Samuels v. Couzens

183 N.W. 925, 215 Mich. 328, 1921 Mich. LEXIS 768

• Court: Michigan Supreme Court
• Decided: July 19, 1921
• Docket: Calendar No. 29,470
• Status: Published

Opinions

Sharpe, J.

The common council of the city of Detroit, in July, 1919, adopted an ordinance entitled:

“An ordinance to regulate and license the business of selling jewelry, other than second-hand jewelry in the city of Detroit.”

It became effective on July 30, 1919. The plaintiff on September 4th applied to the defendant as mayor of the city to issue him a license pursuant thereto. It is conceded that his application and bond complied with the requirements of the ordinance. The defendant refused to issue the license for the reason that plaintiff had theretofore been in the habit of deceiving and defrauding the public as to the quality of the jewelry sold by him and had so conducted his business that it was not in the public interest that he should be permitted to continue the same. The plaintiff, claiming that no discretion was lodged in the defendant under the ordinance, brought mandamus to compel him to issue the license. The matter was heard in the circuit court on petition and answer. The trial court held with plaintiff and ordered the writ to issue. Defendant seeks a review of the proceeding in this court by certiorari.

The validity of the ordinance is not before us for consideration. The plaintiff asked, for and was granted relief pursuant to its provisions. By so doing, he conceded its validity. The trial judge, in his opinion, suggests the question as to whether the power conferred on the mayor “comes within the mandate to provide for guarding the public peace and health and protecting the safety of persons and property,” and says, “Upon that we are not to pass at this time.” A court should not exercise the power conferred on it of deciding whether the act of a co-ordinate branch of the government is void except in cases where it is squarely presented, or in cases where the jurisdiction of the court is involved, as in Anway v. Railway Co., 211 Mich. 532. We refer to it only because, subsequent to the submission of the case in this court, briefs were filed, at our request, in which the question is ably discussed.

The only question before the court is whether, under the ordinance, the defendant may exercise a discretion in issuing a license.

The controlling provisions of the ordinance are:

“Section 1. No person, firm or corporation shall engage in the business of selling jewelry, other than second-hand jewelry without first having obtained a license from the mayor of the city of Detroit.

“Section 2. Any person, firm or corporation desiring to engage in the business of selling jewelry shall make application in writing to the mayor of the city of Detroit, stating the location in which he desires to engage in business, and containing an agreement on the part of the applicant that he will accept the license, if granted him, and that it may be revoked at the will of the mayor.

“Before granting a license it shall be the duty of the mayor to require a sufficient surety bond in the amount of $200 to cover any loss or damage to any citizen doing business with such licensee. A fee of $1 shall be charged for the issuance of this license which shall be granted for a period of one year, but all licenses shall expire July 1st of each year.” * * *

The purpose of the ordinance as expressed in its title is “to regulate and license.” The fee charged cannot be said to be in the nature of a tax imposed on the particular class of business to be affected by it. The fact that no rules or conditions are prescribed to govern the action of the mayor may well be urged as affecting its validity, but in our opinion is not decisive of the question whether the power vested in ’him is mandatory or discretionary. We are but called upon to construe it as it reads and not in view of any’ hardship which may result from anticipated arbitrary or capricious conduct on the part of the mayor in the performance of the duties imposed on him under it.

The language employed does not in express terms confer any discretionary power. Section 2, however, provides that the application shall contain “an agreement on the part of the applicant that he will accept the license, if granted Mm, and that it may be revoked at the will of the mayor.” The application presented by the plaintiff to the mayor contained this provision. The charter of the city (chap. 3, § 7) provides that one of the powers and duties of the mayor is to “issue and revoke licenses in all cases where licenses may be granted hereunder and under the ordinances of the city.” In 25 Cyc. p. 622, the rule is thus stated:

“The power vested in the officer or public body to grant licenses, unless mandatory in terms, carries with it the right/to exercise a reasonable discretion; but this discretion is to be exercised reasonably, not arbitrarily.”

Among the cases cited in support of this rule are People v. Grant, 126 N. Y. 473 (27 N. E. 964); People v. Wurster, 14 App. Div. 556 (43 N. Y. Supp. ). In the Grant Case, the authority conferred on the mayor reads as follows:

“The mayor shall have authority to grant licenses to any person engaged in and carrying on the business of an auctioneer, or desiring to be so engaged, on such person filing a bond,” etc.

In the opinion it is said:

“The act does not, in terms or by fair implication, require the mayor to grant such licenses, but, by necessary implication, confers the power to refuse them when, in his judgment, he thinks the public interest requires it. A power to grant a privilege to one is inconsistent with the possession on the part of another of an absolute right to exercise such privilege. The requirement that a person must secure leave from some one to entitle him to exercise a right, carries with it, by natural implication, a discretion on the part of the other to refuse to grant it, if, in his judgment, it is improper or unwise to give the required consent.”

In the Wurster Case the court says:

“It is now quite well settled by authority that public policy requires that power, not imperative in terms, vested in the chief magistrate of a city to grant licenses, should be deemed discretionary.”

A somewhat similar question was presented in Thorpe v. Mayor, etc., of Savannah, 13 Ga. App. 767 (79 S. E. 949). The court held that—

“The power vested in an officer or public body to grant licenses, unless mandatory in terms, carries with it the right to exercise a reasonable discretion.”

The Wurster Case is quoted from at length in support of this holding.

We have not overlooked the decision in People v. Perry, 13 Barb. (N. Y.) 206, on which plaintiff relies, which apparently holds to the contrary. It can only be distinguished, if at all, by the fact that in that case the mayor refused to grant any licenses whatever. Plaintiff’s counsel relies on the words “which shall be granted” in the second paragraph of section 2 as imposing a mandatory duty on the defendant. In our opinion, these words apply only to the period for which the license shall be granted, one year.- We therefore conclude that the power conferred on the mayor is not mandatory in form and that it confers on him a reasonable discretion in the issue of such licenses. There is no, claim that he did not so exercise it.

It follows that the order made that a writ, of mandamus issue must be set aside and the petition therefor dismissed, with costs to defendant.

Steers, C. J., and Moore, Fellows, Stone, and Clark, JJ., concurred with Sharpe, J.