People v. Dettenthaler

• Decision Date: 06 December 1898
• Citation: 118 Mich. 595,77 N.W. 450
• Parties: PEOPLE v. DETTENTHALER. GROSVENOR, DAIRY & FOOD COM'R, v. CALKINS, POLICE JUSTICE.
• Court: Michigan Supreme Court

77 N.W. 450

118 Mich. 595

PEOPLE v. DETTENTHALER.

GROSVENOR, DAIRY & FOOD COM'R, v. CALKINS, POLICE JUSTICE.

Supreme Court of Michigan

December 6, 1898

Exceptions from superior court of Grand Rapids; Edwin A. Burlingame Judge.

Certiorari to circuit court, Jackson county; Erastus Peck, Judge.

Frank J. Dettenthaler was convicted of selling oleomargarine contrary to law, and he appeals; and the two cases, raising the same questions, are considered together. Order in certiorari case affirmed, and judgment against Dettenthaler reversed.

Mandamus by the people, on the relation of Elliot O. Grosvenor, dairy and food commissioner, against J. Jay Calkins, police justice of the city of Jackson, to compel respondent to issue a warrant for the arrest of one Harry A. Lincoln, charged with selling oleomargarine contrary to Act No. 76, Laws 1897. The writ was denied, and relator brings the case up on certiorari.

Fred A. Maynard, Atty. Gen., Frank A. Rodgers Pros. Atty., and Benn M. Corwin, Asst. Pros. Atty., for the People.

Rood &amp Hindman and Edwin F. Sweet, for respondent.

John G Hawley, for plaintiff in certiorari.

Rood & Hindman, for defendant in certiorari.

HOOKER J.

These cases involve the validity of Act No. 76, Laws 1897, which is as follows:

"An act to prevent deception in the manufacture and sale of imitation butter.

"Section 1. The people of the state of Michigan enact, that no person, by himself or his agents, or servants, shall render or manufacture, sell, offer for sale, expose for sale, or have in his possession with intent to sell, any article, product or compound made wholly or in part out of any fat, oil or oleaginous substance or compound thereof, not produced from unadulterated milk or cream from the same, which shall be in imitation of yellow butter produced from pure unadulterated milk or cream from the same: provided, that nothing in this act shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form, and in such manner as will advise the consumer of its real character, free from coloration or ingredient that causes it to look like butter.

"Sec. 2. Whoever violates any of the provisions of section one of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than fifty dollars, nor more than five hundred dollars, and the costs of prosecution, or by imprisonment in the county jail, or state house of correction and reformatory at Ionia, for not less than six months nor more than three years, or by both such fine and imprisonment in the discretion of the court, for each and every offense.

"Approved, April 15, 1897." The evidence in the first-entitled cause shows that one of the defendants was convicted of the alleged offense of selling oleomargarine in contravention of this act. In the other, a complaint was made of a similar act to a justice, who refused to issue the warrant; and, on application, the circuit court denied a mandamus to compel it. The cases raise substantially the same questions, and were argued, and will be considered, together.

The validity of the law is questioned. The record shows that this was a senate bill, and passed the senate without the constitutional enacting clause. The records of the house show that the bill was reported by the committee on agriculture and the committee of the whole without amendment, and with the recommendation that it be passed. Under the head of "Third Reading of Bills upon Passage," the record of the house shows that: "Pending the third reading of the bill, Mr. Chamberlain moved that the bill be recommitted to the committee of the whole, which motion did not prevail. The bill having been read a third time, and the question being upon the passage, pending the taking of the vote Mr. Graham demanded the previous question. The question being, 'Shall the main question be now put?' the same was ordered. The bill was then passed, a majority of all the members-elect voting therefor by yeas and nays as follows: Yeas, 56; nays, 19." As this is the only time the bill was before the house, we must find that the bill passed the house without an enacting clause, unless the contrary can be shown by other evidence. Counsel undertook to show that it was amended in this particular, by the records of the senate, and the testimony of the clerk of the house. The evidence is, in brief, that previous to the passage of the bill in the house the clerk noticed the absence of the enacting clause, and brought it to the attention of the house, and said that he would enter one, and accordingly wrote the words in the original bill; i. e. the one which was then before the house. He did not testify that the house took any action upon it, or that any record was made of it. The senate record shows that the bill was subsequently returned to the senate, accompanied by a letter from the clerk of the house, reading as follows:

"House of Representatives. Lansing, April 7, 1897. To the President of the Senate-Sir: I am instructed by the house to return to the senate the following bill: Senate bill No. 6, file No. 24, entitled 'A bill to prevent deception in the manufacture and sale of imitation butter,'-and to inform the senate that the house has amended the same as follows: By inserting in line 1, sec. 1, after the words 'Section 1,' the words 'The people of the state of Michigan enact.' Very respectfully, Lewis M. Miller, Clerk of the House of Representatives.

"In the passage of which, as thus amended, the house has concurred by a majority vote of all members-elect."

It further appears that the senate concurred in such amendment.

We must determine, therefore, whether the house is shown to have amended the bill by inserting an enacting clause, and, if not, whether the law is valid without it. The most that can be claimed is that there is oral testimony that the clerk announced its absence, and stated that he would supply it. Inferentially, perhaps, we may say that there was no objection made; but the evidence is silent as to what if anything, occurred. There is nothing but this inference of silence which imports acquiescence in the amendment. There is nothing to show definite action by the house, which alone had power to amend the bill before it. So that, if the clause is essential to the validity of the act, we need not discuss the propriety of admitting parol evidence to prove an amendment which should be shown by the record, if one was authorized. See Attorney General v. Rice, 64 Mich. 391, 31 N.W. 203; Hart v. McElroy, 72 Mich. 446, 40 N.W. 750; Sackrider v. Supervisors, 79 Mich. 66, 44 N.W. 165. Is the constitutional enacting clause a requisite to a valid law? This must depend upon whether the constitutional provision is to be considered a mandatory provision or directory merely. See Const. art. 4, � 48. Among the authorities cited by the relator in support of his contention is that of Swann v. Buck, 40 Miss. 270. The constitutional provision is similar to ours, and it was held that a substantial compliance was sufficient. In that case the style of the resolution was, "Resolved by the legislature of the state of Mississippi." The court was unable to discover a previous judicial decision of the question, but quoted Mr. Cushing to the effect that the prescribed "form must be strictly pursued, and that no equivalent language will be sufficient," and, while declining to accept his rule, said: "It is necessary that every law should show on its face the authority by which it is adopted and promulgated, and that it should clearly appear that it is intended by the legislative power that enacts it that it should take effect as a law. These conditions being fulfilled, all that is absolutely necessary is expressed. The word 'resolved' was as potent to declare the legislative will as the word 'enacted."' The case of McPherson v. Leonard, 29 Md. 377, holds that the provision of the constitution of Maryland was directory, and that the omission of the words "by the general assembly of...