Terre Haute Brewing Co. v. Liquor Control Comm'n, Motion No. 50.

• Decision Date: 09 November 1939
• Docket Number: Motion No. 50.
• Citation: 291 Mich. 73,288 N.W. 339
• Parties: TERRE HAUTE BREWING CO., Inc., v. LIQUOR CONTROL COMMISSION et al.
• Court: Michigan Supreme Court

291 Mich. 73

288 N.W. 339

TERRE HAUTE BREWING CO., Inc.,

v.LIQUOR CONTROL COMMISSION et al.

Motion No. 50.

Supreme Court of Michigan.

Nov. 9, 1939.

Mandamus proceeding by the Terre Haute Brewing Company, Inc., an Indiana corporation, against the Liquor Control Commission of the State of Michigan, and Commissioners Orrin A. DeMass and others to require the Commission to approve a beer label proposed to be used by plaintiff.

Petition dismissed.

BUSHNELL, J., BUTZEL, C. J., and POTTER, J., dissenting.

Argued before the Entire Bench.

Rosenburg, Painter & Cristy, of Jackson, for plaintiff.

Thomas Read, Atty. Gen., and Edmund E. Shepherd, Asst. Atty. Gen., for defendant.

Glenn C. Gillespie, of Pontiac, amicus curiae.

Race, Haass & Allen, of Detroit (C. Redman Moon, of Detroit, of counsel), amicus curiae.

NORTH, Justice.

Upon plaintiff's petition and our order to show why mandamus should not issue requiring the liquor control commission to approveplaintiff's ‘Gold Label’ beer label, defendant made a return. The question is whether on the record thus made plaintiff is entitled to mandamus.

Plaintiff, an Indiana corporation engaged in the manufacture and sale of malt beverages, petitioned the Michigan liquor control commission, herein designated as defendant, to approve a label to be used on plaintiff's products sold in Michigan. Theretofore plaintiff's label had been approved by the Federal Alcohol Administration of the Federal Treasury Department. Plaintiff's application was opposed by the Goebel Brewing Company which four days earlier secured approval by the liquor control commission of its ‘Gold Label’ beer label. The label of the Goebel company embodied near the top in rather a conspicuous form the expression ‘Gold Label’. The label of which plaintiff seeks approval has the expression ‘Gold Label’ centrally located and in letters which make it pronouncedly conspicuous. From the defendant's return it appears that refusal to approve plaintiff's label was in consequence of the objection ‘by the Goebel Brewing Company of Detroit, Michigan, as being too similar to their label on which they are carrying on an advertising campaign.’

Primarily plaintiff's position is that since the label it submitted for approval is a ‘plain label’, plaintiff is entitled to have it approved as a matter of right. This contention is based upon plaintiff's construction of the statute governing the Michigan liquor control commission, and has to do with its powers and limitations.

The constitutional provision for a liquor control commission, so far as is pertinent here, reads as follows:

‘The legislature may by law establish a liquor control commission, who, subject to statutory limitations, shall exercise complete control of the alcoholic beverage traffic within this state, including the retail sales thereof; * * *.’ Art. XVI, Sec. 11, as amended in 1932.

The statute, Pub. Acts 1933, Ex.Sess., No. 8, as amended by Pub. Acts 1937, No. 281, under which the Michigan liquor control commission is organized, as to its title and the parts here pertinent, reads:

‘An Act to create a liquor control commission for the control of the alcoholic beverage traffic within the state of Michigan, and to prescribe its powers, duties and limitations * * * [and] to provide for the licensing and taxation thereof, * * *.’

‘Sec. 7. The commission shall adopt rules and regulations governing the carrying out of this act and supplemental thereto, within the provisions of this act.’ Stat.Ann.1939 Cumulative Supp. 18.977.

‘Sec. 46. Any person who, by himself or by his agent or servant, shall sell, offer for sale, expose for sale, or have in possession with intent to sell, any alcoholic liquor that is adulterated or misbranded within the meaning of this section shall be guilty of a violation of this act. * * For the purpose of this section alcoholic liquor shall be deemed to be misbranded when not plainly labeled, marked or otherwise designated as shall be prescribed by the rules and regulations of the commission.’ Stat.Ann. 18.1017.

Obviously in an attempt to conform with section 7 above quoted, the Commission, as appears from its return, adopted as section 11 of its rules and regulations as follows:

‘Every brewery selling beer or malt beverages in Michigan shall submit to the Commission for approval three copies of each label used on beer or malt beverages sold in this State and the Commission hereby reserves the right to approve or disapprove any such labels to be used upon alcoholic beverages sold in the State of Michigan.’

Plaintiff's contention is more particularly indicated by the following quoted from its brief:

‘This section (sec. 46) is the only section in the Act that makes any reference whatsoever to the powers, duties, or limitations of the Commission in regard to labeling, marking or designations of alcoholic liquors. The section is limited to adulterated and misbranded alcoholic liquors. In regard to branding or misbranding the sole test found in this section and consequently in the entire act is that of the word ‘plainly’. Nowhere else in this section or in the entire Act is the Commission given any power to set up or establish any other test as to what shall constitute misbranded alcoholic liquor. Nowhere in this Section or any place in the Act is the Commission given the power to pass upon labels for any other purpose than possibly for the purpose of determining whether a certain label constitutes misbranding. Nowhere in this Section or in the entire Act is the Commission given the power to disapprove a plainly labeled alcoholic liquor.'

‘Even if the Commission has the power to require that labels be submitted for approval, it is the contention of the plaintiff that once a label has been submitted to the Commission, the Commission is limited in its consideration of such label as to whether it shall be approved or disapproved, by the Constitution of the State of Michigan, the Liquor Control Act, and Section 46 of that Act, to the sole question of whether the submitted label constitutes a plain label and that if an alcoholic liquor carrying such a label would constitute a plainly labeled alcoholic liquor.’

Plaintiff's contention is not tenable. The construction it seeks to place upon the statute is entirely too restricted. Except as limited or defined by statute, the Constitution itself vests the statutory commission with plenary power to control alcoholic beverage traffic in this state. This appears from the constitutional provision hereinbefore quoted. And such is our holding in Scott v. Arcada Township Board, 268 Mich. 170, 255 N.W. 752;Noey v. City of Saginaw, 271 Mich. 595, 261 N.W. 88.

By enacting the second paragraph of section 1 of the liquor control statute, the legislature embodied the constitutional provision above quoted in the statute. This paragraph reads:

‘Except as by this act otherwise provided, the commission shall have the sole right, power and duty to control the alcoholic beverage traffic and traffic in other alcoholic liquor within the state of Michigan, including the manufacture, importation, possession, transportation and sale thereof.’ Stat.Ann. 18.971.

The constitutional provision that the commission ‘shall exercise complete control of the alcoholic beverage traffic within this state, including the retail sales thereof’, is limited only by express provisions or necessary implications embodied in...