Vernier v. Common Council ( 1912 )

Stone, J.

This is certiorari brought by the common council of Grosse Pointe Shores to review the action of the circuit court of Wayne county in granting a mandamus in favor of relator against said village council. The sole question involved is the validity of an ordinance adopted by the village council on April 12, 1912, suppressing all saloons in said village. On the same date the relator below made application for a license to carry on the sale of spirituous and intoxicating liquors in said village. On April 29th the council rejected said application. Whereupon the relater applied to the circuit court for the county of Wayne for a writ of mandamus to compel the respondent to grant the relator a license. After due hearing in the premises, the writ was granted.

The said village was organized under Act No. 278 of the Public Acts of 1909. In pursuance of that act, it adopted a charter, which contained the following provision : Chapter 26, § 2:

“ The common council shall have power to pass such ordinances in relation to the following subjects as it may deem proper: (1) To regulate trade, occupations and amusements within its boundaries, including the sale of intoxicating liquors and the number of licenses to be issued therefor; and to suppress saloons for the sale of spirituous and intoxicating liquors.”

The validity of this ordinance is attacked upon the ground that its enactment involved the exercise of the police power of the State; that the legislature has delegated this power to the electors of the village; that the electors of the village could not redelegate the power to the village council; that consequently the charter provision delegating the right to suppress saloons to the village council is void, and, as a necessary séquence, that the ordinance is void. Article 5, § 1, of the Constitution of Michigan, provides :

“ Legislative power is vested in a senate and house of representatives. ”

Article 8, § 20, of the Constitution, provides:

“ The legislature shall provide by a general law for the incorporation of cities, and by a general law for the incorporation of villages. * * * ”

Section 21 of the same article is as follows:

“ Under such general laws, the electors of each city and village shall have power and authority 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.”

In 1909, by Act No. 278, the legislature enacted the following provision:

“Sec. 24. Each village may in its charter provide: (a) for the regulation of trade, occupations and amusements within its boundaries, including the sale of intoxicating liquors and the number of licenses to be issued therefor, but no charter shall permit the sale of such liquors in any county where such sale is prohibited by operation of the general local-option law of the State, but may suppress saloons for the sale of spirituous and intoxicating liquors.”

Section 25 of said act is as follows:

“Each village may adopt as its charter or any part of the same, any chapter, act or section of the statutes of this State in force at the time of such adoption and not inconsistent with the provisions of this act, which relates to the powers or government of villages generally, either by reciting the same in such charter or by appropriate reference thereto.”

The court below held (a) that Act No. 278 of the Public Acts of 1909 gives the power of suppressing saloons to the village, and not the common council; (6) that the electors having such power cannot delegate it to their council. In other words, the circuit court held that the suppressing of saloons must be by the charter itself, and not by ordinance of the council. This decision necessarily goes to the extent of invalidating the charter provision above quoted.

It is the contention of the relator that if the power is given by section 24, subd. “a,” above quoted, to suppress saloons for the sale of spirituous and intoxicating liquors, that power can only be exercised by the electors of the village enacting such a measure in the charter in the manner provided by law, viz., “submission to and the approval of the same by a majority vote of the electors; and that such power cannot be redelegated to the village council.” It is the claim of the village that the general legislative policy of the State for many years has been to lodge the power of suppression by local police regulations in the local legislative body, to wit, the common council.

It is well here to refer to section 2769, 1 Comp. Laws, being what may be termed the “ Old Village Law,” and to note that the charter of the village of Grosse Pointe Shores adopted the identical language of subdivision 7 of this section. The court below eliminated from consideration this section of the Compiled Laws as having no bearing on this case. We think that it has an important bearing. It shows the general legislative policy of Act No. 278, Pub. Acts 1909. While the charter does not refer to the section or chapter as provided by section 25 of Act No. 278, we think it does by appropriate reference embrace it, and it may be said that the village charter did incorporate section 2769, 1 Comp. Laws, and that the language used by this court in Fuchs v. Grass Lake Common Council, 166 Mich. 569 (132 N. W. 96), and Lake v. Village of Cedar Springs, 162 Mich. 569 (127 N. W. 690), relating to this statute, applies here. Subdivision “ m ” of section 24 of Act No. 278 is as follows:

“ For exercising all municipal powers in the management and control of municipal property and in the administration of the municipal government, whether such powers be herein expressly enumerated or not; for any act to advance the interest of the village, the good government and prosperity of the municipality and its inhabitants; and for making all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in villages, except where forbidden, or where the subject is covered exclusively by a general law.

The last section of Act No. 278 provides as follow's:

“ No provision of any village charter shall conflict with or contravene the provisions of any general law of the State.”

We should not overlook the provision above referred to in section 21, art. 8, of the Constitution, which gives to the electors of each city and village, under general law, power and authority 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. We are of opinion that the legislature here delegated power to villages to be exercised by local legislation of the common council to pass all laws and ordinances relating to municipal concerns, which includes the power to suppress the liquor traffic, and that this is not in conflict with either the Constitution or general laws of this State; that it may be said that the charter of the village of Grosse Points Shores has practically adopted the provisions of section 2769 of the old village act; and that this is a delegation by the legislature of general police power to the common council, as the regularly constituted authority to legislate upon the subject, within the previous holdings of this court above referred to. We think, therefore, that the circuit court reached the wrong conclusion.

We are of opinion that the provision of the charter and the ordinance in question are valid, and that the order and judgment of the circuit court should be reversed, with costs against the relator.

Moore’, C. J., and Steere, McAlvat, Brooke, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.