Wright v. Bannan

• Decision Date: 11 July 1960
• Docket Number: No. 241,241
• Citation: Wright v. Bannan, 104 N.W.2d 509, 360 Mich. 455 (Mich. 1960)
• Parties: Wilbur WRIGHT, Petitioner, v. William H. BANNAN, Warden, et al., Respondent. Motion
• Court: Michigan Supreme Court

Page 509

104 N.W.2d 509

360 Mich. 455

Wilbur WRIGHT, Petitioner, v.William H. BANNAN, Warden, et al., Respondent.

Motion No. 241.

Supreme Court of Michigan.

July 11, 1960.

Wilbur Wright, in pro. per.

The Attorney General for the People.

Before the Entire Bench.

SOURIS, Justice.

Petitioner was convicted in 1956 of sale of narcotics in violation of P.A.1952, No. 266, (C.L.S.1956, § 335.151 et seq. [Stat.Ann.1957 Rev., § 18.1121 et seq.]) and was sentenced to imprisonment for 20 years to life.He now challenges the court's jurisdiction by petition for writ of habeas corpus, claiming said act to be unconstitutional for its failure to comply with the requirements of Michigan Constitution 1908, art. 5, § 21, and for violation of the Fourteenth Amendment to the Federal Constitution in its application to him.

At the beginning of 1952, the Uniform Narcotic Drug Act, P.A.1937, No. 343, ¹ (C.L.1948, § 335.51 et seq. [Stat.Ann. § 18.1071 et seq.]) provided, in pertinent part, as follows:

'Sec. 2.It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe administer, dispense, or compound any narcotic drug, except as authorized in this act.

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'Sec. 20.Any person violating any provision of this act, except those convicted of offenses involving minors, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 4 years or by a fine of not more than $2,000 or by both such fine and imprisonment.

'Any person who sells, prescribes, administers or dispenses any narcotic drug to any monor, except as authorized in this act, or any person who possesses or has under his control any narcotic drug with the intention of selling, prescribing, administering or dispensing said drug to any minor, except as authorized in this act shall be guilty of a felony, punishable by imprisonment in the state prison for a term of not less than 5 years nor more than 20 years, and in addition thereto by a fine of not more than $5,000.00.'

The act further provided for licensing certain persons dealing in narcotic drugs and exempted such licensed persons from certain, but not all, of the proscriptions contained in the act.

On May 7, 1952, P.A.1952, No. 266, was enacted and given immediate effect.Section 2 of the act provided:

'Sec. 2.Any person not having a license under the provisions of ActNo. 343 of the Public Acts of 1937, as amended, being sections 335.51 to 335.78, inclusive, of the Compiled Laws of 1948, who shall sell, manufacture, produce, administer, dispense or prescribe any narcotic drug shall be deemed guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for a term of not less than 20 years nor more than life.'

Section 7 of the act provided that it shall be construed as supplemental to and in conjunction with narcotic drug laws of the state and of the United States.

Petitioner contends that actNo. 266, as to his offense, did no more than increase the penalty (from imprisonment for not more than 4 years or a fine of not more than $2,000, or both, to imprisonment for not less than 20 years nor more than life) for conduct already proscribed by act No. 343 and that, therefore, it was nothing more than an implied amendment of the earlier statute.He contends that, because it failed to re-enact and publish at length the sections of the earlier act altered or amended, as required by art. 5, § 21 of the Michigan Constitution of 1908, it was constitutionally invalid.He further contends that, if it is invalid, he was convicted and is being imprisoned without due process of law in contravention of the Fourteenth Amendment to the Federal Constitution or, in the alternative, if it is not invalid and if it did not have the effect of impliedly repealing the earlier act, he was denied equal protection of the laws in violation of the same amendment because there would then be two distinct penalties provided for the same conduct which can be invoked discriminatorily by the State.

This Court long has recognized the inapplicability of art. 5, § 21, of the Michigan Constitution of 1908 to statutes, complete in themselves, which amend earlier statutes by implication.Thus, in People ex rel. Drake v. Mahaney, 13 Mich. 481, 496, Mr. Justice Cooley was 'unable to see' how an act which transferred duties from certain officers to other officers, and thereby had 'an amendatory effect by implication', could conflict with the predecessor of the constitutional provision here involved.See alsoChecker Mutual Automobile Insurance Company v. Wayne Circuit Judge, 330 Mich. 553, 557, 48 N.W.2d 129, and5 A.L.R.2d 1270.

Were we to hold that act 266 repealed act 343 to the extent that it described an offense covered by act 343 and prescribed a different penalty therefor, we would have to presume that the legislature intended to grant immunity to all those who had violated act 343 but who had not yet been...