In any event, we have more recently held that even express exemptions are not enough to create a conflict.Builders Ass'n v. Detroit , 295 Mich. 272, 294 N.W. 677 (1940).Id . at 275, 294 N.W. 677.
A municipality is precluded from enacting an ordinance if 1) the ordinance is in direct conflict with the state statutory scheme, or 2) if the state statutory scheme pre-empts the ordinance by occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation.See Builders Ass'n v Detroit, 295 Mich. 272, 277; 294 N.W. 677 (1940); see also Walsh v River Rouge, 385 Mich. 623, 637; 189 N.W.2d 318 (1971); Miller v Fabius Twp Board, 366 Mich. 250, 258; 114 N.W.2d 205 (1962). A direct conflict exists under these cases when the ordinance permits what the statute prohibits or the ordinance prohibits what the statute permits.
Confusion should not result from this, since it has been clearly established that the Sunday statute referred to is not a criminal statute. Yerkes v. Smith, 157 Mich. 557, People v. Dixon, 188 Mich. 307 (Ann Cas 1918B, 385) and Crawford v. Huber, 215 Mich. 564 (39 ALR 1392), are authority for the position that the Sunday statutes are not criminal in nature but civil and the penalties provided can only be recovered in civil actions. It is for this very reason that all of the Michigan cases have failed to make any reference to this statute when dealing with criminal ordinances adopted by local municipalities under the police power. Only Builders Association v. City of Detroit, 295 Mich. 272, makes any reference to the Sunday civil statute and admittedly the case does not turn on this point. Since all of the 4 points raised by our Brother overlap to such an extent that basically his arguments are directed to the claim of conflict with the State statute, we do not feel that any further answer is necessary, except to say it is not the judicial function to determine the wisdom or lack of wisdom in adopting certain ordinances.
This precludes a finding of direct conflict between the statute and the charter provision. See Builders Ass'n v Detroit, 295 Mich. 272, 277; 294 N.W. 677 (1940). See also Walsh v River Rouge, 385 Mich. 623, 637; 189 N.W.2d 318 (1971); Miller v Fabius Twp Bd, 366 Mich. 250, 258; 114 N.W.2d 205 (1962).
In contrast, the ordinance does not provide such a defense to potential liability. In Builders Ass'n. v. Detroit, 295 Mich. 272; 294 N.W. 677 (1940), the Michigan Supreme Court held a city ordinance void where it directly conflicted with a state statute. In that case, the city enacted an ordinance prohibiting real estate commerce on Sundays.
In essence, to determine whether a direct conflict exists, this Court must consider whether the ordinance prohibits what state law permits. Detroit City Council v Stecher, 430 Mich. 74, 89; 421 N.W.2d 544 (1988), citing Builder's Ass'n v Detroit, 295 Mich. 272, 277; 294 N.W. 677 (1940); Miller v Fabius Twp Bd, 366 Mich. 250, 258; 114 N.W.2d 205 (1962). In Miller, a determining factor for deciding whether a local ordinance was preempted by state law was whether the area regulated by the ordinance was local in nature as opposed to a general statewide issue.
A municipality is precluded from enacting an ordinance if the ordinance is in direct conflict with the state statutory scheme. Walsh v River Rouge, 385 Mich. 623, 635; 189 N.W.2d 318 (1971); Builders Ass'n v Detroit, 295 Mich. 272, 275; 294 N.W. 677 (1940). A direct conflict exists when the ordinance prohibits what the statute permits.
However, these local regulations may not exclude what the state has permitted. Builders Association v Detroit, 295 Mich. 272; [ 294 N.W. 677] (1940). Since the operation of the Waterford Township zoning ordinance has an exclusionary effect in this case, that portion of the ordinance permitting refusal of a local license to a state licensee is void as applied.
The exemption in Indiana, Kentucky, Michigan, Nebraska, Ohio, Oklahoma, Virginia and West Virginia does extend to selling, but in the last two named States an exempted person may not employ other persons not of his belief on Sunday. Burns' Ind. Stat. Ann., 1956 Replacement Vol., § 10-4301; Ky. Rev. Stat., 1960, § 436.160, Cohen v. Webb, 175 Ky. 1, 192 S.W. 828 (1917); Mich. Stat. Ann., 1957 Rev. Vol., §§ 18.855, 18.856(1), Builders Assn. v. City of Detroit, 295 Mich. 272, 294 N.W. 677 (1940), semble; Neb. Rev. Stat., 1956 Reissued Vol., § 28-940; Page's Ohio Rev. Code Ann., 1954, § 3773.24; Okla. Stat. Ann., 1958, Tit. 21, § 909, Krieger v. State, 12 Okla. Cr. 566, 160 P. 36 (1916); Va. Code, 1960 Replacement Vol., § 18.1-359; W. Va. Code Ann., 1955, c. 61, Art. 8, § 18 [6073]. The meaning of the provision in Illinois, Ill. Rev. Stat., 1959, c. 38, § 549, is not clear.
Here, Madison Heights's power to regulate is subject to the limitations of Michigan's state government. See Mich. Const. art. VII, § 22 ("Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law.") (emphasis added); City of Grand Haven v. Grocer's Coop. Dairy Co., 330 Mich. 694, 698, 48 N.W.2d 362 (1951); Richards v. City of Pontiac, 305 Mich. 666, 673, 9 N.W.2d 885 (1943); Builder's Assn. v. City of Detroit, 295 Mich. 272, 277, 294 N.W. 677 (1940); National Amusement Co. v. Johnson, 270 Mich. 613, 616, 259 N.W. 342 (1935) (provisions of a municipal ordinance which contravene state law are void). Michigan has placed an express limitation on Madison Heights's power to regulate the location of incinerators by enacting § 299.430(4) of the SWMA, and that limitation is not preempted by the CAA.