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Fellows, J. I do not agree with Mr. Justice Bird in the result reached in this case. The record satisfies me, as it did the jury, that the shipment of these goods to Parma was camouflage, pure and simple,.so transparent as to deceive no one when the actual facts were developed. The jury found, and they were justified in finding, that these eight barrels and the one box of whisky were shipped by Morand Brothers at Chicago to defendant at Battle Creek, via Parma, with a fictitious consignee, and a fictitious point of consignment.
Defendant was not transporting liquor upon his own
*59 person or in his own conveyance into a local option county, but was completing its transportation from Chicago to Battle Creek by means of a dray line employed by him for that purpose. The drayman, who describes himself, and properly so, as a public carrier, was in the business of transporting merchandise by auto truck, at the rate of fifty cents per mile one way, and was, in the contemplation of this act, as much engaged in the business of transportation as was the Michigan Central Railroad Company which brought this liquor part way on its journey. In Lawson v. Judge of Recorder’s Court, 175 Mich. 375, this court, speaking through Mr. Justice KUHN, said:“Persons who are engaged in the business of dray-, men or truckmen for transportation of goods and merchandise within a city are held to be common carriers. A common carrier has been defined as ‘one who undertakes for hire or reward to transport the goods of such as choose to employ him from place to place.’ 6 Cye. p. 365. The business of a public moving van company clearly comes within this definition and there can be no question that they carry on their business subject to the rules governing common carriers. The business being public in character, it has been repeatedly held by- the courts that it is subject to reasonable public regulations.”
In the case of People v. Bola, 197 Mich. 370, cited by Mr. Justice BIRD, it was stated by Mr. Justice Brooke:
“The only question involved is whether a resident in a so-called local option county may purchase liquor in a county where such purchase and sale is lawful and transport the sanie, either upon his person or in his own conveyance, into a local option county for his own personal use, without having the packages labeled in-accordance with the section above quoted.”
In that case defendant had purchased the liquor in a “wet” county and brought it to his home in his own
*60 conveyance, so that there was neither consignor nor consignee. This is made clear by what was further said by Justice Brooke:“The legality of the sale of the liquor in Saginaw county to respondent is not involved. He became its owner in a "wet’ county. Thereafter he was neither consignor nor consignee of the same, and the section in question has no application to him in relation thereto.”
■ The instant case, however, is radically different. Here we have a consignor (Morand Brothers), a consignee (the defendant, not the fictitious A. J. Wise who did not exist), a common carrier (the auto truck dray line), which was, by direction of defendant and in his employ, transporting liquor through a dry county with a false label upon it, completing the last lap of its journey from Chicago to Battle Creek via Parma. Under such circumstances the “Pray act” was being violated, both in letter and spirit, and it does not require judicial legislation to say so. If defendant had employed the interurban line between Parma and Battle Creek to complete the transportation of this liquor with its false label, from Chicago to Battle Creek, no one would seriously contend that the “Pray act” had not been violated. What difference does it make that he selected another common carrier, one using the public highway instead of steel rails, using gasoline instead of steam for its motive power? None whatever. This legislation must not be rendered nugatory by too narrow a construction. As this presents the only meritorious question in the case I think the conviction should be affirmed.
Moore, Steere, and Stone, JJ., concurred with Fellows, J.
Document Info
Docket Number: Docket No. 195
Judges: Bird, Brooke, Kuhn, Moore, Ostrander, Steere, Stone
Filed Date: 3/28/1918
Precedential Status: Precedential
Modified Date: 11/10/2024