Department of Public Health v. Tompkins 34 Mich. App. 114

Original Opinion

Per Curiam.

At trial level defendants were permanently enjoined from operating an agricultural labor camp without a license as required by the agricultural labor camps act1 or permitting persons to use facilities on their premises which had been found to be unfit for human habitation.

*116Plaintiff, who is given responsibility for enforcement of the agricultural labor camps act2, had received a letter from defendants early in 1970 wherein defendants stated they would not operate an agricultural labor camp in 1970. Three months later plaintiff’s field representative went to defendants’ cherry orchard and allegedly discovered that defendants were, in fact, operating an agricultural labor camp without a license.

The trial court’s findings of fact agree with the plaintiff’s allegations:

“1. That the defendants, O. M. Tompkins and Bess Tompkins, are operating a cherry orchard located at 17107 Center Road, Peninsula Township, Grand Traverse County, Michigan and are providing living facilities on said premises for more than twenty (20) agricultural workers and their families, who are being paid by said defendants for harvesting cherries at said orchard, and who are not residents of Grand Traverse County.

“2. That said living facilities on said defendants-appellants aforesaid premises are unfit for human habitation and use, posing a threat to the health and welfare of the agricultural workers and their families residing in and using said facilities, and jeopardizing the public health.

“3. That said facilities and premises are subject to the provisions of Act 289, PA 1965, as amended and the rules and regulations promulgated thereunder, that said premises are not licensed under the provisions of said law, rules, and regulations, and no application for a license was made pursuant to said law, rules, and regulations because defendant-appellant O. M. Tompkins testified the defendants-appellants know an application would be denied, and the said premises and living facilities in their present *117condition do not meet the requirements of said law, rules, and regulations.

“4. That irreparable injury will result if this judgment does not issue, and as defendant O. M. Tompkins testified, the defendants-appellants will suffer no damage by the issuance of this judgment.”

On appeal defendants claim that the evidence before the trial judge was not sufficient to support the injunction and therefore should be set aside by this Court. We review the testimony mindful of the rule that we cannot substitute our opinion for that of the trial judge unless his findings are clearly erroneous. GCR 1963, 517.1. See, also, Potter v. Speer (1969), 16 Mich App 329.

The agricultural labor camps act requires an operator of an “agricultural labor camp” to obtain a license from the state health commissioner before operating such a camp.3 Defendants argue that they do not need an operator’s license since they do not operate an agricultural labor camp.4 *“Agricultural labor camp” is defined in the act as:

“A tract of land and all tents, vehicles, buildings or other structures pertaining thereto, and part of which is established, occupied or used as living quarters for 5 or more migratory workers engaged in agricultural activities, including related food processing.”5

It is the opinion of this Court that there was sufficient evidence to support the trial court’s finding that defendants were operating an agricultural labor camp without a license. More than five out-of-county workers were employed by defendants and *118were housed on defendants’ farm. Mr. Tompkins admitted that he had more than five workers and that he had not applied for a license to operate an agricultural labor camp.6

Defendants’ attack on the act’s constitutionality will not he considered since they did not present this issue in the trial court proceedings.7

Affirmed. Costs to plaintiff.

On Rehearing

R. B. Burns, P. J.

Defendants filed a motion for rehearing1 2which was granted. The sole issue is:

“Does the agricultural labor camps act8 violate defendants’ state and/or federal constitutional rights of due process and equal protection?

Relying on the equal protection clause of the state3 and Federal constitutions4 defendants argue that the labor camps act subjects “non-agricultural” migratory workers to arbitrary and unreasonable discrimination.5 Defendants also contend that the act, since it does not apply unless “5 or more migratory workers [are] engaged in agricultural ac*119tivities”, discriminates against smaller numbers of “agricultural” migratory workers.

Defendants, who seek to avoid complying with the act as “operators” of an agricultural labor camp,6 do not argue that they are the subject of any discrimination. In effect defendants are urging this Court to strike down the labor camps act on the ground that it discriminates against people who are not involved in this suit. Such a decision would be premature and unnecessary. One cannot attack a statute on the ground that its application denies constitutional protection to others.7

Defendants’ due process argument is based on their contention that the meaning of “migratory worker” is so vague and indefinite that they, as farm owners, must act at their peril.8

The act provides that one must obtain a license to operate an agricultural labor camp. “Agricultural labor camp” is defined in the act (MCLA § 286-.621 [a] [Stat Ann 1968 Rev § 17.424(1)(a)]) as:

“A tract of land and all tents, vehicles, buildings or other structures pertaining thereto, and part of which is established, occupied or used as living quarters for 5 or more migratory workers engaged in agricultural activities, including related food processing.” (Emphasis supplied.)

Defendants argue that since the act does not define the term “migratory workers”, they are unable *120to determine whether or not the people who harvest their cherries are migratory workers. We cannot agree with defendants’ assertion that the term “migratory worker” is “so vague, that men of common intelligence must necessarily guess at its meaning and differ as to its application”.9 Men of commonsense intelligence know that migratory workers are those workers who move in response to the demand for seasonal labor.10 The meaning of the term “migratory worker” is reasonably certain and therefore does not constitute a denial of due process.

Affirmed.

All concurred.