Harris v. City of Detroit

Black, J.

{concurring). This is not a case where, by a nonunanimous and nonmature decision challenged at the bar, a standing statute is shown as having been misconstrued and misapplied. An ex*537ample of tliat kind of judicial blunder was examined and set right in Park v. Employment Security Commission, 355 Mich 103. Here a 70-and-more-year-old statute, which by its terms created the very right of action this plaintiff pleads, has been construed by a long series of unanimous decisions as denying such right where the pleader is unable to allege and prove a violation of what lawyers have come to know as the “2-inch rule.” The sole question is whether any “cogent circumstances” are disclosed, or may be judicially noticed, which might lead uS to depart from that which was settled so many years ago. I perceive none, and so would stand by the general rule which is applicable to stare decisis in the field of statutory construction distinguished from that of the common law. Such general rule appears in 14 Am Jur, Courts, § 66, pp 287, 288. It was the subject of some little debate in the Parle Case, supra.

Stressed for special emphasis is the fact that we are asked to overrule unanimous cases construing an unamended statute; not a case or line of eases announcing a rule of the common law. As to the latter a court of final appeal has a duty as well as a license; that of tending with care to the sustenance and growth of law made not and amended not by appointed legislative bodies. A prominent instance was Bricker v. Green, 313 Mich 218 (163 ALR 697) and the discourse of Mr. Justice Cardozo found therein. That great writer was not discussing stare decisis in today’s context when he wrote what we find quoted in the Bricher Case. He was treating the rightful application of stare decisis to the common law and, immediately following such quotation, supplied 2 illustrations of common-law rules which, to him, warranted judicial change. One was the “rule of the common law that a surety is discharged from liability if the time of payment is extended by contract between the principal debtor and the creditor *538without the surety’s consent.” (p 152.) The other was the “rule of the common law that a parol agreement, though subsequently made, is ineffective to vary or discharge a contract under seal.” (p 155.)

I prefer to take today’s test from an earlier chapter (Nature of the Judicial Process, Cardozo, p 129):

“In countless litigations, the law is so clear that judges have no discretion. They have the right to legislate within gaps, but often there are no gaps. We shall have a false view of the landscape if we look at the waste spaces only, and refuse to see the acres already sown and fruitful. I think the difficulty has its origin in the failure to distinguish between right and power, between the command embodied in a judgment and the jural principle to which the obedience of the judge is due. Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in despite of it. They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. None the less, by that abuse of power, they violate the law.”

Returning finally to the premises upon which it is said we should overrule, it is pointed out that concrete sidewalks have replaced wooden sidewalks since the turn of the century, and reference is made to “other conditions which have long since faded from our present Michigan scene of superhighways, supermarkets and supercities.” I do not glean the relevance of these “other conditions,” yet would gently suggest that there is indeed another modern and possibly overlooked “condition” which has a direct bearing on questions of duty and risk occasioned by walking on any kind of a sidewalk, wooden or concrete, split or broken, young or old. .

In the days of old, so we are told, milady walked with sturdy shoes and serviceable heels, designed for *539safe ambulation over those wooden sidewalks and other less stable municipal footings. Now, speaking-only as a discreet and respectful observer, I marvel that she is able to stay upright on the newest and best of walkways, wooden (we still have them) or concrete, as those spikes called heels get longer and sharper. No, Brothers, there is no change of condition or risk suggesting overthrow of the 2-inch rule. There is a change, and an even greater risk; over which city fathers have and will have no control whatever. Such are not of the kind which lead courts to overrule earlier decisions.

I concur in affirmance.