People v. Harper , 1 Mich. App. 480 ( 1966 )

1 Mich. App. 480 (1965) 136 N.W.2d 768

PEOPLE
v.
HARPER.

Docket No. 124.

Michigan Court of Appeals.

Decided September 20, 1965. Leave to appeal granted January 6, 1966.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Richard J. Ruhala, Assistant Prosecuting Attorney, for the people.

Johnny Harper, in propria persona, and John W. Thomas, for defendant.

Leave to appeal granted by Supreme Court January 6, 1966. See 377 Mich. 695.

QUINN, J.

Appellant was tried and convicted in the circuit court of Genesee county in January, 1960, on a two-count information charging him with violation of PA 1952, No 266, §§ 2 and 3 (CLS 1961, §§ 335.152 and 335.153 [Stat Ann 1957 Rev §§ 18.1122 and 18.1123]).^[1] He was sentenced to terms of 20-30 years and 8-10 years respectively. Contending his detention is illegal due to unconstitutionality of the statutes under which he was convicted, he asks this Court to issue a writ of habeas corpus.^[2] It has been stipulated that the alleged unconstitutionality is the sole issue before this Court.

The gist of appellant's argument to establish unconstitutionality is that because a licensed person who sells narcotics unlawfully is subject to a maximum penalty of 10 years (PA 1952, No 132 [CLS 1961, § 335.70 (Stat Ann 1957 Rev § 18.1090)]), and an unlicensed person who does the same thing is subject to a minimum sentence of 20 years and a maximum of life (section 335.152 supra), the latter is denied equal protection of the law as guaranteed by US Const, Am 14 and Const 1908, art 2, § 1.^[3] Appellant is not licensed. The precise question for decision is whether the classification "licensed" and "unlicensed" is reasonable. Appellee's contention that In re Wright (1960), 360 Mich. 455, controls is untenable; it did not deal with this classification problem.

The basic rule, stated in People v. Babcock (1955), 343 Mich. 671, 679:^[4]

"``In approaching the consideration of a legislative enactment with the purpose of passing upon its constitutionality, courts usually do and always should strive to sustain its validity, if that may be done without doing actual violence to the language used in the act. Every intendment favorable to a conclusion sustaining the law must be indulged in'",

and the specific rule with respect to standards of classification, as found in Gauthier v. Campbell, Wyant and Cannon Foundry Company (1960), 360 Mich. 510, 514:

"``The standards of classification are:

"``"1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary." Citing cases.'"

must control the approach to the question presented. The statutes here involved were enacted to control manufacture, possession, and distribution of narcotic drugs. In order to facilitate and regulate the legitimate trade in these products, certain people are licensed. (CL 1948, § 335.54 [Stat Ann 1957 Rev § 18.1074].) By licensing this group, the legislature places severe controls over their contact with narcotics. (CL 1948, §§ 335.55-335.57 [Stat Ann 1957 Rev §§ 18.1075-18.1077].) Every transaction that they make is governed by law and the records that they keep are subject to close scrutiny by the appropriate authorities. (CL 1948, § 335.66 [Stat Ann 1957 Rev § 18.1086].) The licensing act is aimed primarily at safeguarding and regulating legitimate trade of narcotics. The act under which defendant was convicted and sentenced is directed solely at suppressing illegal traffic in narcotics. The purpose of the two acts is entirely different, and it is a reasonable basis for the classifications "licensed" and "unlicensed".

The statutes involved are not unconstitutional. Writ denied.

J.H. GILLIS, P.J., concurred with QUINN, J.

T.G. KAVANAGH, J. (concurring).

I agree that the statutes here considered do not violate either the State or Federal Constitution, not because they establish reasonable classifications but because they don't classify at all.

CLS 1961, § 335.152 (Stat Ann 1957 Rev § 18.1122), and CLS 1961, § 335.153 (Stat Ann 1957 Rev § 18.1123) are written:

"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.

"Sec. 3. Any person not having a license as required 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 possess or have under his or her control any narcotic drug shall be deemed guilty of a felony, and upon conviction thereof, for the first offense shall be punished by imprisonment for not more than 10 years, and a fine of not more than $5,000.00. In the discretion of the court the sentence for any such imprisonment or fine may be suspended, or the person convicted may be placed on probation for a term of years within the limits for which a sentence of imprisonment may be given. Any person convicted of violating the provisions of this section who shall previously have been convicted of any violation of the laws of the United States or of Michigan relating to the possession, sale, manufacture, production, administering, dispensing or prescribing of any narcotic drugs shall be punished by imprisonment for not more than 20 years and a fine of not more than $5,000.00. Any person convicted of violating the provisions of this act who shall previously have been convicted 2 or more times of violating the laws of the United States or of Michigan relating to the possession, sale, manufacturer, production, administering, dispensing or prescribing of any narcotic drugs shall be punished by imprisonment for not less than 20 years or more than 40 years and a fine of not more than $5,000.00.

"The offenses set forth in this section and in section 4 shall be deemed to be included within every offense charged as a violation of section 2 of this act."

I do not read these sections to differentiate between wrongdoers according to whether they are "licensed".

In my view these sections must be read as though they were written:

Sec. 2. Any person not having a license under the provisions of Act No 343 Compiled Laws 1948, So TO DO, who shall sell, manufacture, et cetera.

Sec. 3. Any person not having a license as required under the provisions of Act No 343 Compiled Laws 1948, SO TO DO, who shall possess or have, et cetera.

Accordingly any person charged under these sections with the sale or possession of narcotics can escape punishment only by establishing his authority under Act No 343 for such sale or possession.

Were I to read these sections as creating a classification between "licensed" and "unlicensed" as the basis for permitting different punishments for the same prohibited act such distinction to my mind would be completely unreasonable and unconstitutional.

NOTES

[1] CLS 1961, § 335.152, prescribes punishment for the sale of narcotics by an unlicensed person. CLS 1961, § 335.153, prescribes punishment for the unlawful possession of narcotics. — REPORTER.

[2] See GCR 1963, 712, as amended effective January 1, 1965, 373 Mich. cviii. On September 2, 1964, the Supreme Court ordered that the application for the writ of habeas corpus be treated as an application for leave to appeal and leave to appeal was granted. — REPORTER.

[3] For current provisions see Const 1963, art 1, § 2. — REPORTER.

[4] Quoted in Babcock from Attorney General v. Detroit United Railway, 210 Mich. 227, 253. — REPORTER.