People v. Jasman , 92 Mich. App. 81 ( 1979 )

92 Mich. App. 81 (1979) 284 N.W.2d 496

PEOPLE
v.
JASMAN

Docket No. 78-4485.

Michigan Court of Appeals.

Decided August 21, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Virginia M. Morgan, Assistant Prosecuting Attorney, for the people.

Cole & Tamsen, for defendant on appeal.

Before: ALLEN, P.J., and T.M. BURNS and D.E. HOLBROOK,^[*] JJ.

D.E. HOLBROOK, J.

Defendant appeals by leave granted from a September 26, 1978, order of the Washtenaw County Circuit Court, affirming a judgment of conviction rendered in the 14th District Court adjudging defendant guilty of violating § 31(g) of the Weights and Measures Act, MCL 290.631(g); MSA 12.1081(31)(g).

The proofs presented by the prosecutor established that on February 7, 1978, two officers of the Washtenaw County Weights and Measures Department went to the Speedway gasoline station located at 5 South Fletcher Road, Lima Township, Washtenaw County. The officers went to the station in response to a complaint. This station was owned and operated by the Speedway Oil Company, Inc. Defendant Lem K. Jasman was the station manager.

The officers viewed one of the diesel fuel pumps and observed that the motor was running and the nozzle had not been returned to the housing. The pump showed a sale of $5.01. Plaintiff claimed that with the pump in that condition another sale could be made without zeroing the meter, which would result in an overcharge of $5.01 to the next customer, the amount registered on the pump.

Mr. Benns, one of the officers, spoke with Carl Cherry, who identified himself as shift manager. Cherry stated that defendant was station manager, although defendant was not present. The subject pump was then tagged and photographed.

A warrant was issued on February 9, 1978, charging defendant with violating § 31(g) of the Weights and Measures Act, as follows:

"That defendant did fail to activate zero set back interlock after each delivery to a customer contrary to MSA 12.1081(31)(g)."

Trial was held on March 27, 1978, and at the close of the people's proofs, defendant moved for dismissal, which was denied.

Defendant presents three issues for review, as follows:

I. Should the lower court have granted defendant's motion to dismiss the complaint made at the close of the people's proof?

II. Did the people prove a violation of § 31(g) of the Weights and Measures Act?

III. Does § 31(g) of the Weights and Measures Act violate appellant's constitutional right to due process of law?

The Weights and Measures Act allows for the imposition of vicarious criminal liability upon a showing of a violation of the act by an agent or servant of the defendant and a showing that the defendant either acted or failed to act when he was a person "'with the responsibility, and power commensurate with that responsibility, to devise whatever measures are necessary to ensure compliance with'" the statute. People v DeClerk, 400 Mich. 10, 23; 252 NW2d 782 (1977). In adjudicating the propriety of the trial court's ruling on defendant's motion to dismiss, this Court may look only to the evidence presented by the prosecutor in his case in chief. People v DeClerk, supra, 400 Mich at 18, overruling People v Barlow, 134 Mich. 394; 96 N.W. 482 (1903).

In this case we may assume that the prosecutor proved a violation of § 31(g) by some employee of the gas station, although this is far from clear. Section 31(g) declares it to be a misdemeanor for any person to "offer or expose for sale, or sell a commodity, thing, or service in a condition or manner contrary to law". While the diesel pump may constitute an offer or exposure of diesel fuel for sale, the question is whether failing to zero the meter was an act or failure to act "contrary to law". To determine this, one would have to look elsewhere and find another legal requirement, perhaps a regulation prohibiting such conduct. See MCL 290.623; MSA 12.1081(23).

However, even if we assumed a violation of the act, there was no proof that defendant was a person possessed "with the responsibility to devise whatever measures are necessary to ensure compliance with" the statute. The prosecutor established only defendant's title, that of "station manager".

The owner of a business is presumed, as a matter of law, to have such authority. People v Jabora, 76 Mich. App. 8; 258 NW2d 60 (1977), People v Roby, 52 Mich. 577; 18 N.W. 365 (1884), People v Longwell, 120 Mich. 311; 79 N.W. 484 (1899), People v Damm, 183 Mich. 554; 149 N.W. 1002 (1914). However, we must deal in this case with a corporation, Speedway Oil Company, Inc., the owner of the station in question. Although by law a corporation must have officers consisting at a minimum of president, secretary and treasurer, MCL 450.1531; MSA 21.200(531), the duties of such officers are only those delegated by the board of directors. There is no presumption that the corporation president has any particular power to act on behalf of the corporation. Vogt v General Necessities Corp, 262 Mich. 409; 247 N.W. 707 (1933), Wray v Tilden Saw Co, 198 Mich. 461; 164 N.W. 545 (1917). The power or responsibility of a corporate officer can be established either by proof of express authorization from the board of directors, W F Sheetz & Co, v Commonwealth Commercial State Bank, 282 Mich. 96; 275 N.W. 781 (1937), or by circumstantial evidence as to the manner in which the business has operated in the past. See Shavalier v Grand Rapids Bark & Lumber Co, 128 Mich. 230; 87 N.W. 212 (1901), In Re Seymour, 83 Mich. 496; 47 N.W. 321 (1890).

In People v DeClerk, supra, the prosecutor established that the defendant in a short weighing case was the "meat manager" or "master butcher", and the Supreme Court declared this evidence, reviewed in a light most favorable to the prosecutor, insufficient to establish a sufficient factual basis from which one could infer all of the elements of the crime:

"The prosecution's case consisted of no evidence of the duties, responsibilities or authority of a "master butcher" in the business structure. The prosecution's proofs contain no facts from which we might reasonably infer a responsibility and power on the part of the defendant to avoid or correct violations of the statute. Because we must confine our inquiry to the prosecutor's proofs we do not consider the effect of the defendant's case on the existence of the elements of the crime." 400 Mich. 24.

In the instant case, the prosecutor made no attempt to establish the responsibility or authority of the "station manager". This was an essential element of the prosecutor's proofs. People v DeClerk, supra. Accordingly, defendant's motion to dismisss should have been granted. A new trial may not be granted where, as here, reversal is predicated on the insufficiency of the evidence; the double jeopardy clause of the Fifth Amendment, applicable to the states by virtue of the Fourteenth Amendment, precludes any remedy other than dismissal of the prosecution. Burks v United States, 437 U.S. 1; 98 S. Ct. 2141; 57 L. Ed. 2d 1 (1978).

In view of our decision herein we need not decide the constitutional issue raised by defendant.

Reversed.

NOTES

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