Walber v. Wayne Circuit Judge

2 Mich. App. 145 (1966) 138 N.W.2d 772

WALBER
v.
WAYNE CIRCUIT JUDGE.

Docket No. 992.

Michigan Court of Appeals.

Writ denied January 3, 1966. Leave to appeal granted March 23, 1966.

Norman E. Conn (E. Donald Goodman, of counsel), for plaintiff.

Robert Reese, Corporation Counsel, and Robert D. McClear, Assistant Corporation Counsel, for defendant.

Leave to appeal granted by Supreme Court March 23, 1966. See 377 Mich. 705.

QUINN, P.J.

This is an original proceeding in mandamus^[1] to require defendant to grant plaintiff a trial de novo of her conviction for violating a city of Detroit ordinance. The complaint also requests this Court to declare that the commission of an ordinance violation is a crime and that the 1963 Michigan Constitution guarantees a right of appeal which is not discretionary with the judges of the circuit court.

There are three issues presented, namely: is there an appeal as of right to the circuit court of Wayne county and a trial de novo therein for a person convicted, in recorder's court of Detroit — traffic and ordinance division, for violation of a city ordinance? If not, is this a denial of equal protection of the law? Is the commission of an ordinance violation a crime?

Plaintiff was convicted of violating sections 39-1-40 and 39-1-42 of municipal code of Detroit (1964) and was sentenced to a fine or jail term. Section 39-1-40 prohibits maintenance of a nuisance and section 39-1-42 authorizes the commissioner of health to abate the same. The manner in which plaintiff kept a number of dogs in and about a private residence was the nuisance of which complaint was made. Following conviction, plaintiff attempted a general appeal to the Wayne circuit court but was prevented from perfecting it because the recorder's court clerk refused to accept the appeal fee and certify the case on appeal. Plaintiff then filed complaint in Wayne circuit court for superintending control in the nature of mandamus^[2] to require the clerk of the recorder's court to perform these acts. This relief was denied by the present defendant, and this mandamus action followed.

Plaintiff contends that violation of an ordinance is a crime and Const 1963, art 1, § 20, provides she has an appeal as a matter of right. Claiming that GCR 1963, 785.1(1) makes GCR 1963, 701.1^[3] and 701.10 applicable to such appeal, she argues the appeal is a trial de novo in circuit court. If this is not true, she says she is denied equal protection of the laws (Const 1963, art 1, § 2, and US Const, Am 14, § 1) because a person convicted of a similar offense in Wayne county but outside Detroit does have an appeal to circuit court of Wayne county in the form of a trial de novo. Appeals from recorder's court — traffic and ordinance division for violation of city ordinances have been by certiorari (now superintending control).^[4] See City of Detroit v. Wayne Circuit Judge (1925), 233 Mich. 356.

The first question to be answered is, what does "appeal" in Const 1963, art 1, § 20, mean? The term is ambiguous in the sense that on appeal from justice of the peace court to circuit court, a misdemeanor conviction is tried de novo, but an appeal from circuit court for the same conviction is heard on the record. The reason is that no record is made in justice court. This is the reason for the provision in GCR 1963, 701.10 that "review in the circuit court is to be a retrial of issues upon evidence to be introduced in the reviewing court." It is not clear from the statement of delegates what the framers of the new Constitution intended "appeal" to mean. See 1 Official Record Constitutional Convention 1961, pp 562-568. In Pfeiffer v. Board of Education of Detroit (1898), 118 Mich. 560 (42 LRA 536), the Supreme Court said with respect to constitutional interpretation (p 564):

"In determining this question, we should endeavor to place ourselves in the position of the framers of the Constitution, and ascertain what was meant at the time; for, if we are successful in doing this, we have solved the question of its meaning for all time. It could not mean one thing at the time of its adoption, and another thing today, when public sentiments have undergone a change. (Citing authorities.) It is therefore essential that we determine the intent of this provision by reference to the state of the law or custom previously existing, and by the contemporaneous construction, rather than attempt to test its meaning by the so-called advanced or liberal views obtaining among a large class of the community at the present day."

This test was adopted by a unanimous court in Holland v. Clerk of Garden City (1941), 299 Mich. 465, 470; and by a majority of the participating justices of the court in Burdick v. Secretary of State (1964), 373 Mich. 578, 584. Applying it here, at the time the Constitution of 1963 was adopted, appeal from city ordinance conviction in traffic and ordinance division of recorder's court meant certiorari (now superintending control) to circuit court. See City of Detroit v. Wayne Circuit Judge, supra. From this we conclude "appeal" in Const 1963, art 1, § 20, does not have the meaning contended for by plaintiff, and in the case before us "appeal" means appeal to the Court of Appeals. This result conforms with the statutory jurisdiction of the Court of Appeals. See PA 1961, No 236, § 308, as added by PA 1964, No 281, CL 1948, § 600.308, subd (1) (Stat Ann 1965 Cum Supp § 27A.308, subd [1]). It also conforms with the rule promulgated by the Supreme Court covering appeals to the Court of Appeals. See GCR 1963, 806.1, 373 Mich. xxxvii.

In resolving plaintiff's contention that this interpretation denies her equal protection of the law, it must be borne in mind of what she was convicted. It was for violation of an ordinance regarding nuisances. Michigan has long recognized that local conditions and interests demand different regulations and that violation of such regulations which relate to acts and omissions that are not embraced in the general criminal legislation of the State may be treated differently than are violations of the general laws. In re Cox (1902), 129 Mich. 635, 636. Cox involves right to trial by jury which, if not more fundamental than right of appeal, is certainly of longer standing in this State. There is no showing on this record that the offense plaintiff is charged with is covered by general legislation, and this Court has not found any State statute on the subject. That differentiation of this sort does not violate US Const, Am 14, § 1, see Missouri v. Lewis (1879), 101 U.S. 22 (25 L ed 989) and Bailey v. United States (1938), 69 DC App 25 (98 F2d 306). If it does not violate US Const, Am 14, § 1, this Court can see no reason for holding that it violates Const 1963, art 1, § 2.

This opinion deals only with the problem before this Court on this appeal. It does not involve the conviction under city of Detroit ordinance covering an offense also covered by general criminal legislation of the State. The answer to this problem may be found in 3 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 1973. In re Cox, supra; and the language of the United States Supreme Court in Missouri, supra, referring to US Const, Am 14, § 1, where it said (p 30), "it contemplates persons and classes of persons. It has not respect to local and municipal regulations that do not injuriously affect or discriminate between persons or classes of persons within the places or municipalities for which such regulations are made."

We find it unnecessary to determine whether violation of an ordinance is a crime. That some ordinance violations may not be crimes see In re Cox, supra, and cases cited therein on page 637.

In view of what has already been said, we further find that it is not necessary to say anything more about the meaning of right of appeal in Const 1963, art 1, § 20. However, since the statute, PA 1961, No 236, § 308, as added by PA 1964, No 281, CL 1948, § 600.308, subd (1) (Stat Ann 1965 Cum Supp § 27A.308, subd [1]) grants the Court of Appeals jurisdiction on appeals from all final judgments from the recorder's court and GCR 1963, 806.1, supra, includes appeals from all final judgments from recorder's court, we conclude that appeal from final judgment of recorder's court is to Court of Appeals, regardless of the division of recorder's court from which the appeal is taken. Such an appeal is on the record and it is incumbent on recorder's court to make provision for a record in all cases disposed of by it on final judgment.

For the reasons herein stated the writ of mandamus is denied. A public question being involved, no costs are awarded.

J.H. GILLIS and WATTS, JJ., concurred.

NOTES

[1] See GCR 1963, 816.2, 373 Mich. lx and GCR 1963, 711.4(1), 373 Mich. cvii.

[2] GCR 1963, 711.3.

[3] See 373 Mich. civ.

[4] See GCR 1963, 711.3.