PEOPLE
v.
POUCHER
CITY OF ADRIAN
v.
POUCHER.
Docket No. 23294.
Michigan Court of Appeals.
Decided January 27, 1976.*134 James E. Sheridan, Assistant City Attorney, for the people.
Beardsley, Forsthoefel & Crause, for defendant.
Before: McGREGOR, P.J., and T.M. BURNS and N.J. KAUFMAN, JJ.
Leave to appeal applied for.
PER CURIAM.
On June 14, 1974, defendant was cited by the Adrian City Police Department for not wearing a crash helmet while operating a motorcycle, a violation of a city ordinance. Defendant moved to quash the summons on the grounds that the ordinance is unconstitutional. The trial court held the ordinance unconstitutional basing its decision on our opinion in American Motorcycle Association v Department of State Police, 11 Mich. App. 351; 158 NW2d 72 (1968).
On January 23, 1975, the circuit court for the County of Lenawee affirmed the district court. We granted leave to appeal on May 13, 1975.
The ordinance in question, § 6.23 of the Uniform Traffic Code, reads as follows:
"A person operating or riding on a motorcycle or motor driven cycle shall wear a crash helmet approved by the department of state police."
The only issue raised on this appeal is whether the above ordinance is constitutional.
In American Motorcycle Association v Department of State Police, supra, we held that a similar state statute was unconstitutional. This appeal *135 challenges the validity of that decision. We held that the interest of the state in highway safety and in keeping its citizens healthy and self-supporting does not extend to requiring motorcyclists and their riders to wear crash helmets. The basis of that holding was that there is no real and substantial relationship between the statute and the protection of the public health, safety, morals or general welfare.
The controversy in this case centers around the proper exercise of the police power by the Legislature and the test of the legitimacy of an exercise of the police power. The city primarily argues that it is the Legislature's and not the court's function to determine what measures are proper subjects of the police power and that police regulations must be sustained unless so unreasonable and arbitrary as to invade fundamental constitutional rights. The city also asserts that the operation of a motor vehicle on the public highways is a privilege not a right, and that the Legislature's regulation of highway use is a proper exercise of the police power.
The defendant argues that it is not a proper function of the police power to protect the individual from his own acts; an individual is free to act according to his own notions of self-interest provided that what he does has no ill effect upon his fellow man. Defendant asserts that before the state can regulate individual conduct, it must demonstrate that such regulation is conducive to the public health, safety, morals or general welfare.
In reconsidering the issue raised by this appeal, we note that there is no paucity of authority on the subject. Courts in 29 states have held that legislation requiring the wearing of helmets by *136 motorcyclists is constitutional.[1] Several Federal courts have done the same, the United States Supreme Court affirming one such decision in Simon v Sargent, 409 U.S. 1020; 93 S. Ct. 463; 34 L. Ed. 2d 312 (1972). It appears that only one other state court has agreed with our holding in American Motorcycle Association, supra; People v Fries, 42 Ill 2d 446; 250 NE2d 149 (1969).
In the instant case, the decisions of the courts below finding the ordinance in question unconstitutional were based solely upon the authority of American Motorcycle Association. Accordingly, we reexamine that decision to determine its validity.
The decision in American Motorcycle Association, supra, was based primarily upon a finding that the statute requiring motorcyclists to wear crash helmets was not a proper exercise of the police power. We failed to note, however, the proper test of legitimacy of the Legislature's exercise of the police power:
"The primary determination of public need and character of remedy in the exercise of the police power is in the legislature, and its statutes must be sustained unless the remedy is palpably unreasonable and arbitrary so as needlessly to invade property or personal rights as protected by the Constitution. Carolene Products Co v Thomson, supra [276 Mich. 172; 267 N.W. 608 (1936)].
"The presumption of the constitutionality of a statute favors validity and, if the relation between the statute and the public welfare is debatable, the legislative judgment must be accepted. Kelley v Judge of Recorder's Court of Detroit, 239 Mich. 204 [214 N.W. 316 (1927)]." Grocers Dairy Co v Department of Agriculture Director, 377 Mich. 71, 76; 138 NW2d 767, 770 (1966).[2]
*137 In neither American Motorcycle Association, supra, apparently, nor the instant case, was evidence presented by the parties challenging the validity of the legislation to overcome the presumption of validity. Nor is there any showing that the legislation affronted any of the party's constitutionally protected rights. See Shelton v Tucker, 364 U.S. 479; 81 S. Ct. 247; 5 L. Ed. 2d 231 (1960).
We are not persuaded that the "right to be let alone", at least in this case, or the fact that the legislation tends to protect particular individuals from their own folly warrants the conclusion that the measure is not a valid exercise of the police power. Nor can we say that a measure which seeks to protect a large number of individuals does not advance the health, safety or general welfare of the public in general. Cf. Bisenius v Karns, 42 Wis 2d 42; 165 NW2d 377 (1969).
We are convinced that the reasoning of this Court in American Motorcycle Association v Department of State Police, supra, was incorrect and decline to follow it.
The ordinance requiring motorcyclists to wear crash helmets is constitutionally valid. The judgment of the circuit court is reversed. No costs, a public question being involved.
NOTES
[1] See Annot., 32 A.L.R. 3d 1270 (1970).
[2] See also, Cady v Detroit, 289 Mich. 499, 505; 286 N.W. 805, 807 (1939), Roman Catholic Archbishop of Detroit v Village of Orchard Lake, 333 Mich. 389, 392; 53 NW2d 308, 309 (1952).