J.H. GILLIS, J.
By the Private Security Guard Act of 1968,
On October 11, 1968, a public hearing
Plaintiff commenced this action for declaratory judgment on April 28, 1969.
Upon defendants' motions for accelerated judgment of dismissal, the trial judge dismissed plaintiff's complaint. This appeal followed. The principal question presented is the validity of the department's rules.
Availability of Declaratory Relief
This appeal presents a preliminary procedural question — namely, the availability of declaratory relief. The trial judge was of opinion that:
"plaintiffs are legitimately interested in maintaining their business without fear or threat of losing their license,
The Administrative Procedure Act
"This Court has repeatedly held that in cases where an irreparable injury will result from the acts of public officials in attempting to proceed under an invalid law, the jurisdiction of equity may be invoked for the purpose of obtaining injunctive relief and a determination as to the constitutionality of the statute that is involved." Diggs v. State Board of Embalmers, supra, p 514.
It is also well established that "injunction is the appropriate remedy to determine whether rights
In its complaint, plaintiff had alleged that the proposed rules were arbitrary, unreasonable, and in excess of the rule-making powers of defendant department. The trial court thus possessed jurisdiction to enjoin enforcement of the proposed rules, were it satisfied that the rules, as alleged, were arbitrary and unreasonable.
Moreover, plaintiff was entitled to avail itself of the declaratory judgment remedy, notwithstanding plaintiff's conceded failure to exhaust administrative remedies available under the Administrative Procedure Act.
By § 3 of the Administrative Procedure Act,
The Department of State Police had clearly manifested an intention to adopt the proposed rules. Under the circumstances, an attempt on the part of plaintiff to have the rules revoked would have been a vain and useless act.
"`To this rule requiring the plaintiff to exhaust his administrative remedies, there are a number of exceptions, one clear exception is that the law will not require a citizen to undertake a vain and useless act. The law does not require useless expenditures of effort.'" Trojan v. Township of Taylor (1958), 352 Mich. 636, 638, 639.
Defendants also contend that plaintiff should have proceeded under the "contested case" provisions of the Administrative Procedure Act.
"In Updegraff v. Attorney General (1941), 298 Mich. 48, 52 (135 ALR 931), we stated:
"`One test of the right to institute proceedings for declaratory judgment is the necessity of present adjudication as a guide for plaintiff's future conduct in order to preserve his legal rights.'
"Surely persons who are interested in maintaining their homes without fear of criminal prosecution and are thus threatened with the loss of their places of abode are interested in an actual controversy and have a right to bring the suit. We have permitted a declaration of rights under zoning and building regulations, C.K. Eddy & Sons v. Tierney (1936), 276 Mich. 333; Long v. Township of Norton (1950), 327 Mich. 627, and have permitted the validity as well as the construction of a statute to be the subject of a declaratory judgment. See Evans Products Co. v. State Board of Escheats (1943), 307 Mich. 506; 1 Anderson, Declaratory Judgments (2d ed), § 159. No proceedings, as yet, have been begun against any of the plaintiffs but the insecurity and danger or possibly the imminence of such proceedings naturally threaten plaintiffs and make them fearful of losing what have been their homes for years. Under the circumstances, plaintiffs are entitled to avail themselves of the declaratory judgment remedy." (Emphasis supplied.)
Likewise, in the present case, it is clear that an actual controversy, see GCR 1963, 521.1, exists between the parties to this suit. The rules have been published; the department has manifested an intent to enforce its new rules.
Under the circumstances, we conclude that plaintiff properly sought declaratory relief. Only by an action for declaratory judgment could plaintiff obtain "present adjudication as a guide for plaintiff's future conduct in order to preserve [its] legal rights." Updegraff v. Attorney General, supra.
Validity of the Department's Rules
Plaintiff in this case concedes the rule-making authority of the Department of State Police. It is firmly established that the legislature may authorize the adoption by an administrative agency, charged with the administration of a particular enactment, of rules and regulations designed to effectuate the purposes of the enactment. Argo Oil Corporation v. Atwood (1935), 274 Mich. 47; Ranke v. Corporation & Securities Commission (1947), 317 Mich. 304; Roberts Tobacco Company v. Department of Revenue (1948), 322 Mich. 519; Coffman v. State Board of Examiners in Optometry (1951), 331 Mich. 582. Moreover, it is clear that under the Private Security Guard Act of 1968 the legislature contemplated the exercise of rule-making power by the Department of State Police.
Plaintiff contends, however, that in this case the department has abused its rule-making authority. The specific rules are said to be arbitrary, unreasonable, and in excess of the department's rule-making powers. Plaintiff invokes the rule that an administrative agency may not, under the guise of its rule-making power, abridge or enlarge its authority or exceed the powers given to it by statute. See Ranke
Before the trial court, no testimony of witnesses was offered, as the issue presented is essentially legal in character. The decisive question is whether the department has abused its rule-making authority. Our limited function here is to examine the rules and determine whether they bear a proper relationship to the legislative act. Ranke v. Corporation & Securities Commission, supra; Coffman v. State Board of Examiners in Optometry, supra.
"`The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.'" Peaden v. Employment Security Commission (1959), 355 Mich. 613, 629, quoting Mississippi Valley Barge Line Co. v. United States (1934), 292 U.S. 282, 286, 287 (54 S.Ct. 692, 694, 78 L Ed 1260, 2165).
The rules are valid so long as they are not unreasonable; and, if doubt exists as to their invalidity, they must be upheld. Toole v. Michigan State Board of Dentistry (1943), 306 Mich. 527. See also Hiers v. Detroit Superintendent of Schools (1965), 376 Mich. 225, 234, 235.
It is clear that the legislature, by enactment of the Private Security Guard Act of 1968, intended to protect the general public from those private security agencies who would misrepresent themselves as official law enforcement agencies. Various provisions of the act are designed to eliminate the danger of public confusion. It is in light of this purpose that we examine the challenged rules.
Rule 2 prohibits use of the words "police," "Michigan" or the name of a specific city, village or county in any agency name. Rule 6 prohibits solicitation
"No licensee shall use any designation or trade name which has not first been approved by the department, nor shall any licensee use any designation or trade name which implies any association with any municipal, county or state government or the federal government, or agency thereof." (Emphasis supplied.)
We are in accord with the views expressed by the trial judge:
"The language of this section is broad and comprehensive. There is no need for the legislature to be more specific. Obviously a judgment must be made as to which designations imply an association with government departments or agencies. The judgment is clearly to be made by the rule-maker * * *. If the state police cannot prohibit the precise and explicit nomenclature of identification which the government bodies themselves employ as unavailable to private companies, the section has no meaning whatever."
Plaintiff suggests that § 14 of the act
We find no arbitrary abuse of discretion with regard to the limitations upon agency names. Rules 2 and 6 are rationally related to the end sought to be achieved by the act; they are not in excess of the department's rule-making authority.
Rule 3 requires that each licensee file with the Department of State Police complete employee personnel list on a quarterly basis. We see nothing unreasonable in this requirement. Section 17 of the act
Rule 4 concerns employee uniforms and insignia. Minimum requirements for employee uniforms are established. Rule 4 also designates those shoulder patches and emblems which will be approved by the department. Rule 5 requires that the badge or shield worn by private security personnel be square or rectangular in shape.
As authority for the adoption of these rules, the department relies upon § 19 of the act.
"The particular type of uniform and insignia for employees of a licensee or in the case of an individual, must be approved by the department and shall be such that they will not deceive or confuse the public or be identical with that of any law enforcement officer of the federal government, state or any political subdivision thereof in the community
"A badge or shield shall not be worn or carried by any private policeman, special policeman, watchman, or employee or licensee of any patrol service agency or private security guard agency, unless approved by the director of the department of state police." (Emphasis supplied.)
We are of the opinion that Rule 5 is beyond the rule-making authority of the department. By its terms, the rule is an attempt to standardize the shape of employee badges. They must be square or rectangular; no other shape will be approved by the department. Nowhere in the act, however, is it apparent that the legislature intended to confer upon the Department of State Police the broad power to standardize the shape of employee insignia.
Section 19 provides that employee uniform and insignia shall be such that they will not deceive or confuse the public. The act thus provides the standard by which employee attire is to be judged. Cf. Ranke v. Corporation & Securities Commission, supra, p 309. The department, in the exercise of its rule-making authority, may prohibit only those uniforms and insignia which deceive or confuse the public. Any attempt to bar the use of particular insignia, without regard to whether such insignia deceive or confuse the public, is beyond the scope of the department's delegated authority. Rule 5, in our opinion, constitutes an attempt on the part of the department to prohibit use of all shapes other than those required by the rule, without regard to whether such shapes deceive the public. Nothing suggests that a circular badge, for example, would deceive or confuse the public. Any conclusion that
The department does not, however, seek to justify the requirement that all badges be square or rectangular on the ground that those shapes prohibited by Rule 5 deceive or confuse the public. Rather, the department contends that the public will best be protected against deception by the adoption of distinctive insignia which will, in time, serve to identify the wearer as a private security guard. We cannot accept this rationale. Implicit in such a justification is a judgment which, we think, must first be made by the legislature. We reiterate that nothing in the act suggests that the legislature has concluded that only by standardizing employee insignia will public deception be eliminated. Nor has the legislature delegated to the Department of State Police the task of standardizing the attire of private security personnel. We conclude that Rule 5 is invalid. In adopting the rule, the department exceeded the rule-making authority conferred upon it by the private security guard act. Upon remand, the trial court should permanently enjoin enforcement of the rule.
But for the existence of an additional provision in Rule 4, we would likewise hold invalid the department's requirements concerning uniform patches and emblems. By subparagraph 2 of Rule 4, however, the department has indicated only those patches and emblems which will be approved by the department.
"Any deviation from the requirements of paragraph (2) requires approval by the department."
In summary, we have examined the challenged rules and conclude that Rules 2, 3, 4 and 6 are within the department's rule-making authority. Enforcement of such rules will not deprive plaintiff of any personal property rights. Plaintiff's license to engage in private security work is a privilege granted by the state and subject to statutory law and reasonable and proper rules of the Department of State Police. Ranke v. Corporation & Securities Commission, supra; Coffman v. State Board of Examiners in Optometry, supra. Plaintiff is entitled, however, to a judgment declaring Rule 5 invalid. Appropriate injunctive relief should also issue.
Judge LESINSKI concurs with this opinion in all respects except the majority's holding regarding validity of the provisions of Rule 3. He reasons that paragraph 3 of § 17 of the act (see footnote 23, supra), requiring each licensee to maintain adequate and complete personnel information, is not sufficient
Reversed and remanded for proceedings not inconsistent with this opinion. No costs, a public question being involved.
DANHOF, J., concurred. LESINSKI, C.J., concurred to the extent stated above.