People v. Whitney

• Decision Date: 04 June 1895
• Court: Michigan Supreme Court
• Parties: PEOPLE v. WHITNEY ET AL.

63 N.W. 765

105 Mich. 622

PEOPLE v. WHITNEY ET AL.

Supreme Court of Michigan

June 4, 1895

Exceptions from circuit court, Allegan county; Philip Padgham, Judge.

Charles E. Whitney and Ellis Aldrich were convicted for keeping for sale and selling liquor without a license, and bring exceptions. Affirmed.

Fred A. Maynard, Atty. Gen., and F. E. Fish, Pros. Atty., for the People.

Ed. J Anderson (H. H. Pope and H. Hart, of counsel), for defendants.

LONG J.

Respondents were convicted upon an information charging that they "heretofore, to wit, on the 27th day of July, in the year one thousand eight hundred and ninety-four, at the village of Plainwell, in Allegan county, did then and there unlawfully keep a saloon and place where vinous, malt brewed, fermented, spirituous, and intoxicating liquors, and mixed liquors and beverages, a part of which was intoxicating, were sold, stored for sale, and furnished as a beverage; they, the said Charles E. Whitney and Ellis Aldrich, not selling, storing for sale, or furnishing such liquors as a druggist or registered pharmacist under and in compliance with the restrictions and requirements imposed upon druggists and registered pharmacists by the general laws of the state of Michigan, and such liquors not being wine sold for sacramental purposes, nor pure alcohol sold or furnished by a druggist or registered pharmacist for medicinal, art, scientific, or mechanical purposes; but such liquors were sold, stored for sale, and furnished contrary to the provisions of a certain resolution adopted by the board of supervisors of the county of Allegan, state of Michigan on, to wit, the 26th day of February, A. D. 1894, in the pursuance of Act No. 207 of the Public Acts of the state of Michigan for the year 1889. The aforesaid keeping a saloon and room where such liquors were sold, stored for sale, and furnished by the said Charles E. Whitney and Ellis Aldrich was then and there done in violation of the provisions of said Act No. 207 of the Public Acts of the state of Michigan for the year 1889, which was then in full force and effect in said Allegan county, contrary," etc. Complaint was made against one Fred Rowe, as well as the two respondents. They all had an examination before the justice. The complaint and warrant charged the offense to have been committed on, to wit, the 30th day of July, 1894. On the examination the respondents were held for trial. The information was filed against the respondents, and the offense alleged to have been committed on July 27, 1894. The information was filed at the October term, 1894. Counsel for respondents moved to quash the proceedings, on the grounds (1) That the information does not charge any crime under the laws of this state. (2) That it is not charged in the information that vinous, malt, brewed, fermented, spirituous, or intoxicating liquors, or mixed liquors and beverages, a part of which was intoxicating, was either sold, stored for sale, or furnished as a beverage at the time the respondents are charged with keeping a saloon. (3) Nor is it charged that they or either of them sold, stored for sale, or furnished any of the liquors mentioned in Act No. 207 of the Public Acts of 1889. (4) It is not charged that either of the respondents were not selling, storing for sale, or furnishing such liquors as a druggist or registered pharmacist may, under and in compliance with the restriction and requirements imposed upon druggists and registered pharmacists by the general laws of the state. (5) That the respondents have never been examined before a justice of the peace, as required by law, of the offense charged in the said information. (6) That the offense charged in the said information is one that is laid and occurred on a day different from that charged in the complaint in this case, and is a different offense from that charged in said complaint, and upon which examination was had in justice's court. (7) That said information should designate the building in which the room therein mentioned is situated. (8) It should also describe said room. The case against Rowe was nolle prossed. The motion to quash the proceedings was overruled.

The first contention is that Act No. 207, Pub. Acts 1889, under which the complaint is made, is unconstitutional, as "it provides for excessive fines to be imposed, and caused cruel and unusual punishments to be inflicted, in violation of article 6, � 31, of the constitution of the state." Upon the legislature alone is conferred the power to fix the minimum and maximum of the punishment for all crimes. People v. Smith, 94 Mich. 644, 54 N.W. 487. It is true that cases might arise when the punishment imposed by an act is so cruel and unusual that the courts would interfere and protect the rights of the party, but in the present case the penalties fixed by the act are such as the legislature had the power to impose.

2. It is contended that, the date charged in the information being upon a different date than that charged in the complaint and warrant, a separate and distinct offense was charged than that which the parties were examined upon, and the information is therefore bad for that reason. There was some testimony on the examination showing the offense committed by the two respondents was upon the date charged in the information. The prosecutor was not bound by the date charged in the complaint and warrant. He had the right to inform against the parties for the offense committed on the date shown by the examination. Annis v. People, 13 Mich. 511. The averments in the information are sufficient under the statute, and we are unable to agree with counsel that it is defective upon the grounds stated in the objections. The complaint was made by Fidus E. Fish, prosecuting attorney of the county, before B. A. Nevins, a justice of the peace, who is a brother-in-law of Mr. Fish. It is contended that this rendered the proceedings before the justice void, under How. St. �� 6822, 7245, prohibiting any judge or justice of the peace from hearing any case where he is related to either party in certain degrees by marriage or blood. The complainant is not a party to the suit, within the meaning of those provisions of the statute. Parsons v. People, 21 Mich. 509.

3. On the trial the prosecution offered in evidence a certified copy of the preamble and resolution of the board of supervisors, ordering prohibition in the county. This was objected to by the defendant on the following grounds: "(1) That there is no evidence that the resolution was ever published as required by the statute. (2) The resolution prohibits the sale of wine for sacramental purposes, and does not state that anything therein contained shall not prohibit druggists and registered pharmacists from selling or furnishing pure alcohol for medical, art scientific, and mechanical purposes, in accordance with section 2283b4 of the Statutes. These are objections I will state on record to the proceedings that lead up to the adoption of this resolution and the publication in it. (3) The call for the special session of the supervisors does not state when the petitions praying for an election were presented to the county clerk in order to show that the call was issued within five days thereafter, and to show that the date set in the call for the meeting of the board is not less than ten or more than twenty days from the presentation and filing of such petition, in accordance with section 5 of Act No. 207 of the Laws of 1889. (4) The notice of the call for a special session of the board of supervisors under section 5 of the act was not served upon the supervisor from the township of Saugatuck at least ten days before the time fixed for such meeting, and that he was not present at any time during such board meeting, as we will show by the records. (5) Said notice was not served upon the supervisor from the township of Saugatuck by causing a copy thereof to be delivered to him personally, or by leaving the same at his place of residence, as required by section 5 of the act, and that the return of such service is defective in that particular. (6) That the county clerk did not cause to be served upon and delivered to the clerks of the townships and voting precincts of this county, without delay, a certified copy of the order ordering and calling the election, as required by section 6 of the act. (7) Nor were such orders delivered personally to such clerks, as required by said section 6, as shown by the returns on the files here in the clerk's office. (8) The affidavit of publishing the order calling the election in the Allegan Journal is by Charles W. Kellogg, foreman, and it states that it was published for three successive weeks, and that the first publication was on January 5, 1894, and the last on January 26, 1894. We claim that such a state of facts could not exist, and that there could not be three successive weeks, and have the first publication on the 5th and the last on the 26th; that that skipped one week, and broke the continuity of the publication. (9) Such...