Tracer v. Bushre

• Decision Date: 14 June 1966
• Docket Number: No. 2,No. 316,316,2
• Citation: 142 N.W.2d 915,3 Mich.App. 494
• Parties: Robert D. TRACER, Plaintiff-Appellant, v. Donald E. BUSHRE and Janet R. Bushre, his wife, Defendants-Appellees. Cal
• Court: Court of Appeal of Michigan — District of US

Page 915

142 N.W.2d 915

3 Mich.App. 494

Robert D. TRACER, Plaintiff-Appellant, v. Donald E. BUSHRE and Janet R. Bushre, his wife, Defendants-Appellees.

Cal. No. 316.

Court of Appeals of Michigan, Division No. 2.

June 14, 1966.

Ralph B. Hoschner, Corunna, for appellant.

Douglas I. Buck, Flint, for appellees.

Before LESINSKI, C.J., and T. G. KAVANAGH and QUINN, JJ.

QUINN, Judge.

Plaintiff filed suit in Genesee county circuit court to recover money allegedly due him under a building contract with defendants. By supplemental affirmative defense, defendants pleaded that plaintiff was not licensed as required by P.A.1953, No. 208 (C.L.S.1961, § 338.971 et seq., Stat.Ann.1957 Rev. and Stat.Ann.1961 Cum.Supp. § 18.86(1) et seq.), ¹ and was barred from recovery by the statute. On the basis of this affirmative defense, the trial court granted defendants' motion for summary judgment. ² Plaintiff appeals and contends the statute is unconstitutional because it is discriminatory and class legislation, it unreasonably and illegally delegates legislative powers to the county boards of supervisors, and it is ambiguous, uncertain and unreasonable.

Plaintiff, a building contractor with several years experience but unlicensed under the above statute, lives in Shiawasee county and does work there and in Genesee county. On or about January 3, 1964, he entered into an oral contract with defendants to complete their home in Genesee county. Plaintiff pleaded that when the work was nearly completed, defendants stopped him from further work for the reason they did not have enough money to pay him and that plaintiff had then incurred obligations totaling $12,702.54 for materials and labor. Defendants contest these facts in their answer, but in the posture the case comes to us, we accept plaintiff's allegations as true. Greenbriar Homes v. Cook (1965), 1 Mich.App. 326, 136 N.W.2d 27.

The statute under attack is commonly referred to as 'Residential Builders Act'. Section 1 thereof reads as follows:

'In order to safeguard and protect homeowners and persons undertaking to become homeowners, it shall be unlawful on and after the effective date of this act for any person to engage in the business of or to act in the capacity of a residential builder or a residential maintenance and alteration contractor in any county within this state subject to the provisions of this act on December 31, 1960, in any county brought under the operation of this act by its board of supervisors as provided in § 18 ³ hereof without having a license therefor, unless such person is particularly exempted as provided in this act.'

In Alexander v. Neal (1961), 364 Mich. 485, 110 N.W.2d 797, with reference to this statute, the Supreme Court stated:

'The police power is thus employed to protect that public from incompetent, inexperienced, and fly-by-night contractors.'

By appropriate action ⁴ of the Genesee county board of supervisors on March 24, 1959, the statute was made effective in that county. Section 16 of the act, being C.L.S.1961, § 338.986 (Stat.Ann.1957 Rev. § 18.86(16)), bars court action by an unlicensed residential builder to collect compensation for performance of an act or contract for which license is required by the act. It is clear on the record before us that plaintiff's action is barred if the statute is constitutional. In resolving plaintiff's challenges to its constitutionality, we are bound by the basic rule stated in Attorney General v. Detroit United Railway (1920), 210 Mich. 227, 253, 177 N.W. 726, 735:

'In approaching the consideration of a legislative enactment with the purpose of passing upon its constitutionality courts usually do, and always should, strive to sustain its validity if that may be done without doing actual violence to the language used in the act. Every intendment favorable to a conclusion sustaining the law must be indulged in.'

Plaintiff first contends that the restricted application of this statute to residential builders and residential maintenance and alternation contractors is discriminatory as class legislation and thus violates his constitutional rights. The rule to be applied in solving this classification question is well stated in Gauthier v. Campbell, Wyant and Cannon Foundry Co. (1960), 360 Mich. 510, 104 N.W.2d 182, 184:

'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 not 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 showing that it does not rest upon any reasonable basis, but is essentially arbitrary.' Citing cases.'

We do not find this classification arbitrary and we do find it has...