People v. Sell

• Decision Date: 02 January 1945
• Docket Number: No. 83.,83.
• Citation: 310 Mich. 305,17 N.W.2d 193
• Parties: PEOPLE v. SELL.
• Court: Michigan Supreme Court

310 Mich. 305

17 N.W.2d 193

PEOPLE

v.SELL.

No. 83.

Supreme Court of Michigan.

Jan. 2, 1945.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; DeWitt H. Merriam, judge.

John H. Sell was convicted of violating ordinance of City of Detroit by ‘willfully and knowingly‘ offering for sale and selling dressed chicken at a price in excess of the ceiling price as ‘fixed by and under the authority of the United States of America * * * by order No. 8 issued August 31, 1943, by the district director of the Detroit district of the office of price administration of the United States government’, and he appeals.

Affirmed.

BOYLES, WIEST, and SHARPE, JJ., dissenting.

Before the Entire Bench.

Harry S. Bennett, of Detroit, for defendant and appellant.

Nathaniel H. Goldstick, Asst. Corp. Counsel, of Detroit, for plaintiff-appellee.

Thomas I. Emerson, Deputy Administrator for Enforcement, Fleming James, Jr., Director, Litigation Division, Walter Heddesheimer, Regional Litigation Atty., David London, Chief, Appellate Branch, and Samuel Mermin, Special Appellate Atty., all of Washington, D. C., and Paul E. Krause, Corp. Counsel, of Detroit, for Administrator, O. P. A., amicus curiae.

STARR, Chief Justice.

This case requires a determination of the constitutionality of ordinance No. 349-D of the city of Detroit, made effective October 14, 1943, reading as follows:

‘Section 1. It shall be unlawful for any person, firm, copartnership, association or corporation, in the course of trade or business, to willfully and knowingly sell or in any way to transfer a commodity rationed by any order or regulation of the United States of America, or any agency thereof, without taking in exchange for such commodity the coupons, stamps, certificates, ration checks or other ration documents, if any, required by the order or regulation in effect at the time of the sale or transfer.

‘Sec. 2. It shall be unlawful for any person to willfully and knowingly sell a commodity which is the subject of a ceiling price fixed by or under the authority of the United States of America at a price in excess of such ceiling price so established.

‘Sec. 3. Any person, firm, copartnership, association or corporation violating any of the provisions of this ordinance shall, upon conviction thereof be subject to a fine not exceeding $500 or imprisonment in the Detroit house of correction for a period not exceeding 90 days, or both such fine and imprisonment in the discretion of the court.

‘Sec. 4. This ordinance is hereby declared to be necessary for the preservation of the public peace, health and safety and is hereby given immediate effect.’

Defendant was arrested and arraigned upon a complaint charging that on October 16, 1943, he violated said ordinance by ‘willfully and knowingly’ offering for sale and selling a dressed chicken at a price of 50 cents a pound, which was 6 cents a pound in excess of the ceiling price of 44 cents a pound, as ‘fixed by and under the authority of the United States of America * * * by order No. 8 issued August 31, 1943, by the districk director of the Detroit district of the office of price administration of the United States government.’ Upon trial without a jury in recorder's court for the city of Detroit, traffic and ordinance division, defendant was convicted and was sentenced to 20 days imprisonment. His motion for a new trial was denied, and on review by certiorari the circuit court entered an order affirming his conviction. Having obtained leave, he appeals from such order.

In considering the question before us, certain constitutional, statutory and charter provisions should be noted. Const. Mich. 1908, art. 8, §§ 20, 21, state that the legislature ‘shall provide by a general law for the incorporation of cities,’ and that the electors of each city shall have power ‘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.’ Referring to the above provisions of the Constitution, we said in Village of Kingsford v. Cudlip, 258 Mich. 144, 148, 241 N.W. 893, 894:

‘The purpose of these and other provisions which follow undoubtedly was to secure to cities and villages a greater degree of home rule than they formerly possessed. The provision for a general law for their incorporation was intended to confer upon them almost exclusive rights in the conduct of their affairs, not in conflict with the Constitution or general laws applicable thereto.’

The home rule city act (Act No. 279, Pub.Acts 1909, as amended) provides in part:

‘Sec. 4-i. Each city may in its charter provide: * * *

‘(4) 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.’ Comp.Laws Supp. 1942, § 2239.

‘Sec. 4-j. Each city may in its charter provide: * * *

‘(3) For the exercise of all municipal powers in the management and control of municipal property and in the administration of the municipal government, whether such powers be expressly enumerated or not; for any act to advance the interests of the city, the good government and prosperity of the municipality and its inhabitants 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.’ Comp.Laws 1929, § 2240.

In considering the home rule act, in City Commission of Jackson v. Hirschman, 253 Mich. 596, 235 N.W. 265, 266, we said:

‘A reading of the Home Rule Act shows that it is rather comprehensive in its provisions as to what the city may or may not incorporate in its charter, but it leaves many things to be implied from the power conferred. * * * The purpose of the legislative enactment was to give the city a large measure of home rule. * * * Considering its purpose, it should be construed liberally and in a home rule spirit.’

In the case of City of Pontiac v. Ducharme, 278 Mich. 474, 479, 270 N.W. 754, 756, we quoted with approval from Gallup v. City of Saginaw, 170 Mich. 195.135 N.W. 1060, as follows:

‘The new system (referring to the home rule act) is one of general grant of rights and powers, subject only to certain enumerated restrictions, instead of the former method of only granting enumerated rights and powers definitely specified. We must assume the act was passed with that intent and construe it accordingly.’

Title 3, chap. 1, § 12, of the charter of the home rule city of Detroit, as amended in 1938, provides that the city shall have power:

‘(d) To enact ordinances to carry into effect the powers conferred and the duties imposed upon the city by the Constitution and laws of the State, to make operative the provisions of this charter, and to promote the general peace, health, safety, welfare and good government of the city; and to provide for the enforcement of such ordinances and the punishment of violations thereof. * * *

‘(n) To provide for the regulation of trades, occupations and amusements.’

The ordinance under consideration, which was declared to be ‘necessary for the preservation of the public peace, health and safety,’ was adopted for the purpose of augmenting the enforcement of regulations and orders promulgated by the office of price administration under the Federal Emergency Price Control Act of 1942, 56 Stat. at L. 23, 50 U.S.C.A.Appendix, § 901 et seq. Said act, which was enacted by the congress as an emergency measure during the war period, declared its purpose to be as follows:

‘It is hereby declared to be in the interest of the national defense and security and necessary to the effective prosecution of the present war, and the purposes of this Act are, to stabilize prices and to prevent speculative, unwarranted, and abnormal increases in prices and rents; to eliminate and prevent profiteering, hoarding, manipulation, speculation, and other disruptive practices resulting from abnormal market conditions or scarcities caused by or contributing to the national emergency; to assure that defense appropriations are not dissipated by excessive prices; to protect persons with relatively fixed and limited incomes, consumers, wage earners, investors, and persons dependent on life insurance, annuities, and pensions, from undue impairment of their standard of living; to prevent hardships to persons engaged in business, to schools, universities, and other institutions, and to the Federal, State, and local governments, which would result from abnormal increases in prices; to assist in securing adequate production of commodities and facilities; to prevent a post emergency collaps of values; to stabilize agricultural prices * * *; and to permit voluntary cooperation between the Government and producers, processors, and others to accomplish the aforesaid purposes.’

Defendant contends that the ordinance is unconstitutional because not a proper exercise of the police power of the city. It should be noted that the same presumption of constitutionality applies to a city ordinance as to a State statute. Goldstein v. City of Hamtramck, 227 Mich. 263, 198 N.W. 962. In the case of Cady v. City of Detroit, 289 Mich. 499, 505, 286 N.W. 805, 807, we said:

‘A statute will be presumed to be constitutional by the courts unless the contraryclearly appears; and in case of doubt every possible presumption not clearly inconsistent with the language and the subject matter is to be made in favor of the constitutionality of legislation. Scott v. Smart's Executors, 1 Mich. 295;Sears v. Cottell, 5 Mich. 251;Thompson v. Auditor General, 261 Mich. 624, 247 N.W. 360. Every reasonable presumption or intendment must be indulged in favor of the validity of an act, and it is only when invalidity appears so clearly as to leave no room for reasonable doubt...