*1 Dept, R. Mahon Co. C. oe Revenue. 667 light In the of our decision it is herein, obvious Ruling that the “Amendment to Contractors’ No. adopted by- 21” defendant December 1941 10, (which, length, reproduce), its because of we do not governing conflicts with the statutes and is invalid. may A decree be entered in this court in accord- question public importance ance herewith. A being involved, costs are no awarded. J.,
Boyles, Chandler,, C. Starr, Wiest, JJ., concurred. Bushnell, Butzel, Sharpe, PEOPLE, ex rel. WAYNE PROSECUTING ATTORNEY, v. TATE. Gaming—Abatement. 1. Nuisance — trial Decree of suit to abate nuisance and confiscate operations, whereby impounded ear was five months owner loaning restrained from party it'to using seized, it when it was (2 Oomp. affirmed 1929, Laws et seq.). 9093 § op Gaming. Costs —Abatement 2. Nuisance — No costs are allowed suit to abate nuisance and confiscate in gambling operations car used (2 Oomp. 1929, Laws seq.). ef Boyles, J., Starr, J., dissenting. O. Appeal Wayne; (Vincent M.), Brennan J. (Docket Submitted June 1943. No. 93, Calendar 42,427.) Rehearing Decided October 1943. denied November 29,1943. by people Michigan,
Bill on re- State Wayne Dowling, County lation William Prose- E. *2 Attorney, cuting against R. Edward Tate to abate and to sell an dismissed. automobile. Bill appeals. Plaintiff Affirmed. Attorney J. Bushton, General,
Herbert Edmund Shepherd, Dowling, E. William E. Solicitor General, Prosecuting Attorney, Helper, and Harold Assist- Prosecuting Attorney, plaintiff. ant Liggett, E. Oscar for defendant. appeal by people J. This is an the
Bushnell,, dismissing from a decree a bill of filed against Edward defendant, R. under Act 1929, Tate, (2 Comp. 389, Pub. Acts Laws 9093 et §18.901 seq. seq.]). [Stat. Ann. In et their bill of complaint, people sought to confiscate a motor gambling, vehicle which in was used connection with People similar Elliott, to described v. (3 640). Rep. Mich. 264 L. R. A. Am. 403,16 St. people produced police The officer who, while testifying occupant as to the arrest of the of the car finding gambling paraphernalia and the therein, interrupted by prose- was cutor if the court who asked the any proof guilty knowledge
he on the part having appeared of defendant, the car was being not at the time owner. When informed that such neither available nor required, the court indicated that it was not neces- the, sary proceed prosecutor, to case. The how- upon right present testimony. insisted ever, his to testimony, judge After the close .of trial part: said deprived
“In this case, this defendant has been September of the use his car from 19, 1942, to rel. Pros. ex People, punish- February It seems me 1943. 17, entirely enough. un- it would be I think ment improper now to order for this court reasonable proceeds turned over to the car and the the sale of the State of * * * Michigan. may im- at bar decree be entered case “In period pounding the defendant for the the car of February September at 17, 1943, 19, 1942, injunction may p. be issued also an andm., 12:06 against restraining him from here- the defendant loaning to Barber Thomas.” his car after appeal question presented principal The portion of Act No. Pub. Acts is whether that any provides for the forfeiture ve- which mandatory permissive. gambling is hicle used for Although Wayne court divided ex rel. *3 Attorney, Prosecuting Bitonti, ante, v. recent agree- involving case the same the court was in act, necessity that the statute obviates the ment holding knowledge. Notwithstanding our in the light in the Case, we must conclude, Bitonti People, Attorney General, Holschuh, ex rel. judge did not error Mich. that the trial commit judicial refusing exercising discretion and his a confiscation sale of the vehicle. to direct Boyles has Mr. written reversal Justice decreeing that use of defendant’s nuisance by in accord abated are automobile be its sale. We 'auto- defendant’s there was a nuisance use of that only judge differ circuit so held. We mobile; and the trial that this issue: Does the record show judge properly use of the the nuisance did abate ? automobile possible had ordered if the trial court
It is' pro- of the and confiscation- of the automobile sale might affirmed such a decree. have ceeds, follow that because trial court But does not a sale, decreed abatement means other than re-. judgment In the versible error was committed. impounding car of defendant’s of the trial court the supplemented by the court’s for several months, injunction preventing “from hereafter defendant loaning an Barber Thomas” constituted his the auto- effective abatement of the use of do- This not disclose that in so mobile. record does ing judge his discretion or did not the trial abused dispose within the terms of the issue of abatement properly (when construed —see of the statute which Attorney Holschuh, 235 General, v. ex rel. 272) sale of an automobile Mich. does not command court, as in the instant case. Instead, when used reasonably may order if essential to abatement, good reason for sale of such vehicle. We find no disturbing portion judge’s trial decree use of the he abated the nuisance which in the case. instant affirmed, decree is but without costs.
The JJ., Bush- Wiest, North concurred with Sharpe, JJ., J: con- Bhtzel, nell, Chandler, curred result. in the dismissing bill of
Boyles, C. J. The decree reasoning an- aside. The should be set hearing, early for dis- nounced in the court, *4 missing court, the the was bill, then stated as follows: you any you Have Let me ask this:
“The Court: had case, Tate, that the defendant this guilty knowledge— Helper (Interrupting):
“Mr. No. engaged in the Thomas was “The Court:—that gambling business? reí. v. ex Pros. People, proof, Helper: No. I do have sneh not “Mr. * # * require not it. statute does
the I don’t think there is much use “The Court: respect point arguing all due to to which, me, ready prosecution, hold, am to nonsensical. I is the an automobile can that, before law, matter of as a showing, first, must be there some forfeited, be illegal purpose; actually second, for an used it was knowledge, guilty car some owner of the the that or being suspect to that it was had some reason improperly.” not was announced
It is true that the same reason hearing. The circuit the of the learned at conclusion hearing, judge, announced of the at the conclusion deprived had been defendant the fact that the five months was about of the of his “punishment enough.” decree en- Since the Wayne Prosecut- ex rel. tered, court, Attorney, ing the has held that ante, Bitonti, § (Act Comp. [2 Pub. Acts 389, 9, statute §18.909)]) (Stat. Ann. obviates Laws knowledge necessity proving guilty the the of part and that the automobile, of owner support allegation an to evidence failure plaintiff’s fatal case. that effect to the is evidently that the use defend- The court found nuisance within the ant’s constituted meaning provides: the decree because statute, complained in the bill of “That hereby is be and it abated.” abate the nuisance
However, the court declined to provides. by a sale as statute chancery necessary case, This is a it seems again point chancery that we hear de novo. out cases agree with Mr. Justice that the cannot Bushnell I mandatory per- issue is whether statute *5 missive. The bill of is filed to abate a by nuisance, declared so statute. Do the facts estab- a Nor a lish nuisance? is this matter as to whether the court below abused its as we discretion, under- .expression. practice stand the use of this Under our chancery in cases, we are review this record to determine whether it should be was a there nuisance and whether ap- in
abated, all with the accordance plicable light statute law. In of our decision in supra, the Bitonti Case, a review of the record in this a case, decree should be entered this declaring abating sale accordancé the statute.
In Case, the Bitonti on a statement of facts almost (with exception) identical one with the facts abating instant the decree case, of the lower court - ordering the nuisance and sale of the motor vehicle equally was affirmed an here divided unanimously agreed proof court. While we knowledge of the vehicle for purposes necessary, disagreed we on the issue as stated Mr. Justice Bushnell, who wrote prevailing opinion for as affirmance, follows, p. 120: agree “I position cannot with defendant’s ‘that proof single prohibited of a instance of a use was not justify finding sufficient to that the vehicle was a ” nuisance.’ On that issue Mr. alone, Justice Chandler wrote p. reversal, follows, 119: “Defendant single also claims that of a in- prohibited stance a justify use was not sufficient to finding the vehicle awas nuisance. With position, agree. we A nuisance involves the ex reí. Pros. v. *6 continuity, repetition and is not to be idea of single prohib- upon predicated proof of a isolated ited act.” In the Bitonti divided. that issue we were
On only single the use of vehicle Case, instance of ample proofs in the ease are more shown. The was had admitted Thomas bar. The defendant at He ear from him several times. was borrowed the answering he had heard talk whether evasive game, shop, in Thomas’ barber the numbers about anybody talk Mr. he had heard or whether gambling racket. When Thomas about this Thomas charged subsequently with violat- arrested and was ing police watching gambling had been law, up days, picking him him for three or four found places, he had.been seen mutuel tickets from various operating had automobile before and been same days, using purposes gambling three be- it for for police stop him at he was arrested. The saw fore places, days, using for three the same auto- various mobile claimed rented the car Mr. Tate ; he he police day, and admitted that whenever the at a$1 got rent a car from some on to that he would had for other that he been the business fellow; defendant had known some time. Thomas and the years together each other several and had lived for year as about a and a half. Tate was to how evasive many Thomas his ad- car, times he let take but any had his car time Thomas it was mitted permission. He testified: many “I he never Mr. Thomas how miles asked my long going car. I didn’t as as to drive care got go bought He in time for me to to work. he back pay gasoline have use it. He didn’t and he would my anything he had the use of car; to use me ’’ car. proof single This is considerable more than aof pur- gambling use defendant’s automobile for poses. It of a is continuous use. The issue on which we in the differed Bitonti Case is before us in the case at bar. We do not have here an in- single stance an automobile to trans- port gambling purposes, material used on one only, testimony. occasion and without other It testimony fair deduction from the defendant’s own that Thomas used the defendant’s automobile more continuously, permission. or less with his peculiar gambling to the nature of Due known game, the numbers the confiscation anof that form of should not con- *7 be precedent sidered a action similar in other cir- gambling cumstances. This form of carried on with of an automobile. The could not be success without reasonable the use “pickup” man for this form necessarily gambling goes place place of operate from to to policy slips the business. or The bet are gasoline written in the streets, stations, barber anywhere. shops, are written, After the tickets the “pickup goes place place, man” to collects the gambling tickets and takes them to the establish- They winning ment. are there the examined, num- pay-off bers are determined, the amount of the to a figured pay-off money winner is out, and the then pickup taken the man back to one the who wrote goes the and to ticket, thence the one who made Comp. §9093 (2 The the bet. statute Laws 1929, §18.901]) any [Stat. Ann. vehicle declares used for purpose the of to abe nuisance, and Act (2 Comp. Pub. 389, Acts 1925 12, Laws 1929, §9104 §18.912]), any provides [Stat. Ann. ve- may found to be hicle a nuisance be confiscated and practice borrowing, renting, using sold. The of day day, a different automobile from to the owner v. rel. ex Pros. purpose use, its is of claiming the of to be innocent effectively enforcement adopted hinder the gambling. rec against On this form law this circumstances under the and us, ord before fairly was use of nuisance case, a in accordance abated and should be established Attorney People, ex rel. The case of the statute. readily dis Mich. is Holschuh, 272, General, v. does not tinguishable situation, instant from the merely held that case, In that control. building in violat furniture and contents might prohibition ing sold, seized law be beyond uphold go the seizure refused to but building regard contents and sale of all of the unlawfully used or not. less of whether presented. question In the at bar, case Another testimony without ob- hearsay received was certain disregarded jection and later defendant, testimony inis The out the court. stricken separately. although State, In ex not taken record Attorney Robinson, 250 Mich. Mr. General, rel. writing the same court on for the Justice Wiest, 6) question (syllabus held:' proceedings Pub. Act No. under “Where, building apartment in. nuisance Acts abate 1925, clearly containing apartments, justice, may, Supreme in aid of Court established, *8 by people hearsay testimony offered consider although apartment, limiting to one nuisance use objection he unless defendant, stricken consequence and takes it excluded wants still particular building instead of having closed entire identified.” one so in the result reached to the
If we are to conform must be set dismissal Case, Bitonti the decree having more than a established This case aside. the automo- single prohibited use of instance I am in with tbe bile, accord conclusion reached supra, Case, Mr. Justice the Bitonti Bushnell follows:
“I feel that the conclusion reached Mr. Justice nullifying proper legis- has the of as stated in his effect Chandler opinion, lative enactment which, ‘is unambiguous.’ clear and reviewing “It should be remembered that arewe chancery hearing decree in and is a de novo.” entry The case should be reversed of decree that the nuisance be abated under the sale stat- proceedings ute, remanded for further in ac- cordance herewith. No awarded. costs concurred J., C. J.
Starr, Boyles, CHRONOWSKI v. PARK-SPROAT CORPORATION.
CLAIM OF PAULSON. Appeal Finding op Special- 1. and Error — Court —Record—Hotel ist —Commissions—Receivers. appeal On in proceeding by specialized nonresident who aas operation, management, leasing consultant liquidat- ing of hotels to recover for services rendered receiver of cor- porate owner, supported finding hotel record of trial authorized, warranted, claimant’s activities had been were materially benefited the estate value of the stock of corporation.