the Department of Building Inspection of the city of Detroit, from enforcing the provisions of Act No. 384 of the Public Acts of 1919. The act is printed in full in the margin.¹

The bill of complaint alleges that the act is unconstitutional and void for several reasons, among them, that the classification is so unreasonable and capricious as to be in violation of the ‘due process' clauses of the state and federal Constitutions, and the ‘equal protection of the laws' clause of the Constitution of the United States. The trial court found the act subject to the claim thus made, and granted the relief prayed for. From the decree rendered defendants appeal.

It is elementary that all property is held subject to the general police power to regulate and control its use so as to secure the general safety, and all reasonable provisions enacted for the prevention of and protection against conflagration is generally recognized as a proper exercise of such power. But legislation to that end must not be unreasonable or discriminatory. It must not single out any class of persons or things and arbitrarily impose burdens upon them not applying to others within the same general class.

The record shows that there are several kinds of heating plants, steam, hot-water, warm-air, and stoves, in which wood, coal, or coke may be used as fuel. Out of these the Legislature selected a class, warm air, for this special regulatory legislation. While the title indicates an intention to regulate all plants of this class, the first section of the act confines its operation to furnaces ‘inclosed in galvanized sheet iron.’ Of this class an exception is made of those which are pipeless or have but one register. We have therefore, not only the selection of a class of heating plant, but of a class of this class. To justify such action it must appear that some substantial reason existed for the regulation of this particular kind of heating plant not equally applicable to the others. Is there greater danger of fire from a plant thus installed than from other warmair heating plants? The fire hazard due to the overheating of the furnace itself may be greater when it is inclosed in metal than in brick, but no such claim can be made as to the smoke pipes or the pipes leading to the rooms or the registers.

It seems clear to us that the classification here made is not based upon any real or substantial distinction. No sufficient reason has been pointed out for exercising the supervisory control provided for in the act over the installation of a warm-air heater inclosed in metal with more than one pipe, which does not equally apply to one inclosed in brick, or one which has but one pipe.

The following Michigan cases will be found instructive: People v. Circuit Judge, 124 Mich. 664, 83 N. W. 594,50 L. R. A. 493, 83 Am. St. Ret. 352; Simpson v. Paddock, 195 Mich. 581, 161 N. W. 898;People v. Sperry, 197 Mich. 532, 164 N. W. 503, L. R. A. 1918A, 797;Haynes v. Circuit Judge, 201 Mich. 138, 166 N. W. 938, L. R. A. 1918D, 233;Davidow v. Wadsworth, 211 Mich. 90, 178 N. W. 776, 12 A. L. R. 605. The question presented is fully discussed in 12 C. J. 1128, and 6 R. C. L. 374. The cases from other jurisdictions are there collected.

We are at all times reluctant to interfere with the acts of the legislative branch of the government, but, when the rights of the people secured to them by the Constitution are affected thereby, our duty is plain.

The decree is affirmed, with costs to appellee.

NOTE.

Pub. Acts 1919, No. 384.

An act to regulate and control the installation of warm air heating plants, and to provide for the public safety and fire protection in such installations.

The people of the state of Michigan enact:

Section 1. Warm air heating plants, to which this act refers, consist of one or more furnaces enclosed in galvanized sheet iron, and do not include the pipeless or one register heater.

Sec. 2. Before proceeding with the installation of any warm air heating plant in cities or villages within the state of Michigan, wherein provisions for building inspection exist, a permit therefor shall be obtained by the heating contractor or owner from the department of building inspection, under whose jurisdiction the said plant is to be installed. The fee for such permit shall be one dollar which shall be paid by the person applying for such permit to the said department of building inspection, and all money so received shall be credited to the general fund of such city or village.

Sec. 3. Immediately following the completion of the installation of a warm air heating plant for which the necessary permit has been issued, the heating contractor or owner shall, in writing, so notify the aforesaid department of inspection, whereupon said department shall, immediately following the receipt of the aforesaid notice, cause the same to be carefully inspected, and unless complaint of a violation is made in writing within ten days the said installation will be deemed approved and favorably passed upon.

Sec. 4. No warm air heating plant shall be installed in any building intended for occupancy or residential purposes, unless the said warm air heating plant shall have a free air space of at least fifteen per cent. greater...