Ritholz v. City of Detroit , 308 Mich. 258 ( 1944 )

I am unable to accept the reasoning of Mr. Justice BUTZEL that the ordinance in question "bears such relation to the health, morals, safety and general welfare of the public that its constitutionality cannot be questioned."

In construing the ordinance, I have in mind that there is no claim made that cheap glasses damaging to health were sold or that the sale of a better grade of glasses than advertised had any detrimental effect upon the buyer.

It is to be noted that the ordinance has nothing to do with the regulation of the practice of optometry. Its real purpose is the prevention of false, fraudulent, and misleading advertising of eyeglasses or lenses.

In Carolene Products Co. v. Thomson, 276 Mich. 172, we said:

"The Constitution guarantees to citizens the general right to engage in any business which does not harm the public. People,ex rel. Valentine, v. Berrien Circuit Judge, 124 Mich. 664 (50 L.R.A. 493, 83 Am. St. Rep. 352). The constitutional right to engage in business is subject to the sovereign police power of the State to preserve public health, safety, morals or general welfare and prevent fraud. In the exercise of the police power there must be not only a public welfare to be conserved or public wrong to be corrected, but there must be also a reasonable relation between the remedy adopted and the public purpose. 12 C.J. p. 929."

In People v. Snowberger, 113 Mich. 86 (67 Am. St. Rep. 449), we said:

"Generally, it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of the citizen or interferes with his liberty, it is for the courts to determine whether it relates to and is appropriate to promote such public health."

In State, ex rel. Booth, v. Beck Jewelry Enterprises, Inc.,220 Ind. 276 (41 N.E. [2d] 622, 141 A.L.R. 876), the court had before it an alleged violation of the optometry act. A portion of the act made it unlawful "for any person to publish any advertisement which quotes prices on glasses." The court held that this provision applied only to optometrists and not to those who are merely selling eyeglasses. The case does not decide whether such advertising by a merchant would be unlawful as that question was not in issue. The court, however, expressed its views upon this question in a manner that I am in accord with; it said:

"To forbid price advertising by an optometrist is regulation of his practice. But to forbid price advertising by appellees is merely regulation of their merchandising. * * *

"Truthful price advertising is a legitimate incident to a lawful merchandising business. Deprivation of the right so to advertise has been held to violate the due process clause of the Fourteenth Amendment. * * * We cannot assume that the legislature intended to permit the sale of eyeglasses as merchandise but to deprive the dealer of one of the reasonable and lawful means of procuring purchasers for such merchandise."

The case of Jones v. Bontempo, 137 Ohio St. 634 (32 N.E. [2d] 17), was an action against the State board of barber examiners to set aside, vacate or modify an order suspending plaintiff's license certificate as a barber. The board revoked plaintiff's certificate because he advertised on the window of his shop: "Haircutting twenty-five cents" contrary to an act establishing the State board of barber examiners. The court there said:

"The trade of barbering, operating as it does directly on the person of the customer, affects the health, comfort and safety of the public and may be regulated within reasonable limits by the legislative branch of the government under that power known as the police power, ``conceded to reside in the people's representatives, which is rightfully exercised by the regulation of the use of private property, or so restraining personal action, as to secure, or tend to the comfort, health, or protection of the community.' State v. Gardner, 58 Ohio St. 599,606 (51 N.E. 136, 65 Am. St. Rep. 785, 41 L.R.A. 689). See, also, 8 Ohio Jur. p. 334, § 229; 11 Am. Jur. p. 972, § 247.

"Therefore, those engaged in the occupation of barbering or those desiring to pursue that business may be examined as to their competency and fitness and are subject to supervision and control in the matters of cleanliness, sanitation, conduct, habits, infectious and contagious diseases, and things of that kind. * * *

"How the mere advertising of the price of haircuts as done by the plaintiff could in any wise affect public health or welfare is difficult to understand.

"If this legislation, absolutely prohibiting the advertising of prices of barber services, were to be upheld, it would likewise be necessary to uphold legislation prohibiting the vendors of groceries, meats or other commodities from advertising prices thereof in any manner, the unreasonableness of which is at once apparent.

"This court is unanimously of the opinion that the particular legislation complained of in this case unduly interferes with the constitutional prerogatives of plaintiff as to freedom of action, speech and property rights."

In my opinion the evil sought to be corrected by the ordinance is a business evil. The ordinance has no relation to public health and is an unlawful interference with private business. It is void as being in violation of the Fourteenth amendment of the United States Constitution.

The decree of the trial court is reversed, without costs as a constitutional question is involved.

NORTH, C.J., and STARR, WIEST, and BOYLES, JJ., concurred with SHARPE, J. REID, J., took no part in the decision of this case.