Rode v. Phelps

• Decision Date: 09 May 1890
• Citation: 45 N.W. 493,80 Mich. 598
• Court: Michigan Supreme Court
• Parties: RODE v. PHELPS, County Treasurer.

45 N.W. 493

80 Mich. 598

RODE v. PHELPS, County Treasurer.

Supreme Court of Michigan

May 9, 1890

Mandamus by Edward Rode to Ralph Phelps, Jr., Wayne county treasurer.

F. A. Baker, (Geo. F. Robison of counsel,) for relator.

MORSE J.

This case involves the constitutionality of Act No. 213 of the Public Acts of 1889, known as the "New Liquor Tax Law." Under the liquor tax law of 1887, the annual tax upon "the business of selling only brewed or malt liquors at wholesale or retail" was $300. Pub. Acts 1887, p. 446. The law of 1889 fixes the tax "upon the business of selling malt, brewed, fermented, or vinous liquors at wholesale, and not at retail," at $500, (Pub Acts 1889, p. 302,) and "upon the business of selling spirituous, intoxicating, malt, brewed, fermented, or vinous liquors at retail, $500." The act of 1889 differs from the law of 1887 in that it makes no distinction in the amount of the tax between the sale of spirituous and intoxicating liquors, and the sale of malt, brewed, fermented, and vinous liquors. It makes no difference whether they are sold singly, or both at one place. The tax is the same, to-wit, $500.

The relator is a resident of the city of Detroit, engaged in the business of selling malt, brewed, and fermented liquors at retail at 107 Gratiot avenue. Intending to continue the business for the year 1890, on the 16th day of April, 1890, he tendered to Ralph Phelps, Jr., the county treasurer of Wayne county, the sum of $300, with an affidavit that he was then engaged in said business, and that he intended to engage in the same business, at the same place, from May 1, 1890, to April 30, 1891, and requested the said county treasurer to accept said $300, and to issue a receipt to said relator, under the provisions of Act No. 313 of the Public Acts of 1887, for the business of selling malt, brewed, or fermented liquors at retail for the year commencing May 1, 1890. The county treasurer refused to accept said money, or to issue said receipt, on the ground that the act of 1889 was in force, and that under said act the retail tax was fixed at $500 upon the business of selling such liquors.

It is claimed by the relator that the act of 1889, (No. 213, p. 301,) as signed by the acting lieutenant governor and the speaker of the house, and as approved by the governor and deposited with the secretary of state, was never passed by the legislature, which fact is established by the journals of the two houses. Upon an examination of such journals, we find, beyond question, that this act was never adopted by both houses in the shape that it was certified to the governor and approved by him. The history of this failure of legislation, in brief, as shown by the journals, is as follows: The bill was introduced in, and finally passed by, the house, and sent to the senate. The senate made nine amendments to the bill as it passed the house. Upon its return to the house, these amendments were reported in detail to the house, and spread upon the journal. The bill, as it came from the senate, is set out at length and in full in the house journal, from page 1792 to page 1804, inclusive. The house refused upon June 5, 1889, to concur in any of the senate amendments. House Journal, p. 1818. Afterwards, two separate committees of conference were appointed to adjust the differences between the two houses. The second conference committee recommended that the house concur in the first, third, sixth, seventh, eighth, and ninth of the senate amendments; and, by the subsequent proceedings, these may be considered as properly receiving the concurrence of both houses, and are found in the act approved by the governor. In relation to the second, fourth, and fifth of the senate amendments, the conference committee made certain recommendations compromising and adjusting the differences between the two houses. The report of this second conference committee was agreed to and adopted by the two houses, and the bill as so amended was passed by each house. But, in engrossing the bill and presenting it to the governor, the bill, as originally passed by the house and sent to the senate, with the nine senate amendments added thereto as it passed the senate, was copied, and all the amendments and modifications proposed by said second conference committee and adopted by both houses were omitted. In this shape the bill was signed by the president of the senate, or acting lieutenant governor, and the speaker of the house, approved by the governor, and deposited in the office of the secretary of state.

It follows that this act, as it now stands upon the statute-books, (Act No. 213, Pub. Acts 1889,) was never passed by the house, but rejected; and, although it once had the approval of the senate, that body subsequently adopted the amendments and modifications of the conference committee. So that the act, in fact, as it now reads, was adopted by neither house. These things are plainly apparent from a perusal of the journals, and a comparison of the bill as there recorded, as being passed by both houses, and the act shows the difference between the two. These differences are:

First. Upon the business of selling spirituous or intoxicating liquors at wholesale, and not at retail, $600 in the bill as passed, when it is $500 in the act as approved.

Second. Upon the business of selling spirituous, intoxicating, malt, brewed, fermented, or vinous liquors at wholesale and at retail, $1,100 as passed, and $1,000 in the act as signed by the governor.

Third. Section 3 of the bill as passed reads as follows:

"Sec. 3. The penal provisions of this act shall not apply to druggists who have a permit to sell any of the liquors enumerated in section one of this act for chemical, scientific, sacramental, medicinal, and mechanical purposes, as provided in this section. The township boards and village and city councils of the respective towns, villages, and cities of this state, upon the written application of any druggist who is, or who employs, a registered pharmacist, may grant to such druggist, if they deem proper, a permit to sell the liquors enumerated in this act for chemical, scientific, sacramental, medicinal, and mechanical purposes, but for no other purposes whatever. The sum to be paid to the township, village, or city for such permit shall be one dollar, which sum shall be due and payable when said permit is granted. Applications for permits to be made by petition signed and sworn to by the applicant, and filed with the township, village, or city clerk, or recorder, as the case may be, of the township, village, or city in which such druggist proposes to sell intoxicating liquors under the permit applied for, which petition shall state the applicant's name, place of residence, in what business he is then engaged, and in what business he has been engaged for two years next preceding the time of filing petition; that he is, or employs, a registered pharmacist; that he has not been adjudged guilty of violating the law relating to intoxicating liquors within the last two years preceding his application; and that he desires a permit to keep and sell such liquors for chemical, medicinal, sacramental, scientific, and mechanical purposes, and for no other purposes whatever. Permits granted under this section shall be for a term ending on the first day of May next ensuing, but such permit may be revoked by the authority granting the same whenever the holder of such permit shall have been adjudged guilty of violating any of the provisions of this act, whether relating to his business as druggist or not. It shall not be lawful for any such druggist, nor for any person whose business consists in whole or in part of the sale of drugs and medicines, directly or indirectly, by himself, his clerk, agent, or employe, at any time, to sell, furnish, give, or deliver any spirituous, intoxicating, malt, brewed, fermented, or vinous liquors, or any mixed liquor, a part of which is spirituous, intoxicating, malt, brewed, fermented, or vinous, to a minor, except for medicinal or mechanical purposes, on the written order of the parent or guardian of such minor, nor to any adult person whatever who is at the time intoxicated, nor to any person in the habit of getting intoxicated, nor to any person when forbidden in writing so to do by the husband, wife, parent, child, guardian, or employer of such person, or by the supervisor of the township, mayor, director of the poor, or any supervisor or alderman of the city, or president or trustee of any village, or superintendent of the poor of the county in which such person shall reside or temporarily remain, nor to any other person to be used as a beverage, nor to any person to be drank on the premises, nor to be mixed and drank with any beverage drawn from a soda fountain or other apparatus or device for dispensing aerated or other beverages; but such druggist shall be allowed to sell said liquors for medicinal, chemical, scientific, mechanical, and sacramental purposes only, without the payment of any tax specified in section one, and subject to the following restrictions and conditions:

"Every such dealer in drugs and medicines shall procure from the treasurer of the county in which he is carrying on said business suitable record books, and shall keep the same in which shall be recorded in ink, by said druggist, his clerk or employe, all the applications for, and sales and gifts of, any spirituous, intoxicating, malt, brewed, fermented, or vinous, or mixed liquors, for any purpose whatsoever, together with the full name or names of the person or persons, applying for such liquor or liquors, as aforesaid, the date of each application, sale, or gift, the amount and kind of liquor applied for and sold and given away to each and...