*1 Reports. Michigan [Oct, 228 GENERAL, PEOPLE, ATTORNEY ex rel. DONOVAN. Injunction—Intoxicating Liquors. 1. Nuisance — proceedings equity to authorize has The State place suppress nuisance the a maintenance of a as liquors intoxicating are sold in violation of law.1 where Title—Sufficiency. 2. Statutes — 272, 1915, Acts Act No. Pub. The title of amended 1917, 337, 112, Acts Pub. Act No. No. Pub. Acts Act closing, nuisances, buildings providing for the illegal purposes, held, sufficiently certain broad for used they being germane provisions; object to the its embrace expressed therein.2 Injunction Construction—Temporary —Continuance. 3. Same — that, act is construed to mean 2 of said while a Section place a certain a declare nuisance because suit pending, application plaintiff on the law is violation injunction, temporary if defendant shall ask for a a for continuance, appear if it shall have been made to complained nuisance, that, a of law violation so decree, temporary justify injunction proven, a if prayed as a matter of course. Bird, for shall be XX, dissenting.3 Wiest, Fellows, Requires of Statute Trial. New 4. Same —Misconstruction statute, through Where, misconstruction of said a defend hearing to a on the main forced issue on was four ant notice, days’ is reversed and the decree the case remanded merits; hearing practice prescribed on the chancery to suits in be followed.4 therefor (Ray), Wayne; J., presiding. Hart from Appeal (Docket 22.) 4,1924. No. Decided June Submitted 6, 1924. October Michigan, on the people
Bill State Dougherty, attorney general, relation B. of Andrew Cyc. 62; 2statutes, p. Liquors, 1036; 1intoxicating 33 C. X § 4ld., Liquors, 62; 3Intoxicating 414. 33 C. X § § 33 C. X v. Donovan. against Angela to abate Maria and another Donovan public plaintiff, defend- nuisance. From decree for *2 appeal. ants Reversed and remanded. General, Attorney
Andrew B. Dougherty, Thomas Green, Sessions, Hosier, J. Carl D. and Donald W. Attorney General, Assistants plaintiff.
Beaumont, Percy Donovan, Smith & Harris and J. for defendants. (dissenting). proceeding
Fellows, This was J. general attorney instituted Act 272 under No. 1915, Public Acts of Act as amended No. 337 of the 1917, Public Acts of and Act No. 112 of the Public Acts (Comp. Supp. 1922, of 1919 Laws § seq.). 7781 et property to defendant came Donovan with property partition considerable in other proceedings during had settlement her shortly mother’s estate proceedings before these were agent instituted. There is no claim that or her she any knowledge had intoxicating liquors or notice that being were question presented there sold. The sole validity legislation, this record is the de- announcing fendant’s counsel that court below in view of the contained section 2 of the presently act of 1919 and to which we shall refer he safely adjournment hearing. could not for an ask If doubt had existed to the State proceedings suppress equity authorize as a place intoxicating nuisance the where maintenance of liquors law, that were sold in violation of was doubt Supreme ended decision of the Court of the Kansas, Mugler United 123 U. States S. 273). any (8 Sup. We shall not Ct. consider sustaining
other of the the same view. numerous cases A reviewing many valuable note authorities will Reports. Michigan Case, Mugler In the L. R. 1474. how- in 5 A.
found ever, it was said: operation, in its that prospective “The statute is, upon is of a put the brand common nuisance does unless, place passage, place, after its purposes kept declared maintained for injurious community. to the Nor" adjudge any place required to to be a com- the court charged by simply it is because mon nuisance It first find it to be of that must State be such. legal is, ascertain, mode, character; some that must passed place was statute whether since being, been, used, to make it or is so question has
common nuisance.” against objections urged dispose of the here shall
We urged. only objections They here the act brief, are, as follows: counsel’s as we understand *3 (1) enough to the act is not broad That the title portion to provisions; that the of section embrace its providing: given days’ writing “Four notice shall be the defendant application, hearing and if then continued at his of instance, prayed writ as shall be as a matter course,” invalid. is deprive notice is so short (2) Because as to process law, of due defendant directing the issuance of the (3) Because writ granting upon application for defendant’s prayed for deprives the court of the exercise of the continuance judicial power attempted and is an exercise of that legislature. by the by of the act title was amended The 1. again amended of 1917 the act of act 1919. comprehensive it now it As stands and we are un any provisions able to detect act that are not germane object expressed title, to its at least pointed objection to none has out us. This been without merit. Donovan. It is days’
2. insisted that four of the hear notice gives ing hearing so prepare short' a time to for the deprive as to property process owner of due pointed law. It ap out that the act its terms plies to the guilty one, innocent owner as well as very and that property may valuable involved much preparation. more time for But needed time hearing fixed is the same as that fixed motions in the (Circuit circuit court Rule No. Court 15), and this court motions on like notice hears (Supreme 28). Many Court Rule No. mandamus cases large involving very and motions interests heard days’ this court on four notice. Eliminat ing, shall, objectionable as we provisions reasons, persuaded continuances for other are not we property deprived property owner of his process without due of law. brings
3. This question us to the meritorious By case. mandate the act the courts are left no granting discretion in applica a continuance on the defendant, tion fixing the terms granted. shall be fixes and assumes positively judgment direct the court it shall enter, the order it must make. No matter how' application may be, meritorious the occasioned sick ness, inability procure witnesses other causes beyond party, the control appeal no matter how ing judge, discretion of the trial no *4 may against matter how weak the case de fendant, go all of these and other considerations must naught provision valid, acknowledge if we is if power legislature independ to thus direct an government ent and branch co-ordinate of the State perform manner it its shall functions By legislative under the Constitution. fiat the writ prayed granted for must be and the hands of the court are tied. Reports.» Michigan judicial power, it, of vested in and all
The judicial legislature may not exercise courts. The legislature any it. Likewise or fraction of govern- judicial may deprive branch any judicial power fraction of or ment of the exercise the court must of it. If it direct what orders reasoning may by orders parity a of set aside take approval. by the not meet its made court which do Ed.), p. (7th Cooley’s In Limitations Constitutional 187, it said: indirectly “If cannot thus control courts, requiring them a action tion of construc- very according views, it to its own the law setting directly, by plain it aside their cannot do so grant trials,
judgments, compelling them to new order- directing offenders, ing discharge what progress particular judicial steps shall be taken inquiry.” p. 161, tersely 6 R. C. L. it is stated: And in determining “In a statute is invalid as a whether legislative portance judicial assumption power, im- it is of whether, proceeding under the author- note statute, questions judicial of a nature ized all judgment left to the courts.” granting of a motion for a continuance judicial granting performance function. judicial denying trial court dis- it the exercises frequently that such have held dis- cretion we it has not be reviewed unless been cretion will Evert, McNaughton 141; abused. v. 116 Mich. Daiber, 621; People Eamaus, 92 Mich. v. Winklemeir Lobell, 442; & Bach v. Kranich 227 Mich. Mich. terms and conditions which it 288. And the judicial likewise rest in the sound must shall judge. By of the trial discretion under the exercise of this discretion consideration judge and the ar- is taken from the trial rogates all decide in advance to itself to *5 v. Donovan. conditions upon cases terms and under the act what granted. This motions shall continuances power. judicial by an of assumption the legislature of Rebellion, During the the war of the providing act passed the of an State Arkansas con- brought pending all should suits or thereafter between peace of tinued ratification “until after the In the States.” United the States and Confederate judicial holding usurpation of the act invalid as a power by legislature, said: it was “Granting a continuance is either an exercise judicial appli- particular facts, discretion an or legal cation of being them, rules to facts ascertained by courts, used, application and the discretion by law made ex- court; and in case is either clusively judicial legislative an- act. act is an A legislative nunciation authority that certain: results particular conditions;; shall follow actions or but the ascertainment the act or condition and application consequences belong courts. law, general assembly, from the fact ^“But existing war between the United and the States States, Confederate and has directed that all suits in law equity of the courts of the shall be State continued till ended, the war is till the hostile nations have peace, made a treaty peace till a shall be rati- fied. No fact courts, is to be ascertained no application legal principle is to be made to the fact that the ascertained, courts, has but the registers legislative will, edict, are to record its closing indefinitely temple justice to all its suitors. “This the manner in which courts exercise judicial functions, proper subject, legitimate not a legislative use of authority, powers inasmuch government of this State divided the con- departments, stitution into distinct each of separate magistracy: confided to a powers legislative general assembly, to the powers judiciary.” to the Williams, Burt v. Ark. 91. Mabry Baxter, Heisk. supreme *6 Michigan Reports. 228
526 Tennessee, of speaking through court Justice, the Chief said: “But judgment, judgment such it is not the of — presiding the judge he is allowed no discretion
whether the severance the is to removal be allowed —he is give commanded to judgments, and the the judgments exact given prescribed by to be legislature. opinion judicial We are of that these are legislature.” acts of the Guy Hermance, In (63 v. 5 85), Cal. 73 Am. Dec. it was said the court: judicial “The cannot functions, exercise except case, and therefore cannot party, or law, one one general operation of a of from rule either as right remedy. portion to That therefore of the 1853, entitled, May, of provide act sale ‘An act to for the of the interest of the State of California etc., property prescribes within the water line/ injunction against
that no shall be issued the commis- invalid,” sions considering question usurpation In of the legislature, supreme judicial court Lapsley, 224, speak- Alabama in Weaver v. 43 Ala. Justice, through ing said: Chief act, second, “These of said sections third and having already (the fifth been fourth declared void court), void, because, passing are therefore them, judicial powers, exercised of the third article of the constitution. violation security, pends greatly harmony government, well as the de- department thereof, each conform- powers ing properly itself exercise those assigned constitution; invasions, to it there- fore, appropriately belong powers that either departments, promptly should be met of the other at lest, by being repeated, they might threshold, seem acquire plausibility precedent. and force cases, one, prepared to such I am stand the the spear breach, ‘bring stop forth and ” way/ v. Donovan. dealing with opinion exhaustive very able A in Lawson be found power question 342). It was Rep. (12 Am. Jeffries, Miss. said: there trial, may grant new body legislative “If a suspend judgment, continuance, annul order a entered, and otherwise judgment to be trial, a interfere direct the independence the discretion with an flow from that would judiciary. The evils apparent to be too legislative power are assertion undertaken.” enumerated, here and need not be *7 principle persuaded that the upon we
But by People v. in this court question foreclosed Mater, Mich. In that case this court De La 167. constitutionality question the it the had before This section 53, 1919. Act No. Pub. Acts section upon magistrate to a search warrant the issue directed containing filing him an affidavit averments with that the section in the section. We held enumerated magistrate power to deprived terms the the its cause, judicial probable power, held determine there, legislature Here, as the section invalid. they the action shall take and dictated to the courts has they they may take, only order shall action only they may á make.- This is make and order legisla- power by usurpation judicial clear zealously guarded the other has de- ture. This court government partments of from encroach- the State zealously powers, and as on their we must ments guard judicial department from encroachments upon powers. provision The under consideration its fall, must if the division is such encroachment and sus- powers provided is to be for in the Constitution duty provisions of an act tained. clear. If Our law, the fundamental collide with legislative supreme and the fundamental law is nullity. be declared a must The provision the act is workable. But without this Michigan Reports. past, courts, to exercise their continue as refusing granting applications or discretion fixing and conditions continuances and in terms for say granted. they We will be can not passed had that the not have the act would provision. pro- this hold it not We this contained invalid, balance and the of the act valid as vision urged. against objections here decree should be vacated and case remanded proceedings further be taken not in- opinion. No costs consistent with this should allowed. JJ., J. Wiest, Fellows,
Bird and concurred with agree cannot with Mr. Justice Sharpe, I J. places language on construction he Fellows 2 of of section the act. The entire section reads: kept, exists, "Whenever nuisance is or maintained act, attorney general defined in of the State Michigan, attorney of of the prosecuting citizen county may chancery maintain an action in Michigan, upon the name of the State of the relation attorney general, of such prosecuting attorney or enjoin perpetually citizen nuisance, person said persons conducting maintaining or owner or same, *8 the and agents building place or where said exists, nuisance the vehicles liquors mentioned in section one of this act are trans- ported writing days’ into about State. Four the notice in given shall be the defendant of hearing the of application, the the and if then instance, continued at his prayed granted writ as shall be as a matter of injunction course. When an granted, has been it shall binding throughout on the be defendant the in which it circuit was issued.” sentence perfectly plain first is easily under- brought The action to stood. is be filing the aof complaint of chancery. bill in There is no shortening for the pleading. time for Unless other- v. Donovan. hearing proceed provided, the suit will final wise to provided by in manner the statute rules days’ provides court. The second sentence for “Four hearing writing” to notice in “of defendant application.” Application for what? That meaning word, it is of this in the in which sense used, clear, apparent. it as To construe hearing applying granted the relief to be on final absurdity hardship would lead to an and result such injustice presumed to a defendant be as cannot construction, to have been intended. such a Under charge prepare defendant must himself to meet a which, may of law established, violation if result closing building property his and the sale therein, days contained four of which notice given reading has been him. A careful of the second sentence this section confirms this It conclusion. provides days’ that after the four notice been has given, hearing if the be continued at the instance defendant, prayed “the writ shall be a matter of course.” If order or deeree to be nothing continue, then one, made be a final there is hearing is at an end. temporary injunction In all cases pro- asked for special when the bill filed without being my vision opinion, only made therefor. reasonable placed upon construction which can be language say “application” used tois refers to one for a temporary injunction, and the writ issued, being event a continuance asked by defendant, pursuant providing an order there- justified for. I think this construction view liberal rule which is con- followed courts when struing such statutes. This rule was. considered Attorney Railway, Mr. Justice General Brooke 210 Mich. at wherein authorities reviewed length. quote (page 257): I therefrom
228 —Mich.—34.
Reports.
Michigan
228
“As was said
Justice
Commonwealth
Chief
Shaw
370;
Kimball,
(Mass.) 366,
24 Pick.
v
.
“
precise
clear,
are not
and
such construction
‘When
words
adopted
appear most
and
suited
will be
as shall
reasonable
best
accomplish
objects
statute;
any particular
where
and
consequence,
would lead to an
it will
construction
absurd
exception
qualification
presumed
that
was intended
some
legislature
to avoid such conclusion.’
pronounce
than
—and rather
statute unconsti-
duty
void it
of the court to—
tutional and
legislature,
the evident
intent of
from
‘draw inferences
whole, supplying
gathered
law taken as a
from the
technical
obviously
expression and
unintentional mistakes
inaccuracies
by implication,
necessity making
from the
omissions
them
and
specific things
operative
as to
effectual
and
are included
comprehensive
purposes
law;
terms and
and
in the broad
implications
part
and
are as much a
these inferences
distinctly expressed
therein.’
what
State v.
law as
Polk
Com’rs,
(92
216).”
County
Minn.
N.
W.
construed,
the law
workable,
thus
As
and no
injustice
will be done.
apparent
may,
wishes, provide
speedy
for a
hearing
if
more
it so
on
give precedence
cases,
merits or
to such
done
matters.
tax
question of the exercise
No
presented.
then be
judicial power can
ap-
On the
temporary injunction,
plication for a
it must be made
complained
the violation
appear that
constitutes
this fact
the trial
Of
court
nuisance.
must be
allegations
the sworn
satisfied
bill
thereto.
attached
The mere fact
affidavits
for a
asks
continuance does not in
defendant
itself
plaintiff to the order
temporary
for a
entitle
in-
satisfy
He must
the court of the
junction.
truth
up
bill,
matters set
these
must be
justify
as,
proven, if
decree.
The use
such
is not
the word “shall”
unusual
statutes.
act,
Mugler
consideration in
The Kansas
under
Kansas,
273),
(8 Sup.
the commencement of action is not to be construed as dispensing proof preliminary is neces- with such sary injunction to pending authorize an the suit. The injunction court is is simply not to one issue an because asked, charge or because that a common is made nuisance is in maintained violation of law. The give liberty statute leaves the court at effect principle injunction that an not be nuisance, satisfactory restrain a except clear and evidence that one fact exists. Here the ascer- was, place, kept tained not whether a and maintained purposes statute, was, per se, forbidden being conclusively a nuisance —that fact determined question place the statute itself —but whether kept was so and maintained. proof upon point sufficient, “If that full or injunction, postpone of a court can an action refuse jury until the State first obtains verdict her favor.” In view of the fact that the defendant was forced to a trial at notice, persuaded the time I fixed am be set decree should aside and the cause re- hearing upon merits, manded for a which shall practice provided follow the therefor suits chancery plaintiff may in this State. renew his application injunction, pending temporary for a hearing, necessary if he deem it to do so. No costs of this court bewill allowed. J.,
Clark, McDonald, Moore, Steere, C. JJ., J. Sharpe, with concurred