People v. Budzan

• Decision Date: 10 December 1940
• Docket Number: No. 98.,98.
• Citation: 295 N.W. 259,295 Mich. 547
• Parties: PEOPLE v. BUDZAN.
• Court: Michigan Supreme Court

295 Mich. 547

295 N.W. 259

PEOPLE

v.BUDZAN.

No. 98.

Supreme Court of Michigan.

Dec. 10, 1940.

Joe Budzan was charged by information with offering and keeping for sale, giving away, and furnishing alcoholic liquor to divers persons without having a license or special permit from the State Liquor Control Commission, and from an order quashing the information and discharging defendant, the People appeal.

Affirmed.

NORTH and BOYLES, JJ., dissenting.

Appeal from Circuit Court, Ottawa County; Fred T. Miles, judge.

Argued before the Entire Bench.

Thomas Read, Atty. Gen., and Elbern Parsons, Pros. Atty., of Holland, for plaintiff and appellant.

Travis, Merrick & Johnson, of Grand Rapids, for respondent and appellee.

WIEST, Justice.

This is an appeal by the people from an order quashing an information and discharging defendant.

Defendant was secretary of an association of workers for insurance purposes, styled the International Workers' Order. It does not appear whether the association was incorporated or unincorporated. In 1939 the association desired to hold a picnic for its members, and defendant made an effort to obtain a license permitting the sale of beer at the picnic but a license was refused. Without a license the association purchased beer and dispensed the same at the picnic only to members exhibiting their membership cards and without charge. The sheriff appeared and dispensation of the beer was at once discontinued. Defendant was arrested on a complaint charging that, under the mentioned circumstances, he ‘did then and there, offer, and keep for sale, give away and furnish, unto divers and sundry persons, certain alcoholic liquor, to-wit: beer, without then and there having a license or special permit from the Liquor Control Commission of the State of Michigan, as required by the Statute in such case made and provided.’

An examining magistrate bound defendant over to the circuit court where an information following the charge in the complaint was filed. Upon motion of defendant the court quashed the information on the ground there was no evidence showing a violation of law by defendant. The court held: ‘Under these circumstances, the organization had a legal right to purchase this beer at the Brewery in Grand Rapids; they had a legal right to transport it to a convenient place, and they had a legal right to drink their own beer.’

The statute which defendant is charged with violating is § 32, Act No. 8, Pub. Acts, Extra Session 1933, as amended by Act No. 281, Pub. Acts 1937 (Stat.Ann. § 18.1003), and provides: ‘No person, directly or indirectly, himself or by his clerk, agent or employe shall manufacture, manufacture for sale, sell, offer or keep for sale, barter, furnish, or import, import for sale, transport for hire, or transport, or possess any wine, spirits, alcohol and/or alcoholic liquor unless such person shall have fully complied with the provisions of this act.’

The statute defines ‘person’ to mean any person, firm, partnership, association or corporation, and ‘sale’ to include exchange, barter or traffic, furnishing or giving away alcoholic liquor.

Counsel for defendant contends there is no evidence that defendant did violate the statute, or that he bought or gave away the beer.

The pivotal question is well stated in the brief for defendant: ‘Does the Liquor Control Act (Act No. 8, Public Acts of 1933, Stat.Ann., Sec. 18.971 et seq.), require an unincorporated * * * association, whose members desire to hold a picnic, to obtain a license before the members may drink beer purchased with funds from the treasury of the association?’

The record being silent as to whether the International Workers' Order is a corporation or an unincorporated association, we must consider it as unincorporated. The distinction is of moment in this instance.

The term ‘person’ employed in the statute embraces natural or artificial persons and, therefore, includes corporations. An unincorporated association is not a ‘person’ unless expressly declared such by statute. If the International Worker's Order had been shown to be a corporation then title to the beer would have vested in the corporation and any dispensing of it would require a license. In an unincorporated association, however, title to purchases vests in the members and, consequently, if the members in the instance at bar drank only what belonged to them this did not constitute a sale or gift to them by any one.

People v. Soule, 74 Mich. 250, 41 N.W. 908, 910,2 L.R.A. 494, involved an incorporated club and it was rightly held that: ‘The liquors purchased and kept by this club were, before they were dealt out to the members, the property of the corporation. When the liquor was passed by the agent of the corporation, the respondent in this case, over to the individual member, it became his property, and was a sale to him, as he paid for it when it was delivered to him. He could then do with it as he pleased,-drink it himself [or] give it to a friend to drink.’

In State ex rel. Edward T. Young v. Minnesota Club, 106 Minn. 515, 119 N.W. 494, 498, 20 L.R.A.,N.S., 1101, the court reviewed the authorities on the subject and stated: ‘Whatever may be the proper application of the statute to voluntary associations where property is held in common, the English rule has no application where the organization is a legally constituted corporation.’

Considering the Internation Workers' Order as an unincorporated association, we are constrained to hold there was no violation by defendant of the statute in the instance at bar, and the order of the circuit judge, quashing the information, is affirmed.

BUSHNELL, C. J., and SHARPE, CHANDLER, McALLISTER, and BUTZEL, JJ., concurred with WIEST, J.

NORTH, Justice (dissenting).

Complaint was made against defendant, Joe Budzan, that at a certain time and place in Ottawa County he ‘did then and there sell * * *, give away and furnish, unto divers and sundry persons, certain alcoholic liquor, to-wit: beer, without then and there having a license or special permit from the Liquor Control Commission of the State of Michigan, as required by the Statute in such case made and provided.’ Upon examination before the magistrate defendant made a motion to have the complaint dismissed and the warrant quashed. This motion was denied by the magistrate and defendant bound over for trial in the circuit court. After the return of the magistrate defendant made a motion in the circuit court to dismiss on the ground that under the testimony taken before the magistrate there was not probable cause to believe that defendant had violated any of the provisions of the statutes under which he was prosecuted (Stat.Ann. 18.971, 18.972, 18.988, and 18.1003, as amended). The circuit judge heard and granted defendant's motion. The People, first having obtained leave, appealed. The determinative questions is whether the testimony taken before the magistrate justifies his conclusion that the offense charged in the complaint and warrant had been committed and there was probable cause to believe defendant was guilty. Comp.Laws 1929, § 17205; Stat.Ann. 28.931.

From the testimony taken the following facts appear: Defendant is the secretary of an organization of workers, organized for insurance purposes under the name of International Workers' Order, and commonly referred to as the I.W.O. In contemplation of a gathering of the members of this organization, it purchased a quantity of beer at a brewery in Grand Rapids and paid for it from its treasury. The beer was conveyed to the Little White City Pavilion in Tallmadge township, which is a park or place of amusement; and with defendant's full knowledge and apparently under his supervision the beer was gratuitously served to members of the organization. It is not claimed by defendant that either he or his organization had any permit or license from the Michigan Liquor Control Commission to sell or furnish alcoholic beverage at the time and place in question. The sheriff appeared at the gathering while the beer was being dispensed and after he talked with defendant, Budzan told his associates that dispensing the beer ‘had to be stopped. He stopped it right then and there. He was the one that did that.’ The sheriff further testified: ‘The arrangement they had there where they were giving away this beer was, it was just like a bar where you could draw it right out behind the bar. He (Budzan) told me they were giving away beer there. * * * I didn't see Mr. Budzan give any. I didn't see any money pass hands. To my knowledge I don't know that these people were bartering for the beer, buying it from them.’

Defendant's motion to dismiss was granted, in effect, upon the ground that under the facts, i. e. assuming beer was furnished as above noted, defendant had not committed any offense against the laws of the State of Michigan. In the opinion filed the circuit judge said: ‘Under the circumstances, the organization had a legal right to purchase this beer at the Brewery in Grand Rapids; they had a legal right to transport it to be convenient place, and they had a legal right to drink their own beer, being responsible only for violation of some other law incident to such drinking. * * * He (defendant) is charged with selling etc., beer, in violation of law. There is no evidence that he did so violate the law.’

It is the claim of the prosecution that this holding was erroneous; that instead defendant was properly held for trial in the circuit court under a showing that he, as an officer of the International Workers' Order, was unlawfully furnishing an alcoholic beverage to the members of that association, in that he, although not licensed, provided them gratuitously with beer purchased with money out of the association treasury. The Constitution provides: ‘The legislat...