People v. Harper

152 N.W.2d 645, 379 Mich. 440, 1967 Mich. LEXIS 92

• Court: Michigan Supreme Court
• Decided: October 2, 1967
• Docket: Calendar 14, Docket 51,338
• Status: Published

Opinions

Brennan, J.

(for affirmance). The defendant was tried and convicted of selling narcotic drugs without a license. He was also convicted upon a second count of possession of narcotics without a license, contrary to the statute.¹ Defendant was sentenced to terms of 20 to 30 years and 8 to 10 years on these counts. Defendant challenges his conviction thereunder on the ground that the statutes under which he was convicted are unconstitutional in that they deny him equal protection of the laws. Defendant’s claim is that if he were a physician, dentist, or pharmacist licensed to sell and dispense narcotics, he would have been charged under a different statute, conviction under which would have carried a maximum sentence of 10 years and a maximum fine of $10,000.²

Pointing up the argument which defendant makes, the following hypothetical situation is described in defendant’s brief:

“To carry this point a step further, let us assume that there are two brothers who reside in Flint, Michigan; one is ‘duly licensed’ to lawfully sell, manufacture, dispense, administer, et cetera, narcotic drugs by virtue of being a registered pharmacist.' However, he does not own or operate a business. The other brother (appellant), is a ‘person not having a license’ to lawfully use, possess, sell, dispense, administer, et cetera, narcotic drugs.

“Now, these two brothers decide to pool their resources and make an unlawful purchase of a kilogram (2.3 [2.2?] pounds) of heroin. After making their purchase, each takes his share and begins ‘dealing’. After a short time, both are arrested and charged with having made an unlawful sale of heroin. The ‘duly licensed’ brother sold two ounces of heroin to a young college student while the brother ‘not having a license’ sold two small capsules of heroin to an addict who has been addicted for many years. Thus, both made an unlawful, illegitimate, illegal, or illicit sale of heroin. At this point, however, the similarity ends. The ‘duly licensed’ brother was charged with, convicted of, and sentenced for one offense, viz., unlawful sale of a narcotic drug, whereas the brother ‘not having a license’ is charged with, convicted of, and sentenced for two offenses, viz., unlawful sale of a narcotic drug and unlawful possession of a narcotic drug, the latter being ‘deemed to be included in every offense’ of unlawful sale by ‘any person not having a license.’ Obviously, since there can be no ‘license’ to sell heroin (or unlawfully do any act for that matter), both have committed the same offense or offenses. But, based solely upon the possession or lack of a ‘license’ to lawfully sell other narcotic drugs, they are statutorily treated differently. The ‘duly licensed’ brother cannot possibly receive more than 10 years imprisonment for his offense whereas the brother ‘not having a license’ mandatorily receives a term of not less than 20 years imprisonment for the unlawful sale as well as a concurrent sentence of not more than 10 years imprisonment for the unlawful possession offense ‘deemed to be included in every offense’ of unlawful sale, et cetera, by ‘any person not having a license under the provisions of Act No 343 of the Public Acts of 1937, as amended.’

“Therefore, the basic question arises: Does this statutorily prescribed difference in provisions and penalties deny appellant, a ‘person not having a license under the provisions of Act No 343 of the Public Acts of 1937, as amended,’ equal protection of the laws in violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States'?”

The argument is ingenious, but, it is based upon a false assumption. It erroneously assumes that a registered pharmacist could not be charged with unlawful sale and possession of heroin under PA 1952, No 266. The fact is otherwise. A registered pharmacist who sells heroin could be charged under PA 1952, No 266, with unlawful sale and possession of a narcotic drug. The statute in question reads as follows:

“Sec. 2. Any person not having a license under the provisions of Act No. 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.”

The defendant would have us read the word license as used in the foregoing statute to mean the piece of paper signed by the State director of drugs and drugstores. The defendant would have us believe that the statute intends to exempt from its operation all those persons to whom such a piece of paper has been issued. Taking such a view, the statute might well be regarded as unconstitutional since the mere possession of a piece of paper can hardly he regarded as a kind of classification upon which equal protection of the laws can he predicated.'

It is the function of an appellate court, however, so to construe statutory language as to uphold the' constitutionality of acts of the legislature, if possible. And certainly we should not engage in1 strained or myopic interpretations of statutory language, in order to find legislative enactments' to be unconstitutional.

A license is not a piece of paper. It may be evi-, denced by a piece of paper, but the piece of paper is not the license. A license is a permission granted' by proper authority to do an act. There must be power in the licensing authority to permit the act to be done. There must be an act or acts with reference to which the license is given. PA 1952’, No 266, exempts from its terms those persons and only' those persons who are licensed to do what the act otherwise proscribes. This is the only logical meaning or interpretation of the act. Thus understood, and applied to the hypothetical case suggested by the defendant, the statute means “any person not having a license to sell heroin, who shall sell heroin, shall be deemed guilty of a felony, et cetera.” Thus understood, both heroin-selling brothers in the defendant’s hypothetical case would be guilty of and charged with the same crime.

It should be borne in mind that since the amendment by PA 1952, No 132, section 20 of PA 1937, No 343, does not prescribe any penalty for a person who sells narcotics without a license. Section\3- of the licensing act says that no person shall sell narcotics without first obtaining a license so to. do from the State director of drugs and drugstores.Section 20 of the act now limits its application to persons duly licensed under the preceding provi-, sions of the act. The act no longer contains within its four corners any penalty provision for persons’ wbo sell narcotics without a license. Section 20 of the licensing act can only apply to those violations of the licensing act which, by definition, can be committed by a licensed person. Section 20 can never be read to punish a person for doing something which he is not licensed to do. It can only be read as the penalty mandated for a licensed person failing to do what a licensed person is required to do, or doing what a licensed person is prohibited from doing. The penalties of section 20 of the licensing act are in addition to and separate from the penalties of section 2 of PA 1952, No 266. It is possible that the same act may constitute a violation of both statutes. To put a parallel ease, if a druggist prescribes and administers a drug for one of his customers, he may be guilty not only of practicing medicine without a license but also of selling a drug without a prescription. In the hypothetical case suggested by the defendant, the drug sold is heroin. A license to sell heroin cannot be obtained from the State of Michigan because Federal laws have pre-empted the field under the commerce clause of the United States Constitution taking away State authority to do so. The point is made well in the memorandum brief filed by the people in this cause. ⁴ A druggist who sells heroin would be guilty of violating both of the statutes involved in this case. He would have sold a narcotic drug without a license since the State of Michigan had given him no permission to sell heroin. In addition to that, he would have dispensed a narcotic drug without a prescription, which as a licensed person he is prohibited from doing. But even if a druggist were to sell heroin, on prescription of a physician, he would be guilty of violation of PA 1952, No 266, since his license to sell narcotic drugs cannot be broader than the power of the licensing authority to grant permission. And since the State of Michigan has no authority to grant him permission to sell heroin, every such sale must be the act of an unlicensed person. Defendant’s constitutional argument is without merit and his conviction should be sustained.

Dethmers, C. J. and Black, J., concurred with Brennan, J.

1 PA 1952, No 266, §§ 2, 3 (CLS 1961, §§ 335.152, 335.153 [Stat Ann 1957 Rev §§ 18.1122, 18.1123]).

2 PA 1937, No 343, as amended (CL 1948, § 335.51 et seq., as amended [Stat Ann 1957 Rev and 1965 Cum Supp § 18.1071 et seq.]).

4 “Appellee submits, however, that the first premise of appellant does not necessarily follow, and further submits that there is no classification. There is no legitimate traffic in heroin, the substance herein involved. Under 18 USC § 1402, all heroin must be surrendered to the secretary of the treasury:

“ ‘Any heroin lawfully possessed prior to the effective date of this act shall be surrendered to the secretary of the treasury, or his designated representative, within 120 days after the effective date of the act, and each person making such surrender shall be fairly and justly compensated therefor. The secretary of the treasury, or his designated representative, shall formulate regulations for such procedure. All quantities of heroin not surrendered in accordance with this section and the regulations promulgated thereunder by the secretary of the treasury, or his designated representative, shall by him be declared contraband, seized, and forfeited to the United States without compensation.’ * * *

“Under 21 USC § 173, no opium may be brought into the United States for the purpose of manufacturing heroin:

“ ‘It is unlawful to import or bring any nareotie drug into the United States or any territory under its control or jurisdiction; except that such amounts of crude opium and coca leaves as the commissioner of nareoties finds to be neeessary to provide for medical and legitimate uses only may be imported and brought into the United States or such territory under such regulations as the commissioner of nareoties shall prescribe, but no crude opium may be imported or brought in for the purpose of manufacturing heroin.’

* * *

“It is from a reading of the above Federal citations that it can clearly be seen that heroin is withdrawn from general use and that there is no legitimate traffic in heroin.

“Since the enactment of the foregoing Federal laws, Michigan cannot thereafter legitimatize the sale of heroin. Federal laws have pre-empted the field, taking away State authority so to do, under the commerce elause of the United States Constitution. Any State law allowing the general sale of heroin would conflict with the Federal laws and therefore would be invalid. Leisy v. Hardin (1890), 135 US 100 (10 S Ct 681, 34 L ed 128).

“A license to sell heroin cannot be obtained from the State of Michigan. In effect then, the sale of heroin is prohibited and not just regulated.

“It is upon the foregoing prohibition that appellee submits that any person selling heroin in Michigan would be an unlicensed person. Going back one step further, PA 1952, No 266 (CLS 1961, § 335.151 et seq. [Stat Ann 1957 Rev § 18.1121 et seq.]) is in part entitled, ‘An act to suppress the illegitimate use, * * * sale * * * in narcotic drugs.’

“Section 2 of Aet No 266 (CLS 1961, § 335.152 [Stat Ann 1957 Rev § 18.1122]) might be read as follows:

“ ‘Any person not having a license * * * .(so to do) * * * who shall sell * * * any narcotic drug shall be deemed guilty of a felony.’

“If one refers baek to PA 1937, No 343, as amended (CL 1948, § 335.51 et seq., as amended [Stat Ann 1957 Rev and Stat Ann 1965 Cum Supp § 18.1071 et seq.]), which provides for licensing, it is clear that provision is made only for the legitimate use of nareoties: sections 6, 7 (CLS 1961, §§ 335.56, 335.57 [Stat Ann 1957 Rev §§ 18.1076, 18.1077]). Section 3 explicitly requires authorization to sell narcotics (CLS 1961, § 335.53 [Stat Ann 1957 Rev § 18.1073]). Section 3 provides that specific licensing must be granted:

“ ‘No person shall * * * sell * * * any narcotic drugs without having first obtained a license so to do. * * *’

“In summarizing, since there can be no license to sell heroin, and Michigan has not issued a license to sell heroin, any person selling heroin in Michigan is an unlicensed person. Conversely, no one can legitimately be licensed to sell heroin so as to fall within the exclusion of PA 1952, No 266 and avoid prosecution thereunder.”