People v. Eberle

• Decision Date: 08 December 1911
• Citation: 133 N.W. 519,167 Mich. 477
• Parties: PEOPLE v. EBERLE et al.
• Court: Michigan Supreme Court

167 Mich. 477

133 N.W. 519

PEOPLE

v.EBERLE et al.

Supreme Court of Michigan.

Dec. 8, 1911.

Exceptions from Circuit Court, Jackson County; James A. Parkinson, Judge.

Carl Eberle and another were convicted of violating the local option law, and they bring exceptions. Overruled.

Argued before MOORE, McALVAY, BROOKE, BLAIR, and STONE, JJ. Albert O. Reece, Pros. Atty., and Frank L. Blackman, Asst. Pros. Atty., for the People.

Richard Price, for defendants.

McALVAY, J.

Respondents were convicted under the local option law, adopted and in force in Jackson county, upon a charge that they ‘did manufacture brewed, malt, and intoxicating liquors, to wit, beer,’ contrary to the provisions of said law. The case is before this court upon exceptions before sentence.

The facts are not in dispute. No question is raised but that the local option law, prohibiting, among other things, the manufacture of brewed, malt, and intoxicating liquors, was at the time charged in force in said county. It is admitted that respondents did manufacture the beer in question.

The defense is founded upon the propositions: (1) That the law on account of certain of its provisions, is unconstitutional; (2) that such manufacture was not unlawful, because done for the sole purpose of preserving a large quantity of beer, to wit, 1,700 barrels, which they had lawfully manufactured, and had on hand at the time such law went into effect.

In order to understand the second contention properly, some of the undisputed facts must be stated. Defendants were stockholders and officers of the Eberle Brewing Company, a Michigan corporation, which owned a brewing plant at Jackson, and had been for several years engaged in the manufacture of lager beer. When the local law went into effect in Jackson county, on May 1, 1909, the company had on hand about 1,700 barrels of beer, which they had been unable to sell. It appears that this beer would have become worthless and unmarketable, if a new brew were not made and introduced into it ocasionally, to keep it alive. The new beer was made and used only for this purpose. It was not then old enough to be in a fit condition to drink. The company, after the 1st of May, 1909, was manufacturing a temperance, nonalcoholic beer, for which some new machinery had been purchased, to be used in connection with the same vats and machinery theretofore used in the manufacture of lager beer. On September 1, 1909, there was a large quantity of this old beer on hand in the basement and storerooms of the brewery. The sheriff and his deputies on that date found six vats full of what was supposed to be beer in the process of fermentation. Two of these vats were filled with new lager beer, and three were filled with temperance beer. Samples of all kinds were taken for analysis. The temperance beer was found to contain no alcohol. The new and the old lager beer contained the percentage of alcohol usually found in lager beer.

Defendants requested the court to charge, in accordance with the contention above stated, that from the proof in the case it appeared that no beer had been manufactured after May 1, 1909, by defendants, except to preserve and protect their property, and was used only for that purpose, and defendants were within their rights, and not guilty; and, if such request was not given, then to charge that if the jury so found the facts to be then the defendants would not be guilty as charged, and a verdict of not guilty should be returned. These requests were refused, and the court charged that under the law then in force the manufacture of beer, ‘no matter for what purpose it is manufactured, or what the reason is,’ was strictly prohibited, and if the jury found, beyond a reasonable doubt, that beer had been manufactured as charged then respondents should be found guilty; otherwise they should be acquitted. Errors are assigned upon such rulings.

The constitutionality of the law is attacked upon several grounds: (a) That it is in conflict with paragraph 3, § 8, art. 1, of the Constitution of the United States, relative to the regulation of commerce. (b) That it is repugnant to section 2, art. 4, of said Constitution, relative to the privileges of citizens of different states. (c) That it violates the fourteenth amendment of the same, and also section 32, art. 6, of the Constitution of this state. (d) That it violates the Constitution of the United States and of this state, relative to unreasonable searches and seizures and the issuance of search warrants.

The question of the constitutionality of the original act, being Act 207, P. A. of 1889, of which the law in question is amendatory, has been considered by this court, and the law held to be a valid and constitutional exercise of the legislative power. Friesner v. Charlotte, 91 Mich. 504, 52 N. W. 18;Feek v. Township Board, 82 Mich. 393, 47 N. W. 37,10 L. R. A. 69. Similar statutes have been held to be constitutional in other states. 23 Cyc. 78, and cases cited in note 59 et seq.

It is not contended that this law was not duly and regularly adopted according to its requirements, nor that the Legislature might not enact a constitutional local option law. Claims of unconstitutionality are based upon the provisions of certain sections of this law, the objectionable portions of which, as set forth and relied upon in respondent's brief, are as follows:

Section 1 of said act provides: ‘It shall be unlawful for any person, directly or indirectly, himself or by his clerk, agent or employee, to manufacture, sell, keep for sale, give away or furnish any vinous, malt, brewed, fermented, spirituous or intoxicating liquors, or any mixed liquor or beverages, any part of which is intoxicating, or keep a saloon or any other place where any such liquors are manufactured, sold, stored for sale, given away or furnished in any county of this state on and after the first day of May next following after the adoption by the board of supervisors of such county of a resolution prohibiting the same, as provided by section thirteen of act number two hundred seven of the public acts of eighteen hundred eighty-nine as amended, so long as said resolution remains unrepealed: Provided, however, that the provisions of this section shall not apply to druggists, or registered pharmacists, selling any such liquors under and in compliance with the restrictions and requirements imposed upon them by the general laws of this state and sections twenty-five and twenty-six of this act as amended.’

Section 2 of the act provides, in substance, for the suspension of the general laws of the state, regulating the business of manufacturing and selling liquor, etc., in the territory and municipalities within the limits of any county where local option is adopted. ‘Provided, however, that all sales of liquors by druggists or registered pharmacists in such counties shall be under the restrictions and requirements imposed upon them by the general laws of this state and this act, as amended.’

Sections 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, and 14 contain provisions for ascertaining the will of the people and declaring the result of the election in counties where local option is adopted.

Section 15 is as follows: ‘Sec. 15. The prohibitory provisions of this act shall take effect and have full force within such county of this state on and after the first day of May, immediately following the adoption by the board of supervisors of such county of the resolution ordering such prohibition and upon publication of the notice of the adoption of such resolution: Provided, however, that nothing in this act shall be so construed as to prohibit the sale of wine for sacramental purposes, nor shall anything herein contained prohibit druggists or registered pharmacists from selling or furnishing pure alcohol for medicinal, art, scientific and mechanical purposes, nor prohibit the sale of wine or cider from home grown fruit in quantities of not less than five gallons, nor shall the provisions of this act be construed to prohibit the sale at wholesale of wine or cider manufactured in said county to parties who reside outside of said county.’

Section 25 and 26 provide that druggists ‘shall be permitted to sell such vinous, malt, brewed, fermented, spirituous and intoxicating liquors for medicinal purposes, but only on the written prescription of a regular practicing physician,’ and also provides that such druggists ‘shall be permitted to sell pure alcohol or any vinous, fermented or spirituous liquors for art, chemical, scientific or mechanical purposes, but only on the written application of the purchaser, stating the purpose for which such liquors are purchased, which application shall be subscribed and sworn to by the person making such purchase.’

The general laws of the state referred to above, being Act 313 of the Public Acts of 1887, provide in section 3 that the provisions of the act shall not apply to druggists who sell liquors for chemical, scientific, medicinal, mechanical or sacramental purposes only, and in strict compliance with the law, and the contains certain provisions in regard to sales to minors, etc., and the giving of a bond.

From respondents' argument and conclusions, drawn from a consideration of this statute, we may state briefly their claims against its constitutionality, as follows: (1) That it deprives citizens of property without due process of law; (2) that it discriminates against citizens and products of other states, and is an interference with interstate commerce; (3) that it discriminates against and abridges the privileges and immunities of the citizens of this state, denying them the equal protection of the laws, and the privileges and immunities of the citizens of the other states.

[1] It is well settled that the state, in the exercise of the police power, may regulate or prohibit the manufacture and sale of spirituous and intoxicating liquors within its territory. People v. Hawley, 3 Mich. 330;...