
    PENINSULAR STOVE CO. v. BURTON.
    Constitutional Law — Class Legislation — Statutes.
    Act No. 384, Pub. Acts 1919, regulating and controlling the installation of warm air heating plants, is held, to be unconstitutional in that its operation is confined to furnaces “inclosed in galvanized sheet iron,” and of- this class, without any apparent reason, it makes an exception of those which are pipeless or have but one register.
    Appeal from Wayne; North (Walter H.), J., presiding.
    Submitted June 6, 1922.
    (Docket No. 16.)
    Decided October 2, 1922.
    Bill by the Peninsular Stove Company against Frank Burton and others to enjoin the enforcement of a statute alleged to be unconstitutional. From a decree for plaintiff, defendants appeal.
    Affirmed.
    
      Lucking, Helfman, Lucking & Hanlon (Laurence M. Sprague, of counsel), for plaintiff.
    
      Walter Barlow (Clarence E. Wilcox, of counsel), for defendants.
   Sharpe, J.

The plaintiff seeks to enjoin the defendants, who are officials of the department of building inspection of the city of Detroit, from enforcing the provisions of Act No. 884 of the Public Acts of 1919. The act is printed in full in the margin. The bill of complaint alleges that the act is unconstitutional and void for several reasons, among them, that the classification is so unreasonable and capricious as to be in violation of the “due process” clauses of the State and Federal Constitutions, and the “equal protection of the laws” clause of the Constitution of the United States. The trial court found the act subject to the claim thus made and granted the relief prayed for. From the decree rendered, defendants appeal.

It is elementary that all property is held subject to the general police power to regulate and control its use so as to secure the) general safety and all reasonable provisions enacted for the prevention of and protection against conflagration is generally recognized as a proper exercise of such power. But legislation to that end must not be unreasonable or discriminatory. It must not single out any class of persons or things and arbitrarily impose burdens upon them not applying to others within the same general class.

The record shows that there are several kinds of heating plants, steam, hot water, warm air and stoves, in which wood, coal or coke may be used as fuel. Out of these the legislature selected a class, warm air, for this special regulatory legislation. While the title indicates an intention to regulate all plants of this class, the first section of the act confines its operation to furnaces “inclosed in galvanized sheet iron.” Of this class an exception is made of those which are pipe-less or have but one register. We have, therefore, not only the selection of a class of heating plant but of a class of this class. To justify such action it must appear that some substantial reason existed for the regulation of this particular kind of heating plant not equally applicable to the others. Is there greater danger of fire from a plant thus installed than from other warm air heating plants? The fire hazard due to the overheating of the furnace itself may be greater when it is inclosed in metal than in brick but no such claim can be made as to the smoke pipes or the pipes leading to the rooms or the registers.

It seems clear to us that the classification here made is not based upon any real or substantial distinction. No sufficient reason has been pointed out for exercising the supervisory control provided for in the act over the installation of a warm air heater inclosed in metal with more than one pipe which does not equally apply to one inclosed in brick or one which has but one pipe.

The following Michigan cases will be found instructive. People v. Berrien Circuit Judge, 124 Mich. 664 (50 L. R. A. 493, 83 Am. St. Rep. 352) ; Simpson v. Paddock, 195 Mich. 581; People v. Sperry & Hutchinson Co., 197 Mich. 532 (L. R. A. 1918A, 797); Haynes v. Lapeer Circuit Judge, 201 Mich. 138 (L. R. A. 1918D, 233); Davidow v. Wadsworth Manfg. Co., 211 Mich. 90. The question presented is fully discussed in 12 C. J. p. 1128, and 6 R. C. L. p. 374. The cases from other jurisdictions are there collected.

We are at all times reluctant to interfere with the acts of the legislative branch of the government but, when the rights of the people secured to them by the Constitution are affected thereby, our duty is plain.

The decree is affirmed, with costs to appellee.

Fellows, C. J., and Wiest, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred. 
      (No. 384.)
      AN ACT to regulate and control the installation- of warm air heating plants, and to provide for the public safety and fire protection in such installations.
      
        The People of the State of Michigan enact:
      
      Section 1. Warm air heating plants, to which this act refers, consist of one or more furnaces inclosed in galvanized sheet iron, and do not include the' pipeless or one register heater.
      Sec. 2. Before proceeding with the installation of any warm air heating plant in cities or villages within the State of Michigan, wherein provisions for building inspection exist, a permit therefor shall be obtained by the heating contractor or owner, from the department of building inspection, under whose jurisdiction the said plant is to be installed. The fee for such permit shall be one dollar which shall be paid by the person applying for such permit to the said department of building inspection, and all money so received shall be credited to the general fund of such city or village.
      Sec. 3. Immediately following the completion of the installation of a warm air heating plant for which the necessary permit has been issued, the heating contractor or owner shall, in writing, so notify the aforesaid department of inspection, whereupon said department shall, immediately following the receipt of the aforesaid notice, cause the same to be carefully inspected, and unless complaint of a violation is made in writing within ten days the said installation will be deemed approved and favorably passed upon.
      
        Sec. 4. No 'warm air heating plant shall he installed in any building intended for occupancy or residential purposes, unless the said warm air heating plant shall have a free air space of at least fifteen per cent, greater than the cross-sectional area of all the warm air pipes, taken from the bonnet of the casing, and shall be of such guaranteed capacity and construction as to provide for the maintenance of temperatures of seventy degrees Fahrenheit in parlors, libraries, main halls, living rooms, dining rooms and bath rooms, and a temperature of sixty-five degrees Fahrenheit in sleeping apartments and kitchens, and the said internal temperature shall be possible of maintenance, while outdoor air is at zero Fahrenheit, without raising the inflowing air at or issuing from registers to temperatures higher than one hundred sixty degrees Fahrenheit: Provided, however, That nothing in this section shall be so construed as to interfere in any way with the right of an owner or his agent from entering into a written contract or agreement for any other specific temperature he may desire.
      Sec. 5. All warm air heating plants shall be set on a brick, cement or such other non-combustible foundation as may be approved by the State fire marshal.
      Sec. 6. All metal for furnace casings of warm air heating plants shall be not lighter than twenty-six gauge galvanized iron and shall be provided with! a lining of asbestos and black iron or corrugated tin.
      Sec. 7. All stacks or wall pipes intended to conduct heated air to the second or third story shall be equal in cross-sectional area to at least two-thirds of the cross-sectional area of the round basement pipes intended for connection therewith.
      
        Seo. 8. First floor wall register boxes must be double or lined between box and floor witb tin and asbestos, and at tbe point of greatest restriction sball equal in cross-sectional area that of the round basement pipes intended for connection therewith. All warm air wall registers shall have free and open area in extent equal to at least ten per cent, greater than the cross-sectional area of the round basement pipes to be used in connection therewith.
      Sec. 9. The cold air for warm air heating plants may be taken either from the inside or outside or may be taken partially from outside and partially from within; in no case, however, shall the cold air be supplied from any basement cellar or furnace room. The cold air to any warm air heating plant shall be conducted to the furnace or heater through galvanized iron, brick or tile boxes, the joints of which shall be dust tight.
      Seo. 10. Round basement pipes for connections between casings of warm air heating plant furnaces or heaters and registers, boxes or wall pipes, having diameters of twelve inches or less, shall be made of I. C., or heavier, bright tin, and those having diameters of over twelve inches shall be made of I. X. bright tin or galvanized iron, not lighter than twenty-eight U. S. standard gauge, and shall have an elevation of at least one inch to the foot. Basement pipes forming connections between warm air heating plant furnace or heater casing and register boxes or wall pipes, shall have horizontal runs of not less than two feet between the casing collar and the register box or wall pipe, except in stores, churches and buildings of one room when a register face fitted with a border can be used. Round basement pipes shall be fitted with, damper so placed as to be easily accessible. Should warm air conductor pipes pass through brick, tile or cement partitions or walls they shall be surrounded by metal thimbles having a diameter of not less than one inch more than the diameter of the said pipe. Should warm air conductor pipes pass through wooden walls or partitions, they shall be provided with ventilated or safety thimbles not less than one inch larger diameter than the pipes passing through them, or such other safety device as may be approved by the State fire marshal.
      Seo. 11. All smoke pipes must be of at least twenty-four gauge black 'iron, and must be as large as smoke pipe collar of furnace provided by manufacturers. Should smoke pipes pass through wooden walls they shall be provided with ventilating or safety thimbles with inside diameter at least two inches greater than the said smoke pipe. The smoke pipe opening through the thimble shall have guides or braces so arranged as to maintain an open space of one inch entirely surrounding the smoke pipe. There shall be a space of not less than eight inches between any smoke pipe and exposed wood or plastered wooden walls or partitions. All exposed wood or wood covered with plaster that may be within twelve inches of smoke pipe shall be shielded or protected by coverings of sheet metal with lining of asbestos sheeting, or such other protection as may be approved by the State fire marshal.
      Sec. 12. A furnace or heater to be installed as component of a complete warm air heating plant shall be set or erected as near as possible to the center of the building in which it is to be installed. The owner, agent, architect or builder shall make all necessary provision for the location of furnaces or heater as hereinbefore specified. No exposed wood or wood covered with plaster shall be placed within twelve inches of the space allotted to or provided for any heater and the casing surrounding same. There shall he an air space of not less than eighteen inches between the top of any heater and the ceiling or joist above it, and a distance of not less than six inches between the top of any metal casing and the ceiling or joist, unless, however, the ceiling is non-combustible.
      Seo. 13. The owner, agent, superintendent, architect or contractor of any new building in which a warm air heating plant is to be installed, shall make ample provisions for the reception of register boxes and wall pipes intended for installation in walls or partitions! of such building.
      Seo. 14. The State fire marshal shall make such rules and regulations as may be necessary to carry any of the requirements of this bill into effect, and any person, firm or corporation. who shall violate any provision of this act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be subject to a fine not to exceed -fifty dollars, or imprisonment in the county jail for a period of not to exceed thirty days, or both in the discretion of the court.
      Seo. 15. This act shall not apply to the installation of heating and ventilating plants in schoolhouses, nor shall it be construed as repealing any of the provisions contained in act number seventeen, Public Acts of nineteen hundred fifteen, nor any amendments thereto.
      Approved May 13, 1919.
     