People v. Samuel Lee , 66 Mich. App. 5 ( 1975 )

66 Mich. App. 5 (1975) 238 N.W.2d 397

PEOPLE
v.
SAMUEL LEE
PEOPLE
v.
BILLIE LEE

Docket No. 21116.

Michigan Court of Appeals.

Decided December 3, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and James F. Carr, Assistant Prosecuting Attorney, for the people.

Leitson, Dean, Dean, Segar & Hart, P.C., for defendants.

Before: McGREGOR, P.J., and D.E. HOLBROOK, JR. and M.J. KELLY, JJ.

M.J. KELLY, J.

A complaint and warrant were issued against defendants on August 24, 1973, charging them with acting in the capacity of a residential builder or maintenance and alteration contractor without having a license as required by MCLA 338.1501, et seq.; MSA 18.86(101), et seq. The complaint and warrant were quashed in district court. The prosecutor appealed, and the ruling was upheld in circuit court. Plaintiff's application for leave to appeal was denied by this Court. Subsequently the Supreme Court ordered this case remanded to the Court of Appeals for consideration as on leave granted. 393 Mich 819 (1975).

The defendants were involved in laying asphalt in the repair of a driveway of a home. The question for us to determine is whether one engaged in laying asphalt on residential property is a residential maintenance and alteration contractor within the meaning of the statute.

MCLA 338.1501; MSA 18.86(101) provides:

"In order to safeguard and protect home owners and persons undertaking to become home owners, it shall be unlawful * * * for any person to engage in the business or to act in the capacity of a residential builder or a residential maintenance and alteration contractor and/or salesman in this state without having a license therefor, unless such person is particularly exempted as provided in this act."

MCLA 338.1502(c); MSA 18.86(102)(c) defines "residential maintenance and alteration contractor" as:

"* * * any person who, for a fixed sum, price, fee, percentage, valuable consideration or other compensation, other than wages, undertakes with another for the repair, alteration or any addition to, subtraction from, improvement of, movement of, wrecking of or demolition of a residential structure or combination of residential and commercial structure, or building of a garage, or laying of concrete on residential property, except for his own use and occupancy."

In order to come within the terms of the statute, the laying of asphalt must constitute either the repair, alteration, addition to or improvement of a residential structure, or the laying of concrete on residential property.

At the time the complaint and warrant were issued in this cause, the statute did not contain a definition of a residential structure.^[1] When the Legislature employs a common term without further definition, the court looks to the ordinary sense of the word. People v Smith, 246 Mich 393; 224 NW 402 (1929).

In C K Eddy & Sons v Tierney, 276 Mich 333, 341; 267 NW 852 (1936), the Court adopted the following definition of structure:

"In the broadest sense a structure is any production or piece of work artificially built up or composed of parts joined together in some definite manner; any construction."

The word, structure, however, is modified in the statute by the adjective "residential". Residential is defined as used, serving or designed as a residence or for occupation by residents. Webster's Third New International Dictionary, p 1931. Clearly a driveway is not a residential structure as so defined.

In addition to residential structures, the statute makes provision for the licensing of those who build a garage or lay concrete. The latter two categories evidence a legislative intent that buildings not used for residence and driveways not be included in the term "residential structure".

Next we consider whether the laying of concrete includes the laying of asphalt within the statute.

In Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971), the court discussed the applicable rule of statutory construction.

"Michigan has recognized the principal of expressio unius est exclusio alterious — express mention in a statute of one thing implies the exclusion of other similar things. Dave's Place Inc v Liquor Control Commission, 277 Mich 551; 269 NW 594, (1936), Sebewaing Industries, Inc v Sebewaing, 337 Mich 530; 60 NW2d 444 (1953)."

In applying that rule to the case at bar, we conclude that the Legislature, by specifying that the laying of concrete be included within the statute, expressly excluded the laying of asphalt.

We so conclude despite the decision to the contrary found in Artman v College Heights Mobile Park, 20 Mich App 193; 173 NW2d 833 (1969). The remedial portion of the residential builder's act was at issue in Artman, supra. Applying the rule of liberal construction, another panel of this Court found that a contractor, laying asphalt on a proposed trailer park, who was not licensed under the residential builder's act, was under a disability to sue. The court stated that, although plaintiff was laying asphalt and not concrete, it was obvious that "asphalt may be used instead of, or in addition to, concrete. The rights of consumers will not be allowed to revolve around the mere fortuitous use of the word `asphalt' as opposed to `concrete'." Artman, supra, 20 Mich App at 197. The Artman Court, in effect, corrected a legislative oversight. Since we cannot distinguish the cases other than to observe that Artman is a civil case and this is a criminal case, we respectfully decline to follow the Artman reasoning.

We hold that prior to the August 1, 1974 amendment, one who was engaged in the laying of asphalt was not put on notice by MCLA 338.1502; MSA 18.86(102), that he was a residential maintenance and alteration contractor for the purpose of the act. He could not therefore be required to go to MCLA 338.1504(3); MSA 18.86(104)(3), and apply for a license to avoid criminal prosecution. Rather, as stated in People v Kirstein, 6 Mich App 107, 114; 148 NW2d 539 (1967), quoting People v Goulding, 275 Mich 353, 359; 266 NW 378 (1936):

"It is a well-settled rule of law that no one can be punished for doing an act unless it clearly appears the act sought to be punished comes clearly within both the spirit and letter of the law prohibiting it.

* * *

"Defendant ought not to be convicted unless he is clearly and unequivocally within the language of a statute which by its terms covers his case."

Affirmed.

Judge D.E. HOLBROOK, JR. concurred in result only.

NOTES

[1] MCLA 338.1502(f); MSA 18.86(102)(f), was added by amendment effective August 1, 1974, and states:

"`Residential structure' includes, but is not limited to, premises used or intended to be used for residence purposes and related facilities appurtenant thereto, used or intended to be used, as an adjunct of residential occupancy."