Eddiе Roberts, who is not a party to this action, was charged with a violation of Section 66-4-2 of the Detroit Municipal Code which reads as follows:
"It shall be unlawful for any person to transport or to have in possession in or upon any vehicle a firearm unless the same is unloaded in both barrel and magazine and carried in the luggage compartment of the vehicle. It shall be unlawful to carry a firearm on any public street or in any public place unless it is unloaded and in a case.”
On July 12, 1972, Honorable William Hague, Judge of the Traffic & Ordinance Division of the Recorder’s Court for the City of Detroit heard the proofs and found the defendant not guilty. His decision to acquit Roberts was not based upon the evidenсe. Instead, Judge Hague said that the City of Detroit was without authority to enact a gun control ordinance because the gun control field hаd been preempted by the State Legislature. He said:
*226 " * * * The State of Michigan has enacted extensive and comprehensive legislаtion dealing with firearms. It includes statutes which cover the licensing of, the purchasing, carrying or transportation of a pistol, safety inspection and registration of pistols, carrying a concealed weapon, carrying firearms with unlawful intent, the sale of firearms and still other statutes covering the discharge of a firearm without malice, injury of a person by the discharge of a firearm without malice, the possession аnd use of firearms by a person under the influence of liquor or drugs, discharging firearms and injuring persons, and the reckless use of firearms. All of these acts are covered by state statute.
"The broad scope of these statutes in my opinion manifest the state legislature’s intent to occupy the field of firearms legislation and appear to be reasonable.” 1
Claiming that the other judges on the same court are treating the ordinance as valid, the City of Detroit filed a complaint for an order of superintending control against Judge Hague.
The Honorable Roland L. Olzark, Wayne County Circuit Judge, filed a written opinion, citing authorities, several of which will be cited herein, and concluded that the state hаd not preempted the gun control field and that Section 66-4-2 is valid. An order of superintending control was issued. It is from this order that Judge Hague appeals.
While appellant originally challenged the propriety of superintending control as an appropriate proсeeding to raise the issue, he ultimately withdrew this objection and now concedes that the procedure followed was approрriate and jurisdictionally proper. We agree.
People v Gebarowski,
47
*227
Mich App 379;
Several other issues were raised for the first time on appeal. One such issue to whiсh much scholastic effort was devoted in the appellate briefs and arguments involves the validity of certain mandatory sentencing prоvisions in the ordinance. Section 66-5-1. The record does not indicate that either Judge Hague or Judge Olzark dealt with these issues, nor do we, such issues being raised for the first time on appeal. 2
Closely akin to the preemption doctrine, but different, is the rule or doctrine that an ordinanсe or provision of an ordinance which is in direct conflict with a statute is void. This distinction was recognized in
Miller v Fabius Township Board,
"In City of Howell v Kaal, supra [341 Mich 585 ;67 NW2d 704 (1954)], this Court held that an ordinance may nоt invade a field completely occupied by statute but may enter an area not preempted by the State act, and further held thаt what the State law expressly permits an ordinance may not prohibit.” (Emphasis in original).
Counsel devoted some effort in their brief and argument to the proposition that the provisions of Section 66-4-2 were or were not in conflict with specific provisions of state statutes.
If the state has
preempted
the field then the оrdinance is void even if it is not in conflict with state statutes, and it would be void even if the ordinance followed the exact language of the state statutes in defining prohibited conduct. If the state
*228
has not preempted the field and if some provision of the ordinance was in
conflict
with the state statutes then, perhaps, the balance of the ordinance would be valid.
Ritter v City of Pontiac,
It does not appear to us that Section 66-4-2 prohibits anything which the state law expressly allows.
In their final analyses, the judges below based their decisions upon the application or non-application of the doctrine of preemption alone, and not on the language of Section 66-4-2. For these reasons we deal with thе preemption issue as the primary issue on appeal.
The leading preemption cases are cited in
Miller v Fabius Township Board, supra,
and in
Walsh v River Rouge,
The most logical guideline we find in all of the cases appears in Walsh, supra, wherein the Supreme Court at p 639 said:
"Michael H. Feiler, in an article entitled, Conflict Between State and Local Enactments — The Doctrine of Implied Preemption, appearing in 2 Urban Lawyеr 398 (1970), makes this observation (pp 404, 405):
" 'Preemption occurs where there is a conflict between the legislative intent to regulate an area and the very act of local legislation in conflict with this legislative intent.
" 'The question is properly whether the scheme can work effectively in the face of local intervention.’ ” 3
*229 Can the state’s firearms control scheme work effectively in the face of local intervention?
In Walsh, the Supreme Court went to great lengths to explain the conflicting policy considerations and to demonstrate why unified statе action is necessary in dealing with impending public crisis or disaster.
The problems that the City of Detroit is attempting to deal with by adoption of а firearms control ordinance normally involve only a few people at a time. It has not been demonstrated that the appliсation of a city gun control ordinance in a given situation would in any way interfere with the orderly application of state gun control stаtutes in other situations.
While we are not bound by appellate court decisions of other states, we do respect them and we notе that when confronted with similar preemption challenges, firearms control ordinances in New York City and the City of Chicago were upheld.
Grimm v City of New York,
"[L]аrge and compact aggregations of people necessarily give rise to peculiar conditions and create peculiar wants, and which, * * * are not common to rural populations and to the state at large. Special provisions are therefоre necessary for the health, safety, convenience, and good government of populous communities crowded within a narrow sрace, and these must be supplied.”
We agree. 4
We therefore conclude that the State of Michigan has not preempted firearms contrоl. The cir *230 cuit court order of superintending control is affirmed.
No costs.
Notes
The state firearms control statute, MCLA 750.231a; MSA 28.428(1), was amended by
People v Scott,
See, also, Note, Conflicts Between State Statutes and Municipal Ordinances, 72 Harvard Law Review 737, 744-747 (1959).
See, also, People v Hanrahan,