People v. Richmond

26 N.W. 770, 59 Mich. 570, 1886 Mich. LEXIS 1053

• Court: Michigan Supreme Court
• Decided: February 3, 1886
• Status: Published

Opinion

Campbell, C. J.

Defendant was convicted of keeping his saloon open between nine and ten o’clock at night, on the third of February, .1885. He lived in the village of Hartford. The complaint followed the statute, and made no reference to the existence or non-existence of any village ordinance. The principal contest arose concerning the bearing of the proviso, in section 2274 of Howell’s Statutes, “ that in all cities and incorporated villages the common council may, by ordinance, allow the saloons, and other places where said liquors shall be sold, to remain open not later than ten o’clock on any week-day night.”

Defendant claimed that the complaint was bad for not negativing the existence of any such ordinance in Hartford. He further claimed that the proviso was bad as giving cities and villages the power to dispense with general laws, and that its invalidity affected the whole law. .He offered to show, further, that application was made to several members of the Hartford council for such a permission, and that they promised to lay it before the council and inform him, and that he was thereafter informed by the village marshal that the board had authorized him to keep open an hour longer.

It is hardly necessary to say that the invalidity of a proviso does not destroy a law, unless going to show that the law would not have been passed without it. No such idea is suggested by this proviso; and inasmuch as this proviso is special, and calls for specific municipal action to authorize a dispensation, we do not think it necessary in the complaint to negative what would be a substantive matter of defense, in the nature of a license by local authority, and not under general regulation.

As defendant, like all other citizens, is bound to inform himself of the conditions on which villages can act, he could not rely on any individual permission, even if it had been granted. Such permission could only be by ordinance, applicable to all persons keeping saloons.

Complaint is also made that the court had no right to direct the jury to find a verdict of guilty, without argument to the jury-

The prosecution had shown by testimony not disputed that defendant’s saloon was open after nine o’clock. Defendant himself testified that before the day in question, he changed his hours so as to keep open until ten o’clock. After ruling on some propositions of defendant’s counsel, and holding them inadmissible as legal propositions, Mr. Tabor, defendant’s counsel, remarked, “ Of course that ends the case.” The court thereupon directed a verdict of guilty.

As defendant himself had sworn to his own guilt, and counsel had made the remark referred to, the court was right in so holding. Where all the facts are admitted there is nothing for the jury to pass upon.

The judgment must be affirmed.

The other Justices concurred.