Sullivan v. Graham, 18

• Decision Date: 10 March 1953
• Docket Number: No. 18,18
• Citation: 57 N.W.2d 447,336 Mich. 65
• Parties: SULLIVAN v. GRAHAM.
• Court: Michigan Supreme Court

Page 447

57 N.W.2d 447

336 Mich. 65

SULLIVAN v. GRAHAM.

No. 18.

Supreme Court of Michigan.

March 10, 1953.

William S. McDowell, Detroit, for appellant.

McCabe, Middleton & Kennedy, Detroit, for appellee.

Before the Entire Bench.

REID, Justice.

Plaintiff, a residential builder living in Michigan, brought this action at law to recover the balance due him from defendant for labor and materials furnished defendant under a contract for the alteration of defendant's dwelling house in Grosse Pointe, in Wayne county. The court granted defendant's motion to dismiss because the declaration did not allege that plaintiff had a residential builder's license, which allegation is required by § 19 of the act hereinafter referred to. Plaintiff appeals.

Involved in this appeal is the validity of P.A.1939, No. 311, as amended by P.A.1945, No. 315. Not brought into critical discussion are amendments of the act in question by P.A.1951, No. 49, which act of 1951 went into effect after plaintiff's cause of action arose and the instant suit had been begun.

Sections 3, 4 (in part) and 20 of the act in question are as follows, C.L.1948, §§ 338.703, 338.704, 338.720, Stat.Ann. §§ 18.85(3), (4) and (20):

'Sec. 3. On and after the first day of May, 1945, which shall be the effective date of this act, it shall be unlawful for any person to engage in the business of or to act in the capacity of a residential builder and/or a residential maintenance and alteration contractor in any county within this state now having or which hereafter may attain a total population of over 250,000 inhabitants without having a license therefor, as herein provided, unless such person is particularly exempted as provided in this act.

'Sec. 4. This act shall not apply to * * *

'(c) Trustees of an express trust or officers of a court providing they are acting within the terms of their trust or office respectively; * * *

'(g) This act shall not apply to any work or operation performed by or for any bank, trust company, building and loan association, or savings and loan association on any property to which they hold title or have an equitable title or in which they have a financial interest. * * *

'Sec. 20. On the effective date of this act it shall be the duty of the secretary of state to certify to the commission the counties which have a population in excess of 250,000 inhabitants on such date. Whenever any county shall hereafter attain a population in excess of 250,000 inhabitants, it shall be the duty of the secretary of state to certify that fact, at the request of any inhabitant of such county, and after the lapse of 90 days from the date of any such certification, the provisions of this act shall become applicable within any such county: Provided, That in counties with a population of less than 250,000 the provisions of this act shall become effective when the board of supervisors of the county shall by a 3/5 vote elect to come within the provisions of this act.'

Plaintiff claims the act unconstitutional and void because by its own terms it restricts its application to counties of 250,000 inhabitants, being applicable (in 1945) only to Wayne and three other counties.

Cited in the briefs are Attorney General ex rel. Dingeman v. Lacy, 180 Mich. 329, 146 N.W. 871, and Mulloy v. Wayne County Board of Supervisors, 246 Mich. 632, 225 N.W. 615.

Section 20 makes inapplicable to the instant case much of the reasoning we adopted in the Mulloy case (especially the words hereinbelow italicized). We quote from the Mulloy case, pages 639-640 of 246 Mich., page 617 of 225 N.W., as follows:

'The wording of the title and of section 1 alone might not be sufficient to necessitate a holding that the act could not be made applicable to any county other than Wayne and is, therefore, a local act; but we are of the opinion that the act as a whole is so framed that it cannot be made applicable to other counties as they acquire a population of 300,000 or more; and that by its very terms it is made clear it was not intended the act should be put in force in such other counties. No provision is made in the act for so doing. No other conclusion can be reached than that it is local legislation applicable to Wayne county only. The act contains no provision for a referendum, and it has not been submitted to a vote in Wayne county. It violates section 30, art. 5 of the Constitution, and must be held invalid.' (Italics supplied.)

Attorney General ex rel. Dingeman v. Lacy, supra, was a case involving the validity of P.A.1913, No. 186, creating a domestic relations court in counties of upwards of 250,000 population, in which case we held 180 Mich. at page 338, 146 N.W. 871, that the domestic relations court was a new or 'other' court within the meaning of art. 7, § 1 of the State constitution, and that to be valid it must be established by 'general law.' We further found, in 180 Mich. at page 341, 146 N.W. at page 875, that the classification by population in that case was 'a manifest subterfuge.' Our reasons in that case for finding the domestic relations court act invalid, do not apply, for the most part, to the act in question in the instant case.

Moreover, we have to a material degree departed from the reasoning in the Mulloy case and the Attorney General ex rel. Dingeman v. Lacy case, in respect to restrictions in statutes of applicability to counties of a designated total of population. We are more inclined to uphold the act where there is a reasonable relationship between the restriction and the population. See Hayes v. Auditor General, 184 Mich. 39, 150 N.W. 331; Kates v. Reading, 254 Mich. 158, 235 N.W. 881; Chamski v. Wayne County Board of Auditors, 288 Mich. 238, 284 N.W. 711; and Tribbett v. Village of Marcellus, 294 Mich. 607, 293 N.W. 872.

We find the act in question in this case to be not a local or special act. In view of the provisions of § 20 of the act above quoted, we consider that the act in question does not contravene art. 5 § 30 of our State constitution, which is in part as follows:

'The Legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question.'

Under the act, a residential builder is required to pay $25 for a license good for 3 years; a residential maintenance and alteration contractor, $15 license fee good for 3 years. There are requirements in the act as to residence, examination, etc., of licensees.

Plaintiff claims that the act in question in the instant case discriminates against certain natural persons and in favor of trustees, banks, trust companies and certain other financial associations holding title to or equitable liens upon lands.

The principle concerning unjust discrimination contended for by plaintiff has been considered in other states.

'That part of the act of April 21, 1896, entitled 'An act to promote the public health and regulate the sanitary construction of house drainage and plumbing,' which requires any plumber, whether master or employing plumber or journeyman, before engaging in the business, to undergo an examination as to fitness, and obtain a license, but permits all members of a firm to pursue the business where one only has procured such license, and all members of a corporation to pursue it where the manager only has procured such license, does not operate equally upon all of a class pursuing the calling under like circumstances, and is invalid.' (Syllabus by the Court.)...