Watnick v. City of Detroit

• Decision Date: 16 March 1962
• Docket Number: No. 105,105
• Citation: 365 Mich. 600,113 N.W.2d 876
• Parties: Morris WATNICK, Nathan Wigod and Harry Walkon, doing business as copartners under the name and style of LaSalle Distributing Company, Plaintiffs and Appellants, v. CITY OF DETROIT, a Municipal Corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 876

113 N.W.2d 876

365 Mich. 600

Morris WATNICK, Nathan Wigod and Harry Walkon, doing

business as copartners under the name and style of

LaSalle Distributing Company, Plaintiffs and Appellants, v. CITY OF DETROIT, a Municipal Corporation, Defendant and Appellee.

No. 105.

Supreme Court of Michigan.

March 16, 1962.

Seymour I. Caplan and George Stone, Detroit, for plaintiffs and appellants.

Nathaniel H. Goldstick, Corp. Counsel, Robert D. McClear, Asst. Corp. Counsel, Detroit, for defendant and appellee.

Before the Entire Bench except ADAMS, J.

CARR, Justice.

This case involves the validity of an ordinance of the city of Detroit adopted in July, 1957, and designated Ordinance 219-F, Chapter 455 of the Ordinances of said city. The purpose of said ordinance was to proscribe the selling of jewerly on Sunday and the keeping open of places of business for such purpose. It declared that it would be unlawful for anyone to violate the provisions thereof excepting, however, persons conscientiously believing that the seventh day of the week should be observed as the Sabbath, and who actually refrain from secular business and labor on that day. For a violation of the measure as adopted a penalty by way of a fine of not more than $500 or imprisonment in the Detroit House of Correction for not more than 90 days, or both such fine and imprisonment, was specified.

Plaintiffs herein, carrying on business as copartners under the name of LaSalle Distributing Company, brought this suit in the circuit court of Wayne County to enjoin enforcement of the ordinance, asserting as grounds of the alleged invalidity thereof that it was unreasonable and discriminatory against dealers in and sellers of jewelry, that it denied to them the equal protection of the law, and that it was in conflict with the statute of the State (C.L.1948, § 435.1 [Stat.Ann. § 18.851]) forbidding the keeping open of shops, warehouses and workhouses, and the carrying on of any labor, business, or work, or the taking part in certain sports, games and diversions, on the first day of the week. From the general prohibition set forth in the State statute an exception is stated applicable to works of necessity and charity.

Motion to dismiss was filed on behalf of defendant city, it being asserted therein that the ordinance assailed by plaintiffs was a valid and proper exercise of the police power of the city acting through its common council. Pursuant to stipulation of the parties a list of Sunday closing ordinances of Detroit, containing exceptions applicable to works of necessity, and to persons conscientiously believing that the Sabbath should be observed on the seventh day of the week, was introduced in evidence for the expressed purpose of showing which businesses within the city were prohibited by ordinances at the time of the institution of the present suit. Said list comprised ordinances declaring it to be unlawful to engage in the conduct of the business of selling furs or fur products on Sunday, carrying on the business of selling jewelry or keeping open a place of business therefor (the ordinance in question here), the carrying on of a used auto parts business and dealing in second-hand auto parts or salvaged automobiles and the buying and selling of second-hand auto parts in the city of Detroit, the buying, selling or exchanging second-hand motor vehicles, the buying, selling, renting, leasing or exchanging of real estate or of interests therein, and the selling, renting, leasing or exchanging furniture, including television, radios and household appliances. The trial judge before whom the motion to dismiss was heard disposed thereof by reference to the decision of this Court in People's Appliance, Inc., v. City of Flint, 358 Mich. 34, 99 N.W.2d 522, and an order was entered dismissing the bill of complaint. From such order plaintiffs have appealed.

In defining the powers of the common council of the city the Detroit charter in section 12, Chapter 1, Title 3, specifically grants authority as follows:

'(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, but no such punishment shall exceed a fine of five hundred dollars or imprisonment for ninety days or both such fine and imprisonment, in the discretion of the court; * * *

'(n) To provide for the regulation of trades, occupations and amusements and to provide for the prohibition of such trades, occupations and amusements as are detrimental to the health, morals or welfare of its inhabitants, and for the regulation and restriction of the territory within which intoxicating liquors are sold or manufactured, if not prohibited by law: Provided, that the council shall by ordinance provide for the regulating, licensing and bonding of private detectives and private detective agencies;'

The State Constitution directs the legislature to adopt general laws for the incorporation of cities and villages, limiting the rate of taxation for municipal purposes and restricting the powers of borrowing money and contracting debts. It is further provided (Article VIII, § 21, as amended) that:

'Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village 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.'

The home rule act for cities*, in section 4i, (C.L.1948, § 117.4i [Stat.Ann. & Stat.Ann.Cum.Supp. § 5.2082]), authorizes a city adopting a charter thereunder to provide for the enforcement of all such 'local, police, sanitary and other regulations as are not in conflict with the general laws', and to provide for the punishment of violations of ordinances by fine not exceeding $500.00 or imprisonment for 90 days, or both. Said section also grants specific authority for the regulation of trades and occupations within the boundaries of the city not inconsistent with State and Federal laws. The following section further grants authority:

'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.'

Appellants' claim that the ordinance in question here is invalid because discriminatory is based on the failure of the common council to prohibit also the carrying on of other businesses within the city. It is argued in substance that, because the sale of jewelry on Sunday is prohibited while other types of stores are permitted to operate, there is a violation of the guaranties set forth in the State and Federal Constitutions relating to due process of law and the equal protection of the laws. It is suggested that prior decisions of this Court rejecting the argument here advanced should be overruled.

In considering the validity of the ordinance now before us due regard must be given to the presumption of constitutionality thereof. The rule in this respect applicable to statutes passed by the legislature applies with equal force to municipal ordinances. Goldstein v. City of Hamtramck, 227 Mich. 263, 198 N.W. 962. In Cady v. City of Detroit, 289 Mich. 499, 286 N.W. 805, there was involved the validity of an ordinance pertaining to the maintenance and operation of so-called trailer camps. In considering such issue it was said:

'A statute will be presumed to be constitutional by the courts unless the contrary clearly 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. Cottrell, 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 that it violates some provision of the Constitution, that a court will refuse to sustain its validity. A statute is presumed to be constitutional and it will not be declared unconstitutional unless clearly so, or so beyond a reasonable doubt. Attorney General ex rel. Barbour, v. Lindsay, 178 Mich. 524, 145 N.W. 98; Bowerman v. Sheehan, 242 Mich. 95, 219 N.W. 69, 61 A.L.R. 859.'

The above decision was cited with approval in People v. Sell, 310 Mich. 305, 17 N.W.2d 193, in which this Court sustained the validity of an ordinance of the city of Detroit declaring it to be unlawful for any person to sell within said city a commodity at a price exceeding the ceiling fixed by the regulations of the Federal government. Referring to pertinent provisions of the State Constitution and of the home rule act, the validity of the ordinance was sustained as against the objection that the common council of the city had exceeded its authority.

Among other prior decisions of this Court involving the contention advanced by appellants in the instant case is People v. Litvin, 312 Mich. 57, 19 N.W.2d 485. At issue there was the validity of an ordinance of the city of Detroit forbidding the selling of goods, wares, merchandise or...