People v. Raub

• Decision Date: 06 December 1967
• Docket Number: Docket No. 2283,No. 1,1
• Citation: 9 Mich.App. 114,155 N.W.2d 878
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rodney RAUB, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 878

155 N.W.2d 878

9 Mich.App. 114

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rodney RAUB, Defendant-Appellant.

Docket No. 2283.

Court of Appeals of Michigan, Division No. 1.

Dec. 6, 1967.

Released for Publication Feb. 9, 1968.

Donald G. Schiff, Detroit, for defendant-appellant.

Robert Reese, Corp. Counsel, Robert D. McClear, Asst. Corp. Counsel, Detroit, for plaintiff-appellee.

Before HOLBROOK, P.J., and BURNS and McGREGOR, JJ.

HOLBROOK, Presiding Judge.

Defendant, Rodney Raub, was found guilty in recorder's court of the city of Detroit, traffic and ordinance division, of keeping open and operating a coin-operated, self-service car wash between the hours of 10 P.M. and 7 A.M. in violation of ordinance No. 119--G, section 39--1--90.3 of the city of Detroit. ¹ Defendant has appealed to this Court ² challenging the validity and constitutionality of the ordinance on several grounds as follows:

(1) The ordinance is an unconstitutional deprivation of property without due process of law (an unreasonable exercise of police power). ³

(2) The ordinance denies equal protection of law. ⁴

(3) The ordinance is void because of unlawful delegation of enforcement duties.

(4) The ordinance was not enacted in compliance with the charter of the city of Detroit.

1. EXERCISE OF POLICE POWER.

It is fundamental that 'where the exercise of police power is applicable, the provision of the constitution declaring that property shall not be taken without due process of law is inapplicble.' Wyant v. Director of Agriculture (1954), 340 Mich. 602, 608, 66 N.W.2d 240, 243. Also, see People v. Damm (1914), 183 Mich. 554, 149 N.W. 1002. At trial, defense counsel failed to urge or even state any particular ground or theory of unconstitutionality; ⁵ however, the trial court in rendering its decision stated as follows:

'It seems to me we have a question about a reasonable exercise of police power, and it would seem to me that the common council being the legislative body has a duty to conduct hearings and to enact laws which are for the betterment of the public health and welfare and morals of the public. And after the hearings, they have come up with an ordinance that restricts the operation of these businesses, probably due to several reasons, one of which would be the fact that there are no persons whatsoever on duty at all times to see that noise and other things don't go on throughout the middle of the night. I think that in view of the fact they were public hearings and in view of the fact, I believe, that there is here a reasonable exercise of police power, that I'll find the defendant guilty.'

There are essentially 3 points, to be taken in progression, necessary to a determination of the validity and constitutionality of the instant ordinance as an exercise of the police power: First, whether a coin-operated, self-service car wash business is subject to regulation; second, whether the hours during which the business might operate may be fixed by a municipal ordinance; and third, whether there is a reasonable relationship between the remedy and the public purposes necessitating its enactment.

People v. Victor (1939), 287 Mich. 506, 512, 283 N.W. 666, 669, 124 A.L.R. 316 states unequivocally that 'it is clear that Any business or business practice may be regulated if such regulation is necessary to the public welfare, health, morals and safety.' (Emphasis supplied) The record below indicates that the ordinance was necessary for several reasons: nearby residents had made numerous complaints of litter, excessive noise, beer drinking, and other disturbances during the late evening and early morning hours at defendant's car wash; these complaints were testified to at several hearings held prior to the enactment of the ordinance; a complaint seeking a preliminary and permanent injunction barring the operation of the car wash during the late evening and early morning hours had been filed in Wayne circuit court on the grounds that the business constituted a nuisance.

The nature of defendant's business is of relatively recent development. However, we find it to be a proper subject for regulation.

'The 'police power' is said to be a power or organization of a system of regulations tending to the health, order, convenience, and comfort of the people and to the prevention and punishment of injuries and offenses to the public. * * * It has for its object the improvement of social and economic conditions affecting the community at large and collectively with a view to bring about 'the greatest good of the greatest number.' Courts have consistently and wisely declined to set any fixed limitations upon subjects calling for the exercise of this power. It is elastic and is exercised from time to time as varying social conditions demand correction.' People v. Brazee (1914), 183 Mich. 259, 262, 149 N.W. 1053, 1054, L.R.A.1916E, 1146.

The hours of business may be regulated pursuant to the exercise of police power where there is a necessity therefor and a legitimate and reasonable relation to public health, welfare, peace, and safety. See, 16A C.J.S. Constitutional Law § 671.

The ordinance has a legitimate and reasonable relationship between the remedy adopted and the public purposes necessitating its enactment. It requires defendant to close the car wash after 10 p.m. thereby eliminating excessive noises and undesirable disturbances and A fortiori preserving to nearby residents peace and tranquility during late evening and early morning hours with reference to public health and welfare. The ordinance also thwarts potential rowdiness, 'gang' groupings, and like activity thereby sustaining public safety. We find the ordinance in question to fall within the lawful and constitutional exercise of the police power and therefore conclude that it does not constitute a deprivation of property contrary to the constitutional guarantee of due process of law.

2. EQUAL PROTECTION OF LAW.

Defendant contends that the ordinance is invalid as a denial of equal protection of law because it applies only to coin-operated car washes or to places were 2 or more cars may be washed simultaneously.

The rule to be applied in solving classification questions was set forth in Gauthier v. Campbell, Wyant & Cannon Foundry Company (1960), 360 Mich. 510, 514, 104 N.W.2d 182, and fully restated in Tracer v. Bushre (1966), 3 Mich.App. 494, 499, 142 N.W.2d 915, 917, as follows:

'The standards of classification are:

"1. The equal protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does no offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of...