People v. De La Mater

• Decision Date: 30 March 1921
• Docket Number: No. 109,Oct. Term.,109
• Parties: PEOPLE v. DE LA MATER.
• Court: Michigan Supreme Court

213 Mich. 167

182 N.W. 57

PEOPLE

v.DE LA MATER.

No. 109, Oct. Term.

Supreme Court of Michigan.

March 30, 1921.

Error to Superior Court of Grand Rapids; Major L. Dunham, Judge.

Criminal prosecution by the People against Edgar D. De La Mater. The information and proceedings were quashed, and the prosecutor brings error. Affirmed.

Argued before STEERE, C. J., and MOORE, FELLOWS, STONE, CLARK, BIRD, and SHARPE, JJ. Alex J. Groesbeck, Atty. Gen., James A. Greene, Asst. Atty. Gen., and Cornelius J. Hoffius, Pros. Atty., of Grand Rapids (Fred P. Geib, of Grand Rapids, of counsel), for the People.

Rodgers & Rodgers, of Grand Rapids, for appellee.

BIRD, J.

Defendant, a resident of Grand Rapids, was apprehended on a warrant for the violation of the liquor law. He was held for trial in the superior court by the police court. Upon motion the information and proceedings were quashed by the superior court, and the case is here for review on writ of error at the instance of the prosecutor, under the provisions of Act 159 of the Laws of 1917.

It appears that defendant is, and has been for several years, engaged in operating a drug store in the city of Grand Rapids, and as such druggist had a permit to sell intoxicating liquors up to May 1, 1919. After that date the food and drug department refused to renew his permit, which left him with a stock of liquors on hand. While negotiating for a renewal of his permit, and on December 30, 1919, George M. Bradley, one of the inspectors of the food and drug department, made an affidavit for a search warrant to search defendant's premises, and it was issued by the police court. Upon a search of defendant's place of business and storage house a quantity of various kinds of intoxicating liquors was found and seized. About three weeks thereafter defendant was arrested and taken before the police court. An examination was had, and defendant was held for trial. Subsequently an information was filed in the superior court following the charge in the complaint and warrant, charging him with running a drug store where liquors were stored and sold without having a permit to do so, and also with having intoxicating liquors in his possession contrary to the provisions of Act 338 of the Laws of 1917, as amended (Pub. Acts 1919, No. 53). Defendant moved the court for an order quashing the information and for his discharge, assigning several reasons therefor. The trial court granted the motion; it being the opinion of the court that section 25 of said act was in conflict with both the federal and state Constitutions. It was also the opinion of the court that no probable cause was shown for the issuance of the search warrant. Accordingly an order was granted quashing the information, suppressing all evidence obtained by virtue of the search warrant, and discharging the defendant from custody, with the further order that the liquors so seized be returned to him.

The assignments of error raise several questions, two of which demand our attention:

(1) Was the superior court in error in holding that section 25 was in conflict with section 10, art. 2, of our Constitution?

(2) Was there sufficient legal evidence, aside from that procured by the search warrant, to hold defendant for trial?

The section of the statute which is questioned provides that:

‘Sec. 25. If any person makes a sworn complaint or affidavit before any magistrate authorized to issue warrants in criminal cases, that he has reason to believe and does believe that any intoxicating liquors are being manufactured, possessed, sold, furnished, or given away, or kept for the purpose of being sold, furnished, given away or possessed, contrary to law, or that any such liquors are stored, temporarily or otherwise, in any depot, freight house, express office, or in any other building or place with the apparent intention of being delivered for the purpose of being sold, furnished or given away contrary to the provisions of this act, such magistrate shall immediately issue his warrant to any officer whom the complainant may designate, having power to serve criminal process, commanding him to search the premises described and designated in such complaint and warrant, and if such liquors are there found, to seize the same together with the vessels in which they are contained, and all the implements and furniture used and kept for such illegal manufacturing, importing, selling, furnishing, giving away, possessing, or storing of such liquors, and then safely keep and make immediate return on said warrant.’

The constitutional provision with which the statute is said to be in conflict is as follows:

‘The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.’ Section 10, art. 2.

The argument is made that this provision of the Constitution forbids the issuance of a search warrant except upon probable cause, supported by oath or affirmation, and that the question of probable cause is one to be determined by the magistrate who is requested to issue the warrant. It is insisted that section 25 takes away this right from the magistrate and transfers it to the complainant.

The language employed in section 25 is persuasive that it was intended by the Legislature that when an affidavit or complaint complying with the terms of the statute was presented to a magistrate he would be in duty bound to issue his warrant. There appears to be no room for an exercise of his judgment as to whether probable cause exists. The statute does not say that he may issue his warrant, but the wording is he ‘ shall immediately issue his warrant.’ The use of the adverb ‘immediately’ contributes much to the conclusion that the duty of the magistrate was intended to be mandatory. Taking the language in its plain ordinary meaning, together with the rule that, when the word ‘shall’ is used in a command to a public official, it excludes the idea of discretion (In re O'Rourke, 9 Misc. Rep. 564,30 N. Y. Supp. 375), we think the command to issue the writ is mandatory, and that the magistrate is without authority to determine the question of probable cause. It is quite evident that, if a showing were made to this court that a sworn application complying with the statute had been made and tendered to a justice of the peace, who refused to issue the warrant, we would compel him to do so by writ of mandamus, if no constitutional question were raised. If this be the proper construction, is the section in collision with the constitutional provision heretofore quoted?

The statutory provision which has existed in this state for many years authorizing the issuance of search warrants is as follows:

‘When complaint shall be made on oath to any magistrate authorized to issue warrants in criminal cases, that personal property has been stolen or embezzled, or obtained by false tokens of pretenses, and that the complainant believes that it is concealed in any particular house or place, such magistrate, if he be satisfied that there is reasonable cause for such belief, shall issue a warrant to search for such property.’

Tiffany's Criminal Law, in commenting on the issuance of search warrants, has the following to say:

‘The facts and circumstances which induce the complainant's belief must be set forth, and those facts and circumstances must be sufficient to make it appear that there is probable cause for such belief and for making the search.

‘And the magistrate must be...