31 Mich. 200 | Mich. | 1875

Lead Opinion

Campbell, J.

Plaintiff in error was convicted of selling intoxicating liquor.

The suit was originally.brought before a justice, and was removed to the circuit court by appeal. The declaration, returned, and on which trial was had, was signed by no attorney, and was in general form, and substantially, though not literally, followed the terms of the precedent given in section ten of the liquor law, except that it did not set forth under what-section of the statute the prosecution was brought. This objection was made when evidence was offered, on the trial, and is alleged as error against the action of the circuit court.

By the provisions of the justice’s act (§ 5310), where a party declares in writing, the declaration must be conformed in substance to the rules of the circuit courts. In the absence of any statute, the rules of pleading have always *202required that the facts which will bring a person within the terms of a penal statute must be set out with substantial certainty, and no element of liability can be left out or misstated. More particularity has been required in such actions than in some other common-law actions in which general counts are allowed. But no statute of amendments has ever permitted substantial defects of description to be aided, and it has also been held quite uniformly that a full averment of facts, upon an action brought directly to recover a penalty, will not, even after verdict, aid a declaration which does not aver the obligation to have arisen under a statute. — See 1 Chitty's Pl., 272-4, and notes and cases cited.

It cannot be claimed that the present declaration would be good in substance at common law, or by the statutes of amendments. The statutes which have made special provision for these actions, and which have removed the necessity of alleging facts specially, have not declared that any thing may be left out which they give as the elements of a statutory declaration. They leave it optional whether to declare in one way or in the other, but when they provide that it shall be sufficient to declare in a way specified, it cannot be held that they will allow a common-law declaration to be dispensed with upon any less certainty than that specified.

The statute for the collection of penalties declares that in actions of debt to recover penalties and forfeitures, it shall be sufficient, without setting forth the special matter, to allege the indebtedness “ whereby an action hath accrued according to the provisions of the statute by which such penalty or forfeiture is imposed, specifying the section and chapter, as the case may require, or in some other similar terms referring to such statute.” — Comp. L. 1871, § 6845. The subsequent sections, providing for several particular cases, repeatedly allude to what shall be a sufficient reference to the statute, by speaking of it as “prescribed in” this section. — See §§ 6846-7.

The liquor lawr, in declaring what form of declaration *203“ may be ” used, gives a form fully conforming to § 6845.— See Comp. L. 1871, § 2143, being section 10 of tbe liquor law. And since this law has gone very far in removing the necessity of specific averments, we cannot assume that the door was intended to be opened any wider than the statute allows. It was probably the peculiar nature of the evils aimed at, which, induced the legislature to go as far as they have done, in dispensing with fuller allegations, and it is not consistent with justice to extend such liberality beyond what is indicated by the statutes.

The liquor law' does not put all sales upon the same footing. The sales of beer, wine and cider, which are forbidden, are in small quantities,' and the evil chiefly aimed at here is shown to be, tippling at the place of sale. The sale of a gallon or of five gallons of the respective liquors named in § 2152, to be taken away and not used on the-premises, is no offense.

But as to other intoxicating liquors, the quantity sold is quite immaterial. The law reaches sales generally. — §§" 2186-2188.

There is, then, a real difference in the sales which make parties responsible, and the penalties being the same for illegal sales of all kinds of liquors, there is the more reason for indicating under which section a party is to be charged,.

The declaration and record of appeal contain no signature of the prosecuting attorney or other attorney, and it was thereupon objected in the circuit that the declaration was not signed by any one as prosecutor who is authorized’ to prosecute said cause under the law, but the objection* was overruled.

In the absence of statute no action can be brought on behalf of the public except by the proper public agent,. The liquor law allows suits to be brought before a justice by private complainants; but no private attorney can appear, except in the townships where the prosecuting attorney does not reside. — § 2141. This is not a mere matter of form,, but i's intended, for substantial reasons of public policy, to*204Iceep the control of prosecutions on behalf of the public within responsible direction.

In justice’s courts private parties may appear in person or by attorney, but when the appearance is by attorney the authority may always be questioned, and in some cases must be shown affirmatively. — Comp. L. §§ 5304, 5305. The declaration has always been required to be signed by some one, in all courts, and this signature is usually the test to determine who appears. By the practice formerly in vogue it was necessary to append to every declaration a warrant of attorney to indicate the agency (see Tidd’s Pr., ch. 4); and it is expressly provided in the statute of jeofails of this state, that judgment shall not be arrested for want of such warrant. — Comp. L. § 6051. But it can never be unimportant to require that every suit shall appear to have been brought by some one presumed to have authority. In Farmers and Mechanics' Bank v. Troy City Bank, 1 Doug., 457, the signature of an attorney was held equivalent under our practice to an averment of warrant and authority.

In the case of School District No. 4 v. Wing, 30 Mich., 351, an appellate proceeding was held illegally brought by any one but the statutory agent of a school-district; and the same principle had been previously applied in mandamus cases and in others, where unauthorized parties complained. — See People v. Navarre, 22 Mich., 1; People ex rel. Drake v. Regents, 4 Mich. R., 98.

The suit therefore stood without the appearance of any named prosecutor or attorney in either court, apparent on the record; and this was erroneous.

The judgment should be reversed, with costs.

Grates, Oh. J., concurred.





Concurrence Opinion

Christiancy, J.

I am not able fully to concur in the opinion of my brother Campbell in this case. That the declaration would *205have been bad upon demurrer, for having omitted to specify the section under which the action was brought, or the penalty claimed, I entirely agree; because it was too general in referring only to the entire “Act to prevent the manufacture and sale of spirituous or intoxicating liquors as a beverage,” and the statute as a whole applies to several different kinds of sales made under different circumstances.

Had the declaration been demurred to, it would have been held bad, and the prosecutor would have been compelled to amend by specifying the section under which he claimed to recover.

But by pleading the general issue, and going to trial upon it, I think .the defendant waived this objection, and left the people at liberty to prove any sale in violation of any section of the statute for which the same penalty was given.

As to the objection that the declaration was not signed by any prosecutor, this also was, I think, good cause of demurrer, but I do not think the defendant waived it by neglecting to demur and going to trial. It was not under the statute any declaration at all, and the objection would have been good in arrest of judgment at the circuit. On, this point therefore I concur with my brother Campbell in the result.






Concurrence Opinion

Cooley, J.

I concur in the result.