People v. Bronkhurst

Respondent was tried and convicted in the circuit court, without a jury, of operating a public dance hall without first having obtained the license required by Act No. 53, Pub. Acts 1921, as amended (2 Comp. Laws 1929, §§ 8903-8910, as amended [Stat. Ann. §§ 18.491-18.498]). Respondent was the holder of a class "C" tavern license from the liquor control commission to sell alcoholic, liquors, wine and beer for consumption on premises located outside the limits of an incorporated city or village.

Respondent's principal business on these premises was the sale of intoxicating liquors, although she occasionally furnished chicken dinners. The approximate area of the building occupied by her business was 60 by 40 feet, within which a space of 18 by 24 feet was reserved for dancing, entirely surrounded by chairs and tables for her customers. Customers who were seated and made a purchase were allowed to dance, the music being furnished by a coin-operated music box set into operation by the depositing of a nickel therein by a customer. No separate charge was made for dancing, and no advertising or other public solicitation was made calling attention that dancing was permitted. The privilege of dancing was merely an incentive to draw customers.

The question is largely as to which of two applicable statutes controls the situation.

Act No. 53 regulates the establishment, maintenance and conduct of public dance halls, billiard and pool rooms, bowling alleys, and soft-drink emporiums outside of an incorporated city or village. It was enacted while the manufacture and sale of liquor were unlawful in Michigan and makes no express provision for licensing a place where liquor is sold. On the contrary, section 4-a of this act expressly provides that every public dance hall license granted under the act shall be revoked for certain specific causes, inter alia the sale or consumption of intoxicating liquors on the premises. Obviously, a license to operate a public dance hall under this act must be distinguished from a permit under the liquor control act to allow dancing on premises where intoxicating liquors are sold for consumption.

When Act No. 53 became the law of this State, the manufacture and sale of intoxicating liquors (with certain exceptions) were unlawful in this State. Subsequently, at the November, 1932, election, Michigan ratified an amendment to its Constitution (Const. 1908, art. 16, § 11) which provides for the lawful sale of intoxicating liquors and authorizes the legislature to establish a liquor control commission. This amendment provides:

"Subject to statutory limitations, [the commission] shall exercise complete control of the alcoholic beverage traffic within this State."

Under this amendment, the legislature by Act No. 8, Pub. Acts 1933 (Ex. Sess.) (see Comp. Laws Supp. 1940, § 9209-16 et seq. [Stat. Ann. § 18.971 et seq.]), created the liquor control commission and authorized the sale of alcoholic liquors. Section 7 of this act directs the commission to adopt rules and regulations and under that authority the commission adopted Rule No. 15^* forbidding its licensees to allow dancing upon licensed premises unless a dance permit be obtained. Respondent was the holder of such a dance permit.

The provisions of Act No. 53, requiring a license to maintain and conduct a public dance hall outside the limits of incorporated cities and villages, is not necessarily in conflict with the later constitutional amendment or with the liquor control act and Rule No. 15 of the liquor control commission. Act No. 53 merely purports to regulate the establishment and maintenance of public dance halls. Rule No. 15 merely declares that no person holding a license from the commission to sell intoxicating liquors on his premises shall allow dancing on the premises without obtaining a permit. Strictly construed, Rule No. 15 means that if the licensee allows or permits any dancing whatever upon his premises without the permit referred to, he violates the liquor control act and subjects himself to revocation of his license to sell intoxicating liquors. The allowing of occasional dancing on the premises as indicated by the record in this case is not the same as maintaining and conducting a public dance hall.

A public dance hall is any room or place at which a public dance is held. It contemplates that the public shall be admitted mainly for the purpose of dancing. Stetzer v. ChippewaCounty, 225 Wis. 125 (273 N.W. 525).

The conviction at bar, if upheld, means that respondent should have obtained the public dance hall license required by Act No. 53. The respondent, by applying for such a license from the township board, would be in the position of admitting that the business conducted by her was that of maintaining and conducting a public dance hall within the meaning of Act No. 53. If the respondent applied for and obtained a public dance hall license, she would ipso facto be compelled to discontinue the sale of intoxicating liquors on the premises or otherwise submit herself to section 4-a of that act which requires that the public dance hall license be revoked by the township board if she sold intoxicating liquors on the premises. There is an obvious distinction between a license to maintain and conduct a public dance hall as referred to in Act No. 53, and a permit from the liquor control commission to allow dancing under Rule No. 15.

While the record is very meager as to the facts in the instant case, it fails to disclose a violation of Act No. 53. There is no conflict in the testimony and the judgment of the trial court in applying the facts to the law was erroneous. The conviction does not indicate proper consideration of the distinction between a public dance hall under Act No. 53, and providing a place for occasional dancing under the liquor law.

Conviction set aside and respondent discharged.

^* Effective November 1, 1937. — REPORTER.

NORTH, J., concurred with BOYLES, J.