People v. Murphy, 46

• Decision Date: 23 September 1961
• Docket Number: No. 46,J,46
• Citation: 364 Mich. 363,110 N.W.2d 805
• Parties: , 89 A.L.R.2d 1006 PEOPLE of the State of Michigan, Plaintiff and Appellee, v. William MURPHY, Defendant and Appellant. une Term.
• Court: Michigan Supreme Court

Page 805

110 N.W.2d 805

364 Mich. 363, 89 A.L.R.2d 1006

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. William MURPHY, Defendant and Appellant.

No. 46, June Term.

Supreme Court of Michigan.

Sept. 23, 1961.

Gregory M. Pillon, Detroit, for appellant.

Nathaniel H. Goldstick, Corporation Counsel, G. Edwin Slater, John H. Witherspoon, Assts. Corporation Counsel, Detroit, for appellee.

Before the Entire Bench.

KELLY, Justice.

The sole question presented in this appeal is whether the Detroit television ordinance (No. 110-F) meets constitutional requirements.

The ordinance, directed toward regulating, licensing, installing and servicing television equipment in the city of Detroit, states that a great abuse has resulted in the public 'being victimized by irresponsible sales methods, unethical and financially unstable service organizations, and inferior installation, maintenance and repairs.'

This ordinance provides for a 9-member board, appointed by the mayor, consisting of 4 service dealers, a staff member of a television school licensed by the Michigan department of public instruction, a television engineer from a local television station, a representative of the Detroit department of buildings and safety engineering, a communications officer in a city division, and a resident of the city as a representative of the public at large.

Section 4i of the home rule act (P.A.1909, No. 279) as amended by P.A.1957, No. 131 (C.L.1948, § 117.4i [Stat.Ann.1959 Cum.Supp. § 5.2082]), states that:

'Each city may in its charter provide: * * *

'For the regulation of trades, occupations and amusements within its boundaries, not inconsistent with state and federal laws, and for the prohibition of such trades, occupations and amusements as are detrimental to the health, morals or welfare of its inhabitants.'

The charter of the city of Detroit, title 3, chap. 1, § 12(n), gives to the council the legislative power and duty:

'To provide for the regulation of trades, occupations and amusements and to provide for the prohibition of such trades, occupations and amusements as are detrimental to the health, morals or welfare of its inhabitants.'

Appellant challenge the constitutionality of the ordinance creating the board, stating:

'The T. V. board is composed of 4 members who are competitors of the defendant. Should they have the privilege of examining the defendant's books and records, of regulating the defendant's charges, the defendant's advertising, of passing rules and regulations affecting the defendant, of deciding what are violations and making recommendations concerning the defendant's license? The board may be 100% fair, but members thereof are competitors.'

To sustain his contention of unconstitutionality, appellant cites Milk Marketing Board v. Johnson, 295 Mich. 644, 295 N.W. 346. The milk marketing act (P.A.1939 No. 146) created a board of 5 members consisting of the commissioner of agriculture, 2 milk producers, 1 milk distributor, and 1 consumer. This board was empowered to establish prices for the sale of milk to the consumer. A divided court held the act invalid, stating (395 Mich. at pages 657, 660, 295 N.W. at page 351):

'No claim is made that any member of the present Board has acted unfairly or arbitrarily, but the fact remains that the act requires the appointment of a board, a majority of whose members have a direct pecuniary interest in the matters submitted to them. * * *

'The board, as constituted under the statute, is of such a nature that Johnson was not, and could not have been, accorded that impartial hearing which satisfies the requirements of due process.'

The decision in the Milk Marketing case, supra, does not apply to the present appeal because a majority of the television board is not in the service business and said board is not in any manner empowered to fix prices or charges for services rendered. The ordinance only permits the board to demand that there shall be a listing of such charges in duplicate.

An examination of the statutes discloses many instances where business or professions have on examining boards members of the businesses or professions to be regulated. To illustrate, the qualifications of architects, engineers and surveyors are determined by a 7-member board consisting of 3 architects and 4 professional engineers (C.L.1948, § 338.553 [Stat.Ann.1957 Rev. § 18.84(3)]); the qualifications of accountants are determined by the State board of accountancy consisting of 4 members, together with the Governor ex officio, 3 of whom must be certified public accountants (C.L.1948, § 338.501 [Stat.Ann.1957 Rev. § 18.1]); the qualifications of electricians are determined by an electrical administrative board consisting of the commissioner of the Michigan State Police and 7 additional members, all of whom must be concerned with some phase of the business of an electrician (C.L.S.1956, 338.882 [Stat.Ann.195...