People v. Raub

9 Mich. App. 114 (1967) 155 N.W.2d 878

PEOPLE
v.
RAUB.

Docket No. 2,283.

Michigan Court of Appeals.

Decided December 6, 1967.

Robert Reese, Corporation Counsel, and Robert D. McClear, Assistant Corporation Counsel, for the people.

Donald G. Schiff, for the defendant.

HOLBROOK, P.J.

Defendant, Rodney Raub, was found guilty in recorder's court of the city of Detroit, traffic and ordinance division, of keeping open and operating a coin-operated, self-service car wash between the hours of 10 p.m. and 7 a.m. in violation of ordinance No 119-G, section 39-1-90.3 of the city of Detroit.^[1] Defendant has appealed to this Court^[2] challenging the validity and constitutionality of the ordinance on several grounds as follows:

(1) The ordinance is an unconstitutional deprivation of property without due process of law (an unreasonable exercise of police power).^[3]

(2) The ordinance denies equal protection of law.^[4]

(3) The ordinance is void because of unlawful delegation of enforcement duties.

(4) The ordinance was not enacted in compliance with the charter of the city of Detroit.

1. EXERCISE OF POLICE POWER.

It is fundamental that "where the exercise of police power is applicable, the provision of the Constitution declaring that property shall not be taken without due process of law is inapplicable." Wyant v. Director of Agriculture (1954), 340 Mich. 602, 608. Also, see People v. Damm (1914), 183 Mich. 554. At trial, defense counsel failed to urge or even state any particular ground or theory of unconstitutionality;^[5] however, the trial court in rendering its decision stated as follows:

"It seems to me we have a question about a reasonable exercise of police power, and it would seem to me that the common council being the legislative body has a duty to conduct hearings and to enact laws which are for the betterment of the public health and welfare and morals of the public. And after the hearings, they have come up with an ordinance that restricts the operation of these businesses, probably due to several reasons, one of which would be the fact that there are no persons whatsoever on duty at all times to see that noise and other things don't go on throughout the middle of the night. I think that in view of the fact they were public hearings and in view of the fact, I believe, that there is here a reasonable exercise of police power, that I'll find the defendant guilty."

There are essentially 3 points, to be taken in progression, necessary to a determination of the validity and constitutionality of the instant ordinance as an exercise of the police power: First, whether a coin-operated, self-service car wash business is subject to regulation; second, whether the hours during which the business might operate may be fixed by a municipal ordinance; and third, whether there is a reasonable relationship between the remedy and the public purposes necessitating its enactment.

People v. Victor (1939), 287 Mich. 506, 512 states unequivocally that "it is clear that any business or business practice may be regulated if such regulation is necessary to the public welfare, health, morals and safety." (Emphasis supplied.) The record below indicates that the ordinance was necessary for several reasons: nearby residents had made numerous complaints of litter, excessive noise, beer drinking, and other disturbances during the late evening and early morning hours at defendant's car wash; these complaints were testified to at several hearings held prior to the enactment of the ordinance; a complaint seeking a preliminary and permanent injunction barring the operation of the car wash during the late evening and early morning hours had been filed in Wayne circuit court on the grounds that the business constituted a nuisance.

The nature of defendant's business is of relatively recent development. However, we find it to be a proper subject for regulation.

"The ``police power' is said to be a power or organization of a system of regulations tending to the health, order, convenience, and comfort of the people and to the prevention and punishment of injuries and offenses to the public. * * * It has for its object the improvement of social and economic conditions affecting the community at large and collectively with a view to bring about ``the greatest good of the greatest number.' Courts have consistently and wisely declined to set any fixed limitations upon subjects calling for the exercise of this power. It is elastic and is exercised from time to time as varying social conditions demand correction." People v. Brazee (1914), 183 Mich. 259, 262.

The hours of business may be regulated pursuant to the exercise of police power where there is a necessity therefore and a legitimate and reasonable relation to public health, welfare, peace, and safety. See, 16A, CJS, Constitutional Law, § 671.

The ordinance has a legitimate and reasonable relationship between the remedy adopted and the public purposes necessitating its enactment. It requires defendant to close the car wash after 10 p.m. thereby eliminating excessive noises and undesirable disturbances and a fortiori preserving to nearby residents peace and tranquillity during late evening and early morning hours with reference to public health and welfare. The ordinance also thwarts potential rowdiness, "gang" groupings, and like activity thereby sustaining public safety. We find the ordinance in question to fall within the lawful and constitutional exercise of the police power and therefore conclude that it does not constitute a deprivation of property contrary to the constitutional guarantee of due process of law.

2. EQUAL PROTECTION OF LAW.

Defendant contends that the ordinance is invalid as a denial of equal protection of law because it applies only to coin-operated car washes or to places where 2 or more cars may be washed simultaneously.

The rule to be applied in solving classification questions was set forth in Gauthier v. Campbell, Wyant & Cannon Foundry Company (1960), 360 Mich. 510, 514, and fully restated in Tracer v. Bushre (1966), 3 Mich. App. 494, 499, as follows:

"The standards of classification are:

"``1. The equal protection clause of the Fourteenth 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.'"

The classification fixed by the ordinance in question does not appear to be arbitrary; and it appears to have some reasonable basis, i.e., a coin-operated or self-service car wash lacks supervision in its operation and therefore requires regulation. Conversely, a single stall car washing facility, not coin-operated or of a self-service nature, such as those found in gasoline stations, does not lend itself to the "evils" heretofore ascribed to a coin-operated, self-service car wash and therefore does not require regulation.

3. DELEGATION OF ENFORCEMENT DUTIES.

Defendant asserts the ordinance to be void because it unlawfully delegates police duties (see section 39-1-90.1 of the ordinance, supra) to the owner or operator of a wash rack or motor vehicle laundry. He intimates, but fails to state specifically or present to this Court, the existence of other ordinances of the city of Detroit regulating "every matter" contained in the particular section of the ordinance delegating such duties.

No cases, authorities or compelling reasons are given this Court as supporting this assertion of defendant — apparently there are none. An appellate court cannot effectually review matters inadequately presented and argued to it. "The appellant himself must first adequately prime the pump; only then does the appellate well begin to flow." Mitcham v. City of Detroit (1959), 355 Mich. 182, 203.

4. ORDINANCE ENACTMENT.

Defendant questions the validity of the ordinance by asserting that it was not enacted in accordance with the charter of the city of Detroit. The argument propounded is that the ordinance fails to state a public emergency on its face and therefore could not take effect until the 30th day after its approval.^[6] This matter was not raised in the lower court but is raised in this Court for the first time. Therefore, it will not be considered. People v. Wright (1967), 6 Mich. App. 495; People v. Fore (1966), 5 Mich. App. 132; People v. Willis (1965), 1 Mich. App. 428.

Affirmed.

BURNS and McGREGOR, JJ., concurred.

NOTES

[1] "An ordinance * * * to provide for the regulation of wash racks and motor vehicle laundries and to regulate the hours of operation. * * *

"Section 1. * * *

"Sec. 39-1-90.1. It shall be the duty of the owner or operator of any wash rack or motor vehicle laundry to:

"(A) Keep the premises free of debris and litter;

"(B) Prevent excessive noise and rowdiness;

"(C) Maintain peace, order and safety on the premises.

"Sec. 39-1-90.2. For the purposes of this ordinance a wash rack or motor vehicle laundry shall include all operations on the premises:

"(A) Where two or more motor vehicles may be washed simultaneously; or

"(B) Where facilities are provided for coin-operated or self-service washing of motor vehicles.

"Sec. 39-1-90.3. Wash rack or motor vehicle laundries (as defined herein) shall not be open or operate between the hours of 10:00 p.m. and 7:00 a.m.

"Sec. 2. This ordinance is declared necessary for the preservation of the public peace, health and safety and is hereby given immediate effect."

[2] Walber v. Wayne Circuit Judge (1966), 2 Mich. App. 145.

[3] US Const, Am 14, § 1; Const 1963, art 1, § 17.

[4] US Const, Am 14, § 1.

[5] See People v. Hall (1939), 290 Mich. 15; McBride v. Jacob (1918), 201 Mich. 525; and Fitch v. Board of Auditors of Claims Against Manitou County (1903), 133 Mich. 178.

[6] Charter of the city of Detroit, title 3, chap 1, §§ 17 and 18.