People v. Schoenberg

• Citation: 161 Mich. 88,125 N.W. 779
• Parties: PEOPLE v. SCHOENBERG.
• Decision Date: 01 April 1910
• Court: Supreme Court of Michigan

161 Mich. 88

125 N.W. 779

PEOPLE

v.SCHOENBERG.

Supreme Court of Michigan.

April 1, 1910.

Error to Circuit Court, Muskegon County; Clarence W. Sessions, Judge.

Charles Schoenberg was convicted of keeping his saloon open on Sunday, and he brings error. Affirmed.

On August 23, 1909, an information was filed against respondent wherein he was charged with keeping his saloon open on Sunday. Being arraigned on that day, he pleaded guilty, but after a private consultation with the court was permitted to withdraw that plea, and standing mute, the court directed a plea of ‘not guilty’ to be entered. On September 20, 1909, respondent was permitted to again plead guilty, and such plea was accepted and ordered entered by the court. On October 20, 1909, respondent was sentenced to 30 days in jail and to pay a fine of $150 and costs, taxed at $30.15. Respondent has removed the case to this court by writ of error.

Argued before HOOKER, MOORE, McALVAY, BROOKE, and STONE, JJ. Stephen H. Clink, for appellant.

Alex. Sutherland, Pros. Atty., and Wallace Foote, Asst. Pros. Atty., for the People.

BROOKE, J. (after stating the facts as above).

But two assignments of error are urged by respondent: ‘(1) The court erred in passing sentence and judgment on respondent, because the present liquor law, so called, of the state of Michigan, which took effect September 1, 1909, being Act No. 291, Pub. Acts 1909, repealed the law that was in force at the time that said offense was committed (Pub. Acts 1887, No. 313), as charged in said information, and that said Act No. 291 has no saving clause with reference to offenses committed before said act took effect. (2) That the court erred in pronouncing sentence and judgment, because the law, which makes acts charged against your petitioner in said information an offense at the time they were committed, has been repealed, and is not now in force or effect.’

Act No. 291, Pub. Acts 1909, is entitled: ‘An act to amend the title and sections one, two, four, five, six, seven, eight and seventeen of act No. three hundred and thirteen of the Public Acts of eighteen hundred and eighty seven, entitled ‘An act to provide for the taxation and regulation of the business of manufacturing, selling, keeping for sale, furnishing, giving or delivering spirituous and intoxicating liquors, and malt, brewed or fermented liquors and vinous liquors in this state, and to repeal all acts or parts of acts inconsistent with the provision of this act,’ as amended, said sections being compilers' sections five thousand three hundred seventy nine, five thousand three hundred eighty, five thousand three hundred eighty two, five thousand three hundred eighty three, five thousand three hundred eighty four, five thousand three hundred eighty five, five thousand three hundred eighty six, and five thousand three hundred ninety five of the Compiled Laws of eighteen hundred ninety seven, and to further amend said act by adding five new sections thereto to stand as sections thirty-five, thirty-six, thirty-seven, thirty-eight and thirty-nine.' The title as amended is as follows: ‘An act to provide for the taxation, licensing and regulation of the business of manufacturing, selling, keeping for sale, furnishing, giving or delivering spirituous and intoxicating liquors and malt, brewed or fermented liquors, and vinous liquors, in this state, and to repeal all acts or parts of acts inconsistent with the provision of this act.’ This title is identical with the title of the old law governing the liquor traffic, except that the word ‘licensing’ has been inserted in this title. 2 Comp. Laws, p. 1686. Section 7 of the old act (Compilers' section 5385) is in part as follows: ‘If any person or persons shall engage or be engaged in any business requiring the payment of a tax under section 1 of this act, without having paid in full the tax required by the act, and without having the receipt and notice for such tax posted up as required by this act, or without having made, executed and delivered the bond required by this act, or shall in any manner violate any of the provisions of this act, such person or persons shall be deemed guilty of a misdemeanor, and, upon conviction thereof, if there is no specific penalty provided therefor by this act, shall be punished by a fine of not more than two hundred dollars and costs of prosecution, or by imprisonment in the county jail not less than ten days nor more than ninety days, or both such fine and imprisonment in the discretion of the court. And in case such fine and costs shall not have been paid at the time such imprisonment expires, the person serving out such sentence shall be further detained in jail until such fine and costs shall have been fully paid: Provided, that in no case shall the whole term of imprisonment exceed six months. And any person or persons engaged in any business requiring the payment of a tax under section one of this act, who, after paying the tax so required, shall be convicted of a violation of any of the provisions of this act, shall thereby, in addition to all other penalties prescribed by this act, forfeit the tax so paid by him or them, and be precluded from continuing such business for the remainder of the year or time for which said tax was paid, and be debarred from again engaging in any business requiring the payment of a tax under section one of this act, or from becoming a surety or sureties upon any bond required under section seven of this act, for the period of one year from the time of such conviction.’

Section 7, Act No. 291, Pub. Acts 1909, is in part as follows: ‘If any person or persons shall engage or be engaged in any business requiring the payment of a tax under section one of this act, without having his or their application for a license approved and bond approved as provided in this act, and without having paid in full the license fee required by this act, and without having the receipt and license for such tax posted up as required by this act, or without having made, executed and delivered the bond required by this act, or shall in any manner violate any of the provisions of this act, such person or persons shall be deemed guilty of a misdemeanor, and upon conviction thereof, if there is no specific penalty provided therefor by this act, shall be punished by a fine of not more than two hundred dollars and costs of prosecution, or by imprisonment in the county jail not less than ten days nor more than ninety days, or both such fine and imprisonment in the discretion of the court. In case such fine and costs shall not have been paid at the time such imprisonment expires, the person serving out such sentence shall be further detained in...