Beacon Club v. Buder

• Decision Date: 06 March 1952
• Docket Number: No. 31,31
• Citation: 332 Mich. 412,52 N.W.2d 165
• Parties: BEACON CLUB et al. v. BUDER et al. *
• Court: Michigan Supreme Court

Page 165

52 N.W.2d 165

332 Mich. 412

BEACON CLUB et al. v. BUDER et al. ^*

No. 31.

Supreme Court of Michigan.

March 6, 1952.

James B. Stanley, Kalamazoo, for plaintiffs-appellants.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gan., Lansing, Daniel J. O'Hara, Franklin J. Rauner, Asst. Attys. Gen., John Pikkaart, Pros. Atty. for Kalamazoo County, Kalamazoo, for appellees.

Before the Entire Bench.

CARR, Justice.

The question at issue in this case is the constitutionality of § 26c of the Michigan liquor control act ¹, which section was added by P.A.1949, No. 295, Stat.Ann.1949 Cum.Supp. § 18.997(3). As first introduced, the legislative measure (House Bill 405) provided for the amendment of certain designated sections, none of which requires discussion in the present controversy. When the bill reached the Senate it was amended by adding the section indicated, which reads as follows: 'No person shall maintain, operate, lease or otherwise furnish to other persons any premises or place which is not licensed under this act, wherein such other persons may engage in the drinking of alcoholic beverages, for a fee or for any other consideration, including the sale of food, mixers, ice or other fluids used with alcoholic drinks or the storage of alcoholic liquors: Provided, That the provisions of this section shall not apply to any hotel nor to any licensee under the provisions of this act: Provided further, That the provisions of this section shall not be construed to repeal or amend the provisions of section 26b of this act.'

The title of the bill was changed to include reference to the added section, the House of Representatives concurred in the action, and the bill was ordered enrolled for presentation to the Governor for his approval or disapproval. Due to an oversight the title was not correctly printed, reference to the added section being omitted. Within the time limited by article 5, § 36, of the State Constitution, the Governor returned the measure to the House of Representatives with a message indicating that he had not signed it because of doubts as to the constitutionality of the added section. Thereupon the clerk of the House examined the legislative records and discovered the error that had been made in the printing of the enrolled act. As a result the measure was printed in accordance with the legislative action and was returned to the Governor, who signed it and transmitted it to the Secretary of State. Such final action was presumably taken on the assumption that the submission of an incorrect copy of the measure passed by the Legislature was a mere nullity.

The purpose of section 26c is not questioned. It is directed at the operations of so-called 'bottle clubs', and, while not a direct inhibition on the consumption of alcoholic liquor, is designed to restrict the furnishing of premises for hire whereon such beverages are stored or consumed. In accordance with such purpose, the sale of food and of fluids designed to be used with alcoholic drinks on such premises was included in the inhibition.

The corporate plaintiffs are duly organized under the laws of this State and have offices in Kalamazoo county. It is conceded that they maintain, operate, and furnish rooms wherein their members may engage in drinking alcoholic beverages. The individual plaintiffs named own the lands upon which the clubs operate, and are also members and officers thereof. None of the plaintiffs is licensed under the Michigan liquor control act. Operations are conducted in the manner expressly forbidden by section 26c above quoted. The defendant Buder is the sheriff of Kalamazoo county and as such is charged with enforcing the valid provisions of the liquor control act. The defendant Commission is an agency of the State, invested, under the statute and the Constitution, article 16, § 11, as amended at the general November election in 1932, with 'control of the alcoholic beverage traffic'.

Claiming that their rights will be substantially infringed by the enforcement of the section of the statute in question, plaintiffs instituted suit in equity in the circuit court to restrain defendants from taking action against them, asserting as the basis for the suit the invalidity of said section. Defendants filed their respective answers to the bill of complaint, denying the various claims advanced by plaintiffs in support of their alleged right to relief, and the case was submitted to the trial court on an agreed statement of facts. The result was the entry of a decree denying the relief sought and dismissing the bill of complaint. Plaintiffs have appealed.

On behalf of appellants it is argued that the action of the Governor in returning to the House of Representatives, with veto message attached, the first draft of the enrolled act as submitted to him was final, and that the approval of the corrected enrolled act violated article 5, § 36, of the State Constitution. It is insisted, in effect, that the omission of the reference in the title to the added section was a mere clerical error. Attention is directed to decisions involving mistakes of such character, of which Board of Control of Michigan State Prison v. Auditor General, 149 Mich. 386, 112 N.W. 1017, is typical. There the mistake in the enrolled act, as signed by the speaker of the House, the president of the Senate, and the Governor, consisted in the omission of the word 'thousand' from the body of the act, which was an appropriation measure. However, the provisions of the enrolled act as printed and signed were such as to leave no doubt as to the intention of the Legislature, nor was the validity of any provision affected. In commenting on the situation, it was said: 'It is a clerical error, which corrects itself and leaves nothing doubtful. Such clerical errors will not be permitted to defeat the plain intent of the Legislature.'

The situation in the case at bar is not analogous. The inclusion of the reference to the added section in the title of the measure here involved was essential to its validity. Its omission in the original draft of the enrolled act was more than a mere clerical error. We think it may be assumed that the Legislature considered the section in question as a material part of the bill. As a result of the error in printing, the enrolled act submitted to the Governor differed materially in substance from the draft of the measure as passed by the Legislature. On discovering the mistake that had been made the clerk of the House of Representatives acted properly in causing to be printed and submitted a corrected enrolled act. In doing so he merely performed the duty resting on him by virtue of his official position. As a result the measure was submitted to the Governor in proper form, and was duly approved. The prior attempted submission was under the circumstances a mere nullity. The action of the Legislature may not be invalidated on the basis of an error that was subsequently, and properly, corrected.

Appellants further contend that section 26c violates certain provisions of the State and Federal Constitutions and should, in consequence, be decreed invalid. Reliance is placed on article 5, § 21, of the State Constitution, which contains the following provision: 'No law shall embrace more than 1 object, which shall be expressed in its title.'

The title of the Michigan liquor control act, above cited, is as follows: 'An Act to create a liquor control commission for the control of the alcoholic beverage traffic within the state of Michigan, and to prescribe its powers, duties and limitations, to provide for the control of the alcoholic liquor traffic within the state of Michigan and the establishment of state liquor stores; to provide for the incorporation of farmer cooperative wineries and the granting of certain rights and privileges thereto; to provide for the licensing and taxation thereof, and the disposition of the moneys received under this act; to provide for the enforcement and to prescribe penalties for violations of this act; to provide for the confiscation and disposition of property seized under the provisions of this act; to provide a referendum in certain cases; and to repeal certain acts and parts of acts, general, local and special, and certain ordinances and parts of ordinances.'

The act was adopted in accordance with the State Constitution, article 16, § 11, as amended at the general election in 1932, which reads as follows: 'The legislature may by law establish a liquor control commission, who, subject to statutory limitations, shall exercise complete control of the alcoholic beverage traffic within this state, including the retail sales thereof; and the legislature may also provide for an excise tax on such sales: Providing, however, that neither the legislature nor such commission may authorize the manufacture or sale of alcoholic beverages in any county in which the electors thereof, by a majority vote, shall prohibit the same.'

The statute was obviously designed to put into practical effect the will of the people of the State as expressed in the amendment to the Constitution. The title is sufficiently broad to permit the accomplishment of that purpose. Whatever might have been incorporated into the original act under such title may be added thereto by way of amendment. Surtman v. Secretary of State, 309 Mich. 270, 15 N.W.2d 471. Appellants' argument rests on the theory that section 26c is prohibitory in character, that the title indicates that the object of the measure is to provide for the regulation and control of the liquor traffic, that prohibition is not included in the terms used, and that the inclusion of said section in the liquor control act is in effect an attempt to declare two objects to be attained thereby.

Attention is directed to People v. Gadway, 61 Mich. 285, 28 N.W. 101, which involved an attempt of the Legislature to amend an act providing in its title for the regulation of the sale of...