People v. Goulding

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The complaint, warrant and information charged that defendant opened, operated and maintained a private employment agency "where a fee was then and there charged to persons seeking employment." The form of the complaint, warrant and information indicates they were made under Act No. 255, Pub. Acts 1925. They are in the language of that statute, which statute was repealed by Act No. 321, Pub. Acts 1929 (2 Comp. Laws 1929, § 8584 et seq.).

Section 3, Act No. 321, Pub. Acts 1929 (2 Comp. Laws 1929, § 8586), provides:

"No person shall open, operate or maintain an employment agency in the State of Michigan without first procuring a license from the State superintendent of private employment bureaus."

Section 2, Act No. 321, Pub. Acts 1929 (2 Comp. Laws 1929, § 8585), provides:

"The term 'employment agent' or 'employment agency' as used in this act means any person engaged for gain or profit in the business or profession of serving, assisting or counseling employees seeking employment or employers seeking to procure employees."

Section 1, Act No. 255, Pub. Acts 1925, prohibited the maintaining of a private employment agency where a fee wascharged to persons seeking employment without first obtaining a license for the same from the commissioner of the department of labor and industry.

The information filed herein was in the language of Act No. 255, § 1, Pub. Acts 1925. That act had been repealed before the filing of the information against defendant herein.

The precise question is whether an information charging an offense under the statute of 1925, which has been repealed, can be sustained under the act of 1929, the act of 1925 making it an offense to conduct an employment agency, where a fee ischarged, without procuring the necessary license, and the act of 1929 providing that it should constitute an offense to operate an employment agency without a license, for gain orprofit. This all comes down to the question whether charging a fee for services rendered or proposed to be rendered is the same thing as operating an employment agency for gain or profit.

The statute under which the information was filed, and the language of which the charge follows, made it a criminal offense to charge a fee to persons seeking employment unless the person charging the same was licensed. This statute was repealed and the statute under which defendant was convicted was one in which the person not licensed engaged for gain orprofit in the business of assisting persons seeking employment.

The word "fee" must be construed in its usual and ordinary sense. We frequently hear of an attorney fee, a medical fee, a contingent fee, an initiation fee, a license fee, a filing fee, etc. A fee is usually a fixed charge, a perquisite charged as a recompense for labor and trouble. The lexicographers define it as a reward, compensation or wage given to one for the performance of professional services as in case of an attorney at law or a physician. Fees are to be distinguished from costs. The one is to compensate for service rendered or to be rendered. The other is an indemnification for money expended or to be expended. Crawford v. Bradford, 23 Fla. 404 (2 So. 782) ; Tillman v. Wood, 58 Ala. 578. A fee is a payment for something done or to be done (Teller County v. Trowbridge, 42 Col. 449 [95 P. 554]), and is to be distinguished from salary and from wages (Blick v. Mercantile Trust DepositCo., 113 Md. 487 [77 A. 844]; In re Stryker, 158 N.Y. 526 [53 N.E. 525, 70 Am. St. Rep. 489]; Landis v. Lincoln County,31 Ore. 424 [50 P. 530]).

On the other hand, the terms "gain" and "profit" import ordinarily an element of chance, venture or business hazard. We speak of undistributed profits, undivided profits, pecuniary profits, rents and profits, net profits, etc. Profits are usually defined as the net gain made from an investment or from the prosecution of some business after payment of all expenses incurred, and the term is not to be confused with earnings or receipts which deal only with income and not with operating costs, fixed charges, overhead, depreciation or expenses. Ordinarily, gains and profits are ascertained by determining the difference between the cost of an article to the vendor and the price received for it from the vendee.McDaniel v. State Fair of Texas (Tex.Civ.App.), 286 S.W. 513.

Wharton (13th Ed.), Bouvier (Rawle's 3d Rev.), Ballentine and Black (2d Ed.) indicate profit is the gain made by the sale of produce or manufactures after deducting the value of the labor, materials, rent and all expenses, together with the interest on the capital employed.

The Supreme Court of the United States says:

" ``Profit' is the gain made upon any business or investment, when both the receipts and payments are taken into the account." Rubber Co. v. Goodyear, 9 Wall. (76 U.S.) 788.

This was in effect the rule subsequently recognized and applied in Hinckley v. Pittsburgh Steel Co., 121 U.S. 264 (7 Sup. Ct. 875).

A fee is one thing; gain and profit another. A fee may be a source of income but there may be no profit. A fee is a fixed charge; a profit is a resultant gain. Fees less expeness may equal profits. Hospitals and educational institutions charge fees, but they are not institutions operated for profit. To convict one of operating an employment agency for gain or profit, it is not sufficient to prove a fee was charged. The legislature repealed the statute under which defendant was charged. We may not by judicial legislation stretch the substituted statute to cover the one intentionally repealed.

Statutes defining crimes are to be strictly construed. They must prescribe with reasonable certainty the elements of the offense. 12 C. J. p. 1203. They ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. United States v. Brewer, 139 U.S. 278 (11 Sup. Ct. 538); Commonwealth v. Atlas, 244 Mass. 78 (138 N.E. 243); United States v. Sharp, 27 Fed. Cas. 1041. The legislature must inform the citizen with reasonable precision what acts it intends to prohibit, so that he may have a certain rule of conduct. 8 R. C. L. p. 58.

Criminal statutes must so clearly define the acts upon which the penalty is denounced that no ordinary person can fail to understand his duty and the departure therefrom which the law attempts to make criminal. Brown v. State, 137 Wis. 543 (119 N.W. 338).

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. State of Oregon v. Mann, 2 Ore. 238.

No penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it.Tozer v. United States, 52 Fed. 917; Chicago N.W. R. Co. v.Dey, 35 Fed. 866 (1 L.R.A. 744); Railroad Commission ofIndiana v. Railroad Co., 179 Ind. 255 (100 N.E. 852).

"No principle is more universally settled than that which deprives all courts of power to infer, from their judicial ideas of policy, crimes not defined by statute or by common-law precedents." Ware v. Branch Circuit Judge, 75 Mich. 488.

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. The statute may not be extended beyond its plain terms by judicial construction, and defendant convicted, by showing acts which ought to have been within the terms of the statute but are not. There are no constructive criminal offenses. Defendant, charged with a violation of Act No. 255, Pub. Acts 1925, which has been repealed, may not be convicted on the facts before us for violating Act No. 321, Pub. Acts 1929.

Conviction reversed. Defendant discharged.

FEAD, WIEST, and EDWARD M. SHARPE, JJ., concurred with POTTER, J.