Prawdzik v. City of Grand Rapids

• Decision Date: 07 January 1946
• Docket Number: No. 30.,30.
• Citation: 21 N.W.2d 168,313 Mich. 376
• Parties: PRAWDZIK v. CITY OF GRAND RAPIDS et al.
• Court: Michigan Supreme Court

313 Mich. 376

21 N.W.2d 168

PRAWDZIK

v.CITY OF GRAND RAPIDS et al.

No. 30.

Supreme Court of Michigan.

Jan. 7, 1946.

Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.

Action by John Prawdzik against the City of Grand Rapids and others to recover damages for the wrongful revocation of plaintiff's license to conduct a restaurant business. From an order granting defendants' motion to dismiss, plaintiff appeals.

Affirmed.

Before the Entire Bench.

Fred P. Geib, of Grand Rapids, for plaintiff-appellant.

Ganson Taggart, Merle C. Baker, and John F. Livingston, all of Grand Rapids, for defendants-appellees.

CARR, Justice.

Claiming that his license to conduct a restaurant business had been wrongfully and unlawfully revoked, plaintiff brought suit in the superior court of Grand Rapids to recover damages, alleged to have resulted from such revocation and from the proceedings incident thereto. The individual defendants are, as appears from the declaration, the mayor of the city, the city health officer, and two inspectors of the municipal health department. Defendants moved to dismiss, asserting that the declaration did not allege facts sufficient to constitute a cause of action against any of the defendants; and further averring that the city cannot be held liable in damages because of the acts of its officers or agents performing duties in a governmental capacity, that the action of which plaintiff complained was done pursuant to law, that the plaintiff in accepting his license took it subject to the ordinance of the city and the power to revoke the same for cause, and that defendants had proceeded in accordance with the inherent police powers of the city. Following argument, the motion to dismiss was granted by the trial court. Thereafter a motion to vacate the order was made by plaintiff and denied. From the order granting the motion to dismiss, plaintiff appeals.

In determining whether the declaration sets forth a cause of action, material allegations of fact properly pleaded therein must be accepted as true and construed in the light most favorable to plaintiff. Mere conclusions of the pleader cannot be given force and effect. Grevnin v. Collateral Liquidation, Inc., 302 Mich. 274, 4 N.W.2d 547;Doyle v. Kammeraad, 310 Mich. 233, 17 N.W.2d 165.

The declaration alleges that for a number of years prior to December 13, 1943, plaintiff had been conducting a restaurant business in the city of Grand Rapids at specified locations, that his operations were successful financially and that he had established a good reputation as a restaurateur; that he was licensed by defendant city for the year beginning May 1, 1943, and ending May 1, 1944, and that on the date mentioned, December 13, 1943, the defendant city, by action of its commission and with the aid of the individual defendants, revoked said license. Plaintiff further claims that as a result of such revocation he was forced to abandon the restaurant business and dispose of property used in connection therewith, thereby sustaining financial loss. It is further claimed that ‘said actions and doings of said defendants were done and committed in pursuance of a wicked and unlawful plan and conspiracy wholly to ruin, defame and destroy plaintiff's restaurant business and plaintiff's good reputation without due process of law and against the just and lawful rights of plaintiff and to his great loss and damage.’ While the language quoted suggests reliance on the theory of conspiracy it is apparent from an analysis of the pleading that the gist of plaintiff's alleged cause of action lies in the claim that defendants had no right or power to revoke the license or to institute proceedings for such revocation and that, in consequence, the action in this regard was ‘without due process of law.’ It will also be noted that the damages that plaintiff seeks to recover are claimed to have resulted, not from any plan or concerted agreement as between the defendants, but rather from the revocation of the license by the city commission. The question presented for determination is, in consequence, whether the commission acted in accordance with its lawful authority in revoking plaintiff's license. Counsel for plaintiff apparently concedes the correctness of this view for, in his brief he states the issues involved on this appeal as follows:

‘1. Was plaintiff's restaurant license unlawfully revoked?

‘2. Did the unlawful revocation of plaintiff's restaurant license vest in plaintiff a right of action for damages against defendants or some of them?

‘3. Was the trial judge disqualified to decide the case because during its pendency the defendant city was acting upon a salary ordinance which included the judge's salary?’

Likewise, in his reply brief counsel, after referring to the home rule act and the city charter, states his position in the following language:

‘Appellant contends that sec. 9 of the ordinance in question, insofar as it attempts to authorize revocation of a license for alleged violation of the ordinance, imposes punishment prohibited by the cited statute and by the Grand Rapids city charter; and is therefore null and void, and cannot justify or protect defendants or any of them in revoking his license, forcing him out of business and ruining his reputation as a first class restaurateur.’

This brings us to consideration of the ordinance under which the commission acted in revoking the license, which ordinance defendants relied on before the trial court on the hearing of the motion to dismiss. In its present form the ordinance was enacted in December, 1936, and is entitled:

‘An ordinance relative to public health and to regulate restaurants, hotels, lunch counters, lunch wagons, soda fountains, and any other place where foods, drinks or other beverages are sold for consumption on the premises where sold; to prevent the sale of unclean foods, drinks or beverages, and to repeal all ordinances inconsistent herewith.’

In accordance with the general purpose as suggested in the title, namely, the protection of the public health, provisions in the ordinance are designed to insure the proper cleansing and sterilization of dishes and food containers and in general the maintenance of sanitary conditions in the conduct of the business. Requirements are also imposed with reference to lighting and ventilation, the furnishing of running water and the disposal of garbage. It is specifically declared to be unlawful for one operating any restaurant or other place of business subject to the ordinance, to keep, furnish or sell any unwholesome, tainted, putrid. or spoiled foods or beverages of any kind. To the end that the requirements of the ordinance may be properly enforced the health officer and his assistants are authorized to enter places of business subject to such requirements and to make inspections.

Section 9, which contains the provisions directly involved in this case, reads as follows:

‘Section 9. No place or business named in section 1 hereof shall be operated and maintained except a license for the same shall first be secured and fees paid by the proprietor, as is now provided by ordinance. Provided, that any such license shall be denied to the applicant unless the place of business also complies with the provisions of this ordinance, and provided further, any such license may also be revoked by the city commission for violations of this ordinance upon the recommendation of the director of public welfare made in writing, and after giving a seven-day written notice to the licensee, either in person or by mail, and a hearing on the charges preferred. Such recommendation to revoke a license shall be accompanied with the exact charges against the licensee, and no license shall be revoked unless it be found that the licensee has refused or is unable to comply with the terms of this ordinance or is an habitual violator thereof. Where it is necessary, in order to conform to the provisions of this ordinance, to make substantial changes in the building itself or rooms thereof, failure to complete the same until May 1, 1937, shall not constitute grounds for revoking the present license.’

Appellant does not claim that the ordinance is not, in general, a proper exercise of the police power of the city and reasonably necessary and conducive to the protection of the public health and well being. Neither does he question the right of the city to require a license as a condition precedent to conducting a restaurant business within the city. Obviously, he cannot question the validity of the license that he now says the city commission wrongfully revoked. The claim of invalidity is, in consequence, directed wholly against the provisions of sec. 9, above quoted, relating to revocation. With reference thereto it will be noted that the ordinance does not undertake to vest the commission, in acting on a petition for revocation, with arbitrary power. A definite standard is prescribed and the procedure required to be observed is such as to adequately protect the rights of a licensee.

The principal basis of attack on the validity of the provisions of the ordinance, to which appellant objects, rests on the assumption that the revocation of a license by the city commission is by way of punishment for a violation of the provisions of the ordinance. It is contended that the home rule act, Comp.Laws 1929, § 2228 et seq., and likewise the city charter, adopted pursuant to the statute, restrict the penalty that may be provided for the violation of any municipal ordinance to imprisonment for not more than 90 days or by fine not exceeding $500. These limitations, however, have reference to the possible penalty that the court may be authorized to impose following a conviction on a charge of violating an ordinance.

Section 11 of the ordinance here involved covers the matter of punishment following a court conviction. That section has no connection with the provisions of sec. 9,...