16 Mich. 472 | Mich. | 1868
The plaintiff in error was convicted in the Recorder’s Court of the city of Detroit for a broach of the ordinance “as to quiet and good order.” This ordinance in its first section provides that no person shall keep open his or hei store, shop, ordinary, saloon, bar room, ball alley, beer hall, restaurant, pleasure garden, victualing house, billiard room, grocery or other place of business, pleasure or amusement, or give, or make or be present at, or take part in, or permit on any premises occupied by him or her, any public show, diversion, theatrical representation, ball, dance, game or play, on the first day of the week, called Sunday. It then further provides that this section shall not be construed to prevent, among other things, the furnishing of meals and lodging to travelers and boarders, nor to prevent the keepers of gardens, beer halls, saloons, or other pleasure resorts, from doing business between the hours of 2 p. nr. and 10 p. m. under certain restrictions. The complaint charged that, at the city of Detroit, on Sunday, the first day of September, 1867, the plaintiff in error, keeper of a saloon bearing street number 4 "Woodward avenue, did then and there unlawfully keep his saloon open, before the hour of two o’clock in the afternoon, contrary to said-ordinance, etc.
It is claimed that this complaint is insufficient, because it does not negative the exceptions contained in the first section of the ordinance; that is, among other things, it does not negative the fact that the plaintiff in error kept the saloon open in order to supply meals to boarders and lodgers; which would have been no offense under the ordinance.
The rule in pleading statutes is stated by Mr. Justice Manning in Myers v. Carr, 12 Mich. 63. In declaring on a statute, where there is an exception in the enacting clause, the pleader must negative the exception; but where there is no exception in the enacting clause, but an exemption in a proviso to the enacting clause, or in a subsequent
It appears that on the trial in the Recorder’s Court the plaintiff in error gave evidence to show that some persons were accustomed to take meals at his saloon; and he thereupon claimed a right to keep his saloon open for that purpose, and also claimed that “ if the ordinance allows a store or saloon to be kept open on Sunday for one kind of business, it necessarily follows that said store or saloon would thereby be opened for all kinds of business.” This claim is gravely made, but scarcely admits of a grave answer. Every livery stable, every drug store, and even any private dwelling house in the city, might lawfully be turned into a tippling shop on Sunday, if this position has any substance It is certainly lawful to keep them opeu for some purposes on that day; but it is entirely competent to forbid their being kept open for other purposes, as has been done by this ordinance. To “keep open,” within the meaning of the ordinance, implies a readiness to carry on the usual business therein; and if this business is not within the exceptions of the ordinance, the offense is committed.
The evidence tended to show that the plaintiff in error kept his saloon open on the Sunday in question, in order to supply customers with drinks at his bar. This was not a lawful purpose under the ordinance; and it is no excuse that he may also have furnished meals to boarders at the same place. The lawful business — if it was one — can not protect the unlawful. Whether the evidence was sufficient to establish the fact that he kept his place of business open for the one purpose rather than for the other, is a question
