People v. Shuler

• Decision Date: 23 March 1904
• Citation: 98 N.W. 986,136 Mich. 161
• Court: Michigan Supreme Court
• Parties: PEOPLE v. SHULER.

98 N.W. 986

136 Mich. 161

PEOPLE v. SHULER.

Supreme Court of Michigan

March 23, 1904

Exceptions from Circuit Court, Eaton County; Clement Smith, Judge.

Oliver P. Shuler, Sr., was convicted of keeping a place where intoxicating liquors were sold, in violation of the local option law, and excepts. Affirmed.

Lewis J. Dann, Pros. Atty., for the People.

Lyman H. McCall and Frank A. Dean, for defendant.

CARPENTER J.

Respondent a druggist in the city of Charlotte, was convicted in the court below under an information charging him with keeping a place where intoxicating liquors were sold, in violation of the local option law in force in Eaton county; the same being Act No. 183, p. 275, of the Public Acts of 1899. We are asked to set aside the conviction for several reasons.

1. It is contended that Act No. 183 is unconstitutional, for several reasons:

(a) That it is unconstitutional because it violates section 25 of article 4 of the Constitution of Michigan. This section reads: 'No law shall be revised, altered or amended by reference to its title only; but the act revised, and the section or sections of the act altered or amended shall be re-enacted and published at length.' Act No. 183, p. 275, of the Public Acts of 1899, purports to repeal section 7 of Act No. 207, p. 289, of the Public Acts of 1889, to amend various sections of said act, and to add a new section, viz., section 25. The amended sections and the new section are re-enacted and published at length. It is the contention of respondent that 'the whole of the revised act [that is, the sections not amended, as well as those amended] should and must, under the Constitution, above quoted, be re-enacted and published in full.' We think this contention is answered by People v. Pritchard, 21 Mich., at page 241, where it is said: 'It is a full compliance with the terms as well as the purpose of that provision [viz., the constitutional provision under consideration] if the section as amended is set forth at length, with such reference to the old law as will show for what the new law is substituted.' See, also, People ex rel. Comstock v. Judge, 39 Mich. 195; Gordon v. People, 44 Mich. 485, 7 N.W. 69; and People v. Mahaney, 13 Mich., at page 497, where it is said: 'If, whenever a new statute is passed, it is necessary that all prior statutes modified by it by implication should be re-enacted and published at length as modified, then a large portion of the whole code of laws of the state would require to be republished at every session, and parts of it several times over, until, from mere immensity of material, it would be impossible to tell what the law was. If, because an act establishing a police government modifies the powers and duties of sheriffs, constables, water and sewer commissioners, marshals, mayors, and justices, and imposes new duties upon the executive and the citizen, it has thereby become necessary to reenact and republish the various laws relating to them all as now modified, we shall find, before the act is completed, that it not only embraces a large portion of the general laws of the state, but also that it has become obnoxious to the other provisions referred to, because embracing a large number of objects, only one of which can be covered by its title.' The case of Mok v. Building & Savings Association, 30 Mich. 511, relied upon by defendant, is so obviously different from the case at bar that it has no application.

(b) It is contended that the statute is unconstitutional because it discriminates against druggists doing business in a local option county, like Eaton, as compared with druggists in the counties in which that law is not in force. It seems to us that that contention is answered by the decision of this court holding our local option act constitutional. See Feek v. Township Board, 82 Mich. 393, 47 N.W. 37, 10 L. R. A. 69. It followed from that decision that, in the judgment of this court, discrimination of this character was lawful, and this decision is in harmony with the decisions of the Supreme Court of the United States. Missouri v. Lewis, 101 U.S. 22, 25 L.Ed. 989; Chappel, etc., Co. v. Sulphur Mines Co., 172 U.S. 474, 19 S.Ct. 268, 43 L.Ed. 520; Magoun v. Savings Bank, 170 U.S. 283, 18 S.Ct. 594, 42 L.Ed. 1037.

(c) This statute requires the druggist, each week, to make a report to the prosecuting attorney, stating the details of sales of liquor made by him during the preceding week. It is contended that this, in effect, compels the defendant to be a witness against himself, and therefore violates section 32, art. 6, of our state Constitution. This contention is answered by People v. Henwood, 123 Mich. 317, 82 N.W. 70, with the reasoning of which we are fully satisfied.

2. The warrant charged two separate and distinct crimes of the same degree, viz., that of making a specific illegal sale of liquor, and that of keeping a place for the illegal sale of liquor. Respondent was examined on both these charges, and the justice bound him over on both, and declined to compel the prosecution to elect upon which charge it should proceed. Subsequently respondent moved to quash the information on the ground that he had not had the preliminary examination to which he was entitled. It is contended that he did not have this examination because he was examined before and bound over by the justice on two charges, instead of on the one upon which he was convicted. In support of this contention defendant says that he was entitled to know upon what charge he was being held to the circuit. See Yaner v. People, 34 Mich. 286. This principle and authority manifestly have no application. Respondent did know upon what charge he was held to the circuit court. It is well settled (see People v. Rohrer, 100 Mich. 126, 58 N.W. 661; Tiedke v. Saginaw, 43 Mich. 64, 4 N.W. 627; People v. Jackman, 96 Mich., at page 275, 55 N.W. 809) that one should not be subjected to trial for two separate and distinct offenses at one time. The reason for this rule is stated to be, 'The jury might agree upon a verdict of guilty, while unable to agree upon any one of the charges.' Tiedke v. Saginaw and People v. Jackman, supra. So far as we are informed, this rule has never been applied to preliminary examinations before a justice, and the reason for the rule, as stated above, would not make it applicable there. Moreover, the two charges against respondent were not separate and distinct charges. Under Comp. Laws 1897, � 5429, the specific illegal sale was presumptive evidence that respondent kept a place where liquors were sold. The examination before the justice, then, on these two charges, took...