People v. E. L. Rice & Co. , 33 Mich. App. 699 ( 1971 )

33 Mich. App. 699 (1971) 190 N.W.2d 309

PEOPLE
v.
E.L. RICE & COMPANY

Docket No. 7471.

Michigan Court of Appeals.

Decided May 21, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.

Marston & Marston, for defendant.

Before: LESINSKI, C.J., and LEVIN and O'HARA,^[*] JJ.

LEVIN, J.

The people appeal from an order dismissing the complaint filed against the defendant, E.L. Rice & Co. The complaint charges the defendant with committing the misdemeanor of selling "a watch whose case or movement, serial numbers or other distinguishing numbers or identification marks had been erased, defaced, removed, altered or covered, without having affixed thereto a tag with the words `second hand' legibly written or printed thereon", in violation of MCLA §§ 445.551-445.555 (Stat Ann 1964 Rev §§ 19.734-19.738).

The trial judge ruled on three separate grounds that the act under which the defendant was charged was unconstitutional:

(1) The act violates Const 1963, art 4, § 24, in that the object of the act was not expressed in its title.

(2) The act is vague and indefinite in that it does not identify the trade, persons, or business that come within the act.

(3) The act is arbitrary and capricious in that there is no shown need for this type of police power regulation.

We take a different view of the act and reinstate the complaint and remand for trial.

The title of the act provides that it is "an act to regulate the sale of second-hand watches; and to prescribe penalties for the violation of the provisions of this act." PA 1937, No 200. The term "second-hand watch" is defined in the act to mean a watch which has previously been sold to a consumer, and, additionally, "any watch whose case or movement, serial numbers or other distinguishing numbers or identification marks have been erased, defaced, removed, altered or covered." MCLA § 445.551 (Stat Ann 1964 Rev § 19.734).

The defendant contends that the additional definition is beyond the scope of the title of the act because a watch from which serial numbers have been removed is not a second-hand watch. We are, however, persuaded that the Legislature could reasonably define as "second-hand" a watch so altered from its condition when newly manufactured. Having reached that conclusion we must uphold the constitutionality of the act. Manifestly the one-object-expressed-in-its-title clause does not require that whenever a term used in the title of an act is defined in the body of the act that the definition be repeated in the title. The title satisfies the constitutional requirement as long as the definition in the body of the act of a term used in the title is reasonably related to everyday usage of the term so that the purposes sought to be achieved by requiring the object of an act to be expressed in its title are not subverted. Compare Whitney Realty Co. v. Secretary of State (1924), 228 Mich. 96.

By its terms the act applies to "any person, or agent or employe thereof" who sells a second-hand watch or who advertises second-hand watches for sale. MCLA §§ 445.552, 445.554 (Stat Ann 1964 Rev §§ 19.735, 19.737). It is apparent from the structure of the act^[1] that it does not apply to casual sales of watches by persons not engaged in business. It applies only to persons engaged in the business of selling watches (new or used) although the sale of watches need not be the sole business conducted by them.

A citizen who read the act would understand that it applies, at least, to persons so engaged in business. The act does not, by loose and ill-defined definition of the conduct proscribed, confer an unstructured discretion to convict or acquit on courts or juries. First Amendment freedoms are not involved. The act is not void for overbreadth, vagueness, or indefiniteness.

Nor could we properly substitute our judgment for that of the Legislature as to the need for legislation of this kind designed to protect the public from deception and fraud. See Jasnowski v. Judge of Recorder's Court of the City of Detroit (1916), 192 Mich. 139, 142.

We do not reach the question adverted to during oral argument, but not briefed, of whether the people must prove that a person charged with selling or advertising a second-hand watch in violation of the act knew that it was "second-hand". See Morissette v. United States (1952), 342 U.S. 246, 252 et seq. (72 S. Ct. 240, 244 et seq.; 96 L. Ed. 288, 294 et seq.).

Reversed and remanded for trial.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] The act provides: "the aforesaid record * * * to be open for inspection during all business hours by the prosecuting attorney of the county in which such person is engaged in business". MCLA § 445.551(1) [Stat Ann 1964 Rev § 19.734(1)].

"A duplicate of the aforesaid invoice shall be kept on file * * * and shall be open to inspection during all business hours by the prosecuting attorney of the county in which the vendor is engaged in business." MCLA § 445.553 (Stat Ann 1964 Rev § 19.736).