People v. Sarnoff

• Decision Date: 10 June 1942
• Docket Number: No. 84.,84.
• Citation: 302 Mich. 266,4 N.W.2d 544
• Parties: PEOPLE v. SARNOFF.
• Court: Michigan Supreme Court

302 Mich. 266

4 N.W.2d 544

PEOPLE

v.SARNOFF.

No. 84.

Supreme Court of Michigan.

June 10, 1942.

Joseph Sarnoff was convicted in two cases of violations of the building code of the City of Detroit, and he appealed in nature of mandamus from judgment of Circuit Court affirming judgment of the Recorder's Court for the City of Detroit.

Affirmed.

BOYLES and SHAR JJ., dissenting.

Appeal in nature of Mandamus from Circuit Court, Wayne County; Arthur Webster, Judge.

Before the Entire Bench.

Alvin D. Hersch and Samuel H. Weisman, both of Detroit, for appellant.

Paul E. Krause, Corp. Counsel, and Nathaniel H. Goldstick and Arthur Barkey, Assts. Corp. Counsel, all of Detroit, for appellee.

BUSHNELL, Justice.

Defendant Joseph Sarnoff was convicted in two cases by a jury in the Recorder's Court for the City of Detroit, Traffic and Ordinance Division, of violations of § 2969 of the Building Code of the City of Detroit, Ordinance No. 131-D, being an amendment to Ordinance No. 354-C. First, in one case it was charged that Sarnoff failed to keep a certain dwelling in good repair, in that he failed to reopen a blocked sewer and remove sewage from the cellar, make repairs to cellar stairs, install a window in the cellar for light and ventilation, replace broken glass in a kitchen door, and reputty broken glass. In the second case it was charged that Sarnoff failed to keep a certain dwelling in good repair in that all loose sidings on the exterior walls had not been refastened, proper foundations under the dwelling were not installed, the floors were not leveled, holes in the floors were not repaired, broken window glass was not replaced, loose window glass was not reputtied, broken window sash was not repaired, and dangerous stair treads on rear outside stairs to the second floor apartment were not repaired.

Defendant was found guilty in each case and was sentenced as follows: He was placed on probation in each case for a period of one year, the conditions of probation being that in each case he make the necessary repairs and that in each case he be confined to the Wayne County Jail for a term of 60 days, each of said terms to be served concurrently. Defendant's application for writ of certiorari to the Circuit Court of Wayne County was granted.

Defendant contended that the ordinance was invalid and that the sentence imposed was illegal and unconstitutional. He also asserted that his commitment to the Wayne County Jail was illegal because the director of the Psychopathic Clinic of the Recorder's Court for the City of Detroit had filed a written report in which he stated that, ‘Psychiatrically, this individual is insane.’ Sarnoff also contended that the imposition of a sentence of one year's probation and confinement for 60 days in the Wayne County Jail constituted cruel or unusual punishment. He further claimed that substantially all the repairs demanded had been made and that he had agreed to make the remaining ones. The circuit judge did not pass upon the insanity question, that matter not having been included in the record. (Nor is it included in the agreed concise statement of facts submitted to this court, and, therefore, will not be considered.)

The circuit judge, after a hearing, held the ordinance valid, affirmed the sentence, and dismissed the writ of certiorari. This court granted leave to appeal and stayed the proceedings. Appellant raises substantially the same questions here that were presented to the circuit court.

The Building Code of the City of Detroit is similar to the State Housing Code. See Act No. 167, Pub.Acts 1917, as amended, 1 Comp.Laws 1929, § 2487 et seq. (Stat.Ann. § 5.2771 et seq.) Section 71 of the State Housing Code, 1 Comp.Laws 1929, § 2559 (Stat.Ann. § 5.2843), reads in part: ‘Every dwelling and all the parts thereof shall be kept in good repair by the owner, * * *.’

Sarnoff contends that § 2969 of the Ordinance No. 131-D amending Ordinance No. 354-C of the City of Detroit, known as the Building Code, is unconstitutional because the provision requiring a dwelling and the parts thereof to ‘be kept in good repair by the owner’ is too broad and indefinite and, therefore, fails to adequately inform the owner of the particular act or acts prohibited.

It is fundamental that a penal law cannot be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may or what he may not do under it. People v. Goulding, 275 Mich. 353, 359, 266 N.W. 378.

However, the words ‘good repair’ have a well known and definite meaning. See Annis v. Britton, 232 Mich. 291, 205 N.W. 128, and Malosh v. Thompson, 265 Mich. 320, 251 N.W. 346. They sufficientlyinform the ordinary owner that his property must be fit for the habitation of those who would ordinarily use his dwelling. It would be difficult, if not impossible, to lay down a rule of conduct in more exact terms which would at the same time cover the varying conditions presented in each individual case. As was said in People v. McMurchy, 249 Mich. 147, 178, 228 N.W. 723, 734: ‘* * * there are many crimes on our statute books which must be defined by the use of words of a general and flexible meaning, and the existence or nonexistence of the essential elements of these crimes becomes a question of fact to be determined in each case. It is not possible to use any but general terms for describing the following statutory crimes: Willful, deliberate, and premeditated killing; committing an assault with a deadly weapon; assault with intent to do great bodily harm; assault with a gun, etc., or other dangerous weapon; cruelly and unlawfully punishing a child; going armed with an offensive and dangerous weapon or instrument concealed on one's person; committing a gross fraud or cheat; malicious injury to property; abandonment of wife or children without necessary and proper shelter, food, etc.; drunkenness, intoxication, driving while intoxicated; lewd and lascivious cohabitation; use of indecent language, etc.; crime, sabotage, violence, or other unlawful methods of terrorism; gross indecency; disorderly person; allowing a prisoner to escape through negligence; lottery, resisting an officer, etc. It is necessary to apply the rule of reason or common understanding to many statutes in order to carry out their purpose. Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619, 34 L.R.A.,N.S., 834, Ann.Cas.1912D, 734; United States v. American Tobacco Co., 221 U.S. 106, 31 S.Ct. 632, 55 L.Ed. 663.’ See, also, the discussion on this subject in People v. Maki, 245 Mich. 455, 223 N.W. 70, and People v. Chas. E. Austin, Inc., Mich., 3 N.W.2d 841.

Legislation in vague or general terms is also treated in 45 Harv.L.Rev. 160 (1931) 21 Mich.L.Rev. 831 (1923) and 37 Mich.L.Rev. 1161 (1939). The last cited article says in part: ‘No precise test to determine whether a statute is too vague and indefinite to afford due process can be ascertained from the cases. Within the general rules and depending on the practical application of the statute to the fact situations, it seems a court has some leeway to declare doubtful terms too indefinite or not. The...