156 Mich. 376 | Mich. | 1909
This is an application by relator, who is assistant corporation counsel for the city of Detroit, for a writ of mandamus to compel respondent to vacate certain orders made by him, dismissing two cases brought by the proper authorities under an ordinance of the city
“ The said council may also license and regulate * * * the keepers of junkshops * * * and to regulate * * * the buying or selling of old junk. * * *” Detroit Charter (1904), § 187.
The ordinance in question under which the cases were brought provides as follows:
“ It is hereby ordained by the people of the city of Detroit:
“ Section 1. That section 1 of an ordinance entitled, ‘An ordinance prescribing certain limits within the city of Detroit where a junkshop or what is commonly known as a junkshop, for the purchase, storage and sale of junk, rags, old rope, papers, bagging, old iron, brass, copper, tin, empty bottles, slush or lead, shall not hereafter be established or maintained and the storage or buying and selling of the same be carried on,’ approved Sept. 3, 1907,*378 be and the same is hereby amended so as to read as follows :
“Sec. 1. No building, place or lot where junk, rags, old rope, papers, bagging, old iron, brass, copper, tin, empty bottles, slush or lead are bought, sold or stored shall be hereafter used, established or maintained within the territory within the city of Detroit described as all that portion of the city of Detroit bounded on the west by Beaubien street, on the east by Russell street, on the south by Gratiot avenue, and on the north by alley north of and parallel with Napoleon street; also all that portion of the city of Détroit lying north of the alley north of and parallel with Napoleon street and between the boundary lines of the third ward to the northerly city limits; also all that portion of the city of Detroit lying north of the alley north of and parallel with Napoleon street and between the boundary lines of the fifth ward to the northerly city limits: Provided that this ordinance shall not be construed to apply to any junkshop now being conducted or maintained within the territory herein described.’ ”
It is conceded that the common council has plenary power for the purpose of licensing and regulating the persons engaged in the business of buying and selling old junk, and that such reasonable regulations as the council may see fit to adopt are not open to judicial investigation. It is insisted that, by the provision of the charter above quoted, no power was given to regulate the storage of junk, and therefore this ordinance is invalid. We do not agree with this contention. The rule relied upon by respondent, that the powers which may be exercised by municipal corporations are all derived from the legislature and must be found (a) in the express words of the grant, or (5) necessarily incident to the powers expressly granted, and (c) powers which are essential and indispensable to the declared objects and purposes of the corporation, has always been recognized by this court (Taylor v. Railway Co., 80 Mich. 82), and that an ordinance cannot exceed the limit prescribed by the charter. The charge in the first complaint is that the defendant unlawfully kept “a place for the storage of junk commonly called a junk
“To adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws.” 24 Am. & Eng. Enc. Law (2d Ed.), p. 243 et seq.
The storing or keeping of old junk which this ordinance aims to regulate is necessarily incident to the business of buying and selling junk.
Respondent’s second contention is that this ordinance is unreasonable, and therefore invalid. This is not the usual ordinance enacted under charter powers for the purpose of the regulation of a certain trade or occupation as upon a first reading would appear. This ordinance is not one providing for the confinement of a class of business within a certain restricted territory easily supervised by the authorities. Nor does it propose to exclude all of a certain class from certain territory as did the ordinance under consideration in Churchill v. Detroit Common Council, 153 Mich. 93. It is an ordinance prescribing a certain restricted locality in which a certain class of business shall not be established or maintained, with a proviso ‘£ that this ordinance shall not be construed to apply to any junkshop now being conducted or maintained within the territory herein described.” There is therefore an express prohibition against disturbing those already established in this district, and it appears in the return of respondent, to which there is no denial entered, that the traffic in junk has become centralized within the restricted locality. The validity of the ordinance is not
Our conclusion is that this ordinance is both unreasonable and unlawfully discriminating. It is therefore unconstitutional and void. Tugman v. City of Chicago, 78 Ill. 405.
The action of the recorder’s court is sustained. The writ of mandamus is therefore denied.