PEOPLE v. SLATER. (Supreme Court of Michigan. Dec. 30, 1910.) 1. INTOXICATING LIQUORS ( 156*) - LOCAL OPTION LAW-VIOLATION. The local option law does not prohibit the individual use of intoxicating liquors, and does not interfere with a person's decent exercise of hospitality in his home towards his guests, but an individual may not in his own home dispense liquors with the intent to evade the law. [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 155; Dec. Dig. § 156.*] 2. INTOXICATING LIQUORS (§ 238*) - VIOLATION OF LOCAL OPTION LAW-EVIDENCEQUESTION FOR JURY. On a trial for violating the local option law, evidence held to require submission to the jury of the issue whether the act of accused was an honest act of hospitality to a guest without an intent to evade the law, or the contrary. [Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 238.*] 3. CRIMINAL LAW (§ 753*)-TRIAL-QUESTION FOR JURY. That counsel for accused insisted that the trial judge should direct a verdict of acquittal did not, on the trial judge ruling against him, amount to a waiver of the right of accused to a submission of the case to the jury, and a charge that it was the duty of the jury under the evidence to convict accused was erroneous. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 753.*] Exceptions from Circuit Court, County; Kelly S. Searl, Judge. Clinton Frank Slater was convicted of violating the local option law, and he brings exceptions. Verdict set aside, and new trial or dered. Argued before HOOKER, MOORE, McALVAY, BROOKE, and BLAIR, JJ. Edward J. Moinet, Pros. Atty., for the People. Walbridge & Kelley, for respondent. 235, 120 N. W. 570, 21 L. R. A. (N. S.) 134, and People v. Bedell, 127 N. W. 33. The second contention is (we quote from the brief): "The second point in this case is that if the Supreme Court should hold that the trial court was justified in refusing to direct a verdict in respondent's favor, he still had the right to have his case passed upon by the jury, because the matter of his intent was involved. The charge of the court was faulty in not presenting to the jury the question whether respondent was acting in good faith, or attempting and intending to evade the law. People v. Bedell, 127 N. W. 33; People v. Peterson, 156 Mich. 235, 120 N. W. 570, 21 L. R. A. (N. S.) 134; People v. Neumann, 85 Mich. 98-104, 48 N. W. 290. There was no material dispute upon what took place in respondent's room, and the only question left was whether respondent's acts constituted a violation." It is apparent that a comparatively full statement of the testimony is necessary to a determination of the questions presented. Mr. Keyes testified "that he was 54 years of age; that both witness and respondent had resided at said city of St. Johns for a number of years; and that they were both painters and paper hangers by trade, and had been acquainted and on friendly terms for about 30 years." On the day in question the witness testified: "I don't know when I had seen Slater before then. I seen him about Fair time, and I probably might have seen him before that. Q. Just tell the jury how you came to meet him down there on Clinton avenue. A. Well, sir, I came down Clinton avenue on Sunday between 8 and 9 o'clock in the morning and met him down there in front of the Kenyon Block. No one else was present that I know of. Q. Well. what conversation did you have there with him at that time? A. We was talking about going away. I told him I was going away to look for a job, and he said if I would wait a week or two he could go with me. Q. What talk did you have about going up to his room, if anything? A. Nothing in particular, only he said something about going up, and I went up with him. He said, 'We will go up to the room and have a talk,' something to that effect. When I got up to his room I took a chair and sat down. Q. What did he do? A. Well, sir, he unlocked his trunk, and got out a little booze-whisky. It was in a quart bottle I should judge, and was about two-thirds full. He said he got it to Owosso the Saturday before. Q. What did he do with the bottle when he took it out of the trunk? A. He set it upon the stand. The stand set right in front of me. Counsel for respondent make two claims. I sat down by the stand. Q. What did you first, that a verdict of acquittal should have do? A. I took a drink. I think maybe he been directed in favor of respondent; citing took one. There was whisky in the bottle." the cases of People v. Peterson, 156 Mich. Slater and witness remained there probably MOORE, J. The respondent is charged with a violation of the local option law. At the close of the testimony offered by the people his counsel asked the court to direct a verdict of acquittal. The judge said he would overrule the motion for the present, but would hear counsel at the close of all the testimony. Testimony was then introduced on the part of the respondent. At the close of all the testimony in response to an inquiry by the judge, counsel on both sides said they regarded it as the duty of the judge to direct a verdict. The judge instructed the jury in substance that it was their duty under the evidence to convict the respondent. The jury retired to the jury room and after a time returned a verdict of guilty. The case is here upon exceptions before sentence. until he came to the railing around the entrance to the cellar in front of the Little building and he got hold of that." an hour and one-half. "Q. I ask you wheth- | started south staggering along on the walk er or not you had any more drinks out of that bottle? A. I took a few, probably five or six; Slater might have taken one or two more. There might have been two or three inches of whisky left in the bottle when I left the room-that is my judgment. I felt the whisky that I drank there, and it caused me to become intoxicated at that time. We did not have a meal or anything to eat there at that time. There was a stand and bed, chairs, and trunk in the room. There were no cooking utensils of any kind that I noticed. None of the liquor I had there was mine. I had not had any liquor that morning prior to meeting Slater and going up to his room. I was sober when I went up there. I had seen him in that room before. I probably had five or six drinks of liquor out of that bottle that morning when I went out of the room. I went downstairs; nobody went with me. I don't know where Slater went; he was in the room when I left. I went out of the room and downstairs on the street-in front of the Kenyon Block. I was intoxicated at the time I got down on the street, on Clinton avenue." The respondent was a witness in his own behalf. He testified in part as follows: "That he was 40 years of age, and was a painter and paper hanger by trade; that he had been engaged in that business at St. Johns for 16 years, where he had lived all his life; that he had been and was on friendly terms with Aretus Keyes, and had worked with him at various intervals; that on the day in question he had a stopping place at St. Johns which was the room in the Kenyon Block over Willoughby's restaurant where he stopped while in St. Johns since the 12th. day of August up to October 24, 1909; that he kept his clothing and personal effects in that room; that prior to October 24th he had been working at Fowler at his trade continuously for about 9 weeks; that he came to St. Johns every Saturday night and occupied this room; that he had no other stopping place in St. Johns on October 24, 1909; that he had no other home, and that St. Johns was his residence; that while standing on the sidewalk in front of the His cross-examination did not differ ma- Kenyon Block on the day in question Keyes terially from his direct examination, except came up, and they engaged in conversation; as follows: "He did not ask me to have a that Keyes wanted to know how he was getdrink of whisky. He had a little something ting along at Fowler, and that respondent to drink, and he got it and sat it up on the told him that he would be through in a stand, and I helped myself. Q. When did he couple of weeks. * * Q. To refresh say that? A. When we was upstairs, after your recollection did you say anything to we had gotten into the room. Q. When is it him about coming upstairs? A. No, sir; I you claim when he said something about hav-spoke that I was going upstairs, and I says, ing a little whisky or something to that 'I will have to go upstairs, I have got some effect? A. It was after we were up in the room, I guess it was after he went to the trunk; it was after he got it out of the trunk and set it on the stand. Q. After that every time you wanted a drink, you took it? A. Yes, sir. Q. Without any invitation from Mr. Slater or anything being said about it? A. Yes, sir. Q. Now, I ask you, Mr. Keyes, if during the time you were there after you had gotten upstairs, Mr. Slater asked you or invited you by word of mouth to take any whisky? A. No; he didn't ask me personally to take a drink." On redirect examination the witness testified that respondent did not make any objection to witness drinking out of the bottle. "Q. And at times I asked you whether or not, when you took a drink, Slater would drink following you? A. Yes, sir; when I left the room finally the bottle was on the stand." letters to write.' He didn't say anything only he followed along up. When they got into the room respondent unlocked his trunk. got out some stationery and put it on the commode. Keyes sat down in a chair. That there was a bottle of whisky in the room on that day between the trunk and the commode, and that it was there before the trunk was opened and sat on the floor. Q. After you got the stationery and put it on the commode, what happened, if anything? A. Not anything; I shut the trunk down and sat on the trunk, and we sat there talking. That respondent had not put his hands upon the bottle or said anything about it up to this time; that Keyes moved his position from where he sat on the chair, and sat down on the window stool, where he could see the bottle sitting at the end of the trunk. After doing this he got up and went George Tinkham, city marshal, testified over and said, 'What is this?' Then he took that on the day in question he saw Keyes in a drink from the bottle, and set it down upfront of the Kenyon Block. He came out of on the commode; that up to that time rethe stairway out of the Kenyon building. spondent had not said anything about the "I have been upstairs on the second floor bottle; that Keyes did this after respondent and know where Slater had a room up there. took the stationery out of the trunk. Q. And This stairway led down on the street from did Keyes help himself to that bottle furwhere this room was located. When I first ther during that time? A. He did. Q. Did noticed Keyes he stepped out of the stair- you drink some of it? A. I did. Q. How drank twice. Q. Do you recall how many times Keyes drank from it? A. No, sir, I don't. Q. Did you ask or invite Keyes by word of mouth to take any liquor from the bottle? A. No, sir. Q. Nothing was said about having a drink or having liquor when you went upstairs? A. No, sir." On cross-examination respondent testified: "Q. How many times have you been arrested, Mr. Slater? A. I don't remember, I think it is five times. That the first time was about 12 years ago for getting drunk-that he pleaded guilty; that about a year after that time he was arrested on a drunk and disorderly charge, pleaded guilty and paid his fine; that perhaps four or five years later he was arrested for being drunk and disorderly, pleaded guilty, paid his fine; that after that in the year of 1908 he was arrested for being drunk and disorderly, charged as a second offense, and that he paid his fine; that in the summer of 1909 he was arrested for violating the local option law, pleaded guilty, and served time in the county jail." The respondent further testified on cross-examination: "Q. Did you change your residence from St. Johns shortly after the 24th day of October, 1909? A. Yes, sir. Q. Where did you go? A. Detroit; I went from Fowler to Portland, and from Portland to Detroit. * Q. How did you go from Fowler to Portland? A. I walked the most of the way. Q. You left Fowler when you heard a warrant had been issued for you? A. Yes, sir; and walked from there to Portland. * * I got in there I went to the trunk and opened it and took out some stationery. I had not had a drink out of the bottle that morning. I took the last drink out of it the night before and about two-thirds remained in the bottle at that time. That when Keyes saw the bottle he took a drink out of it and put it down on the commode, and that about 15 minutes after respondent took a drink from the bottle; that when respondent took a drink he set the bottle on the floor; that Keyes then took it and drank and set it on the commode; that respondent took another drink and set it down on the floor. Q. Right down in front of Rete? A. No; at the end of the trunk where he was sitting. Q. What did you set it back there for? A. I don't know why, but I did. Q. Were you afraid somebody would come in? A. Yes, sir. Q. Was your door locked? A. Yes, sir. Q. What did you lock that door for if Rete was only going up there to see you write a few letters? A. I don't know why, I always do when I go in there. Q. You were willing that he might have that whisky, weren't you? A. Why, yes, I think so. Q. And he picked it up and took a drink, and what did he do with the bottle? A. He set it on the commode, then I took it up. That there was no cork in the bottle it having been destroyed the night before. I picked the bottle up and took a drink myself, and set it down to the end of the trunk. Q. Why didn't you hand it to Rete? A. I didn't. Q. He was an old friend of yours, wasn't he? Q. Where were you the day before the 24th of A. Yes, sir. Q. You and he were drinking October last? A. Owosso; I went down there there together? A. Yes, sir. Q. It was your to get something to drink; I got a quart of whisky? A. Yes, sir. Q. You were in your whisky there. Q. Anything else? A. No, room? A. Yes, sir. Q. Why didn't you hand sir. Q. Did you get some beer? A. Yes. Q. him the bottle? A. I don't know. Q. Did I think you said a moment ago you didn't you think you were not furnishing him that get anything else? A. I didn't think of the liquor if you would set that bottle by the beer at that time. I got three pint bottles trunk again? A. No; I was not furnishing of beer and a quart of whisky, and brought it. * Q. How long was it before he it back to St. Johns, and took it to my room went down? A. I don't know; I went into in the Willoughby boarding house. I drank the closet maybe seven or eight minutes, the beer that night and quite a lot of the when I came back Rete was gone. He was whisky, better than one-third of it. There just coming out of the room when I came was about two-thirds of the whisky left in back. I think he was not under the influthe bottle the next morning. * * Q.ence of liquor to any extent at that time— What did you leave Fowler for and go over to Westphalia and from there to Portland and from Portland to Detroit? A. Because I knew this warrant was out for me on this local option. Q. For furnishing liquor to Aretus Keyes? A. For this violation, yes. simply ducked." On cross-examination the witness furthered himself up there into your room and walktestified: "It was somewhere around 9 ed over there in the corner of the room and o'clock that morning I met Keyes down on drank your whisky and you had absolutely the street. We stood at the foot of the stairs nothing to do with furnishing that liquor, talking. I says, 'I have got to go up and do what did you dig out for? A. Simply besome writing.' I started up, and he followed cause I had served one spell up here, and I me upstairs, and I didn't ask him to come didn't want any more. Q. Do you know you along up, and he had never been up to my were not guilty of doing anything if that room before. We had been talking in the was all you done? A. I was guilty of having neighborhood of 10 minutes before we start- | the liquor in my room. Q. Do you claim you you dig out for if that was it? A. I don't decent hospitality. Former decisions of this know that I did furnish it to him; it was court, which are referred to in the opinion there." of Justice Moore, recognize the distinction here pointed out." It is apparent under these decisions that the important question in the case is whether what was done by respondent was an honest act of hospitality to a guest, without an intention to evade the law, or the contrary. There was testimony from which either in It is very apparent from the testimony of Mr. Keyes and the respondent that both desired the court and jury to understand that Mr. Keyes did not go to the respondent's room by his invitation, and that he did not because of respondent's invitation partake of any of the large quantity of whisky which he imbibed between the time he entered reference might be drawn, making it a proper spondent's room sober and the hour and a question for the jury. half later, when he staggered out of the stairway upon the public street, drunk. In a case where liquor was furnished by the hotel clerk to the dining room girls in the room of one of them for social purposes, Justice Blair, in the opinion of the court, used the following language: "The local option law was intended in my opinion, not only to wipe the business out of existence in the county, but to prevent the inhabitants of the county from obtaining liquor in the county. For the latter purpose, the act prohibits any person from giving away intoxicating liquor, and thereby heads off the numerous subterfuges which would interfere with the enforcement of the law. We have held that It is contended the right to have the question submitted to the jury was waived, when counsel for respondent insisted the judge should direct a verdict in his favor. We do not think because of this position counsel waived the other point in case the judge found against him upon his contention. The verdict is set aside, and a new trial ordered. HOOKER, BROOKE, and MCALVAY, JJ., concurred with MOORE, J. BLAIR, J., concurred in the result. HARTZ v. MURFIN, Circuit Judge. (Supreme Court of Michigan. Dec. 30, 1910.) 1. APPEAL AND ERROR (§ 78*) — JUDGMENTS APPEALABLE-FINAL JUDGMENT. An order of the circuit court dismissing an appeal in condemnation proceedings to take land for a highway, on the ground that the statute authorizing an appeal was unconstitutional, was a final judgment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 426, 464; Dec. Dig. § 78.1 2. MANDAMUS (§ 3*)-GROUNDS OF RELIEFADEQUACY OF OTHER REMEDY. Mandamus will not lie where there is another adequate remedy. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 8; Dec. Dig. § 3.*] 3. APPEAL AND ERROR (§ 5*)-WRIT OF ERROR -STATUTORY PROCEEDINGS. A writ of error does not lie in proceedings which are purely statutory and not according to common law, so that a writ of error will not lie to review an order of the circuit judge dismissing an appeal in proceedings to condemn land for highway purposes; certiorari being the proper remedy. the statute was not intended to prohibit the individual use of intoxicating liquors, nor to invade the privacy of the home and interfere with the owner's decent exercise of hospitality towards his guests, but we do not think the terms of the act warrant a further limitation of its operation." People v. Myers, 161 Mich. 40, 125 N. W. 701. See People v. McCall, 161 Mich. 674, 126 N. W. 1052. In People v. Peterson, 156 Mich. 235, 120 N. W. 570, 21 L. R. A. (N. S.) 134, Justice Ostrander, speaking for the court said: "The object of the act is to prohibit the manufacture of, and all traffic in, liquors. It cannot be reasonably construed so as to apply to the individual use, or the keeping for use, of liquors by citizens. Whether an individual might, even in his own house dispense liquors purchased and kept for his own use, in such manner as to make his conduct obnoxious to the law, is a question not presented." See People v. Giddings, 159 Mich. 523, 124 N. W. 546. In a concurring opinion by Justice Ostrander in People v. Bedell, 127 N. W. 33, he used the following language: "But I think it proper to say that in my opinion the rooms occupied by an unmarried man may be considered to be his home, in which, in a proper manner, he may be host to a friend or to friends. If the testimony were less conclusive in establishing the fact that this respondent, on this occasion, was permitting others to use his rooms for the purpose of drinking not only his beer, but the whisky of another, I should regard the charge as faulty in not presenting to the jury the question whether the respondent was acting in good faith and exercising a [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 8-21; Dec. Dig. § 5.*] 4. CERTIORARI (§§ 13, 12, 21, 28*)-GROUNDS OF RELIEF REVIEW OF STATUTORY PROCEEDINGS. dicial proceedings of inferior tribunals and Common-law certiorari lies to review jubodies which are not according to the course of the common law, as well as such proceedings when not judicial, and extends to a review of is exercised, as well as to the fact of jurisdicquestions as to the manner in which jurisdiction tion; the writ being recognized by Const. art. 7, §§ 4-7, and Comp. Laws, § 10,497. [Ed. Note.-For other cases, see Certiorari, Cent. Dig. §§ 20, 18, 33, 34, 41; Dec. Dig. §§ 13, 12, 21, 28.*] 5. EMINENT DOMAIN (8 264*)-Certiorari. edy for reviewing a judgment of the circuit | cuit Judge, 122 Mich. 490, 81 N. W. 355; Marcourt dismissing an appeal in proceedings to dian v. Wayne Circuit Judge, 118 Mich. 353, condemn land for highway purposes, on the 76 N. W. 497; Skutt v. Kent Circuit Judge, ground that the statute authorizing an appeal and review of such proceedings was unconstitu- 136 Mich. 477, 99 N. W. 405; Cattermole v. tional. Ionia Circuit Judge, 136 Mich. 274, 99 N. W. 1; City of Flint v. Genesee Circuit Judge, 146 Mich. 439, 109 N. W. 769; Moran v. Wayne Circuit Judge, 125 Mich. 6, 83 N. W. 1004. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 688, 689; Dec. Dig. § 264.*]| Application for mandamus by John C. Hartz against James O. Murfin, Wayne Circuit Judge. Application denied. Argued before OSTRANDER, HOOKER, MOORE, STONE, MCALVAY, BROOKE, and BLAIR, JJ. It is a well-settled rule that mandamus will not lie when there is another adequate remedy. What is the adequate remedy in such a proceeding? It has been often held by this court that in proceedings which are purely statutory, and Keena, Lightner & Oxtoby, for relator. C. not after the course of the common law, the C. Yerkes, for respondent. STONE, J. In this case petitioner prays for a writ of mandamus to compel the circuit judge to vacate and set aside an order dismissing an appeal from the township board of the township of Plymouth, in a certain highway proceeding, and to reinstate said appeal in the circuit court. writ of error will not lie. Holbrook v. Cook, cuit Judge, 146 Mich. 540, 109 N. W. 846, this The proceeding in this case is one to condemn lands. Such proceedings are special and summary in character, and, while subject to judicial review and supervision for certain purposes, are not judicial proceedings. Toledo, A. A. & G. T. Ry. v. Dunlap, 47 Mich. It appears that upon the petition of the requisite number of freeholders of said township, the commissioner of highways took certain action to lay out a highway therein, through lands belonging to the petitioner. The petitioner conceiving himself aggrieved by the determination of such commissioner, perfected an appeal therefrom to the township board of said township. That later said township board took action, and affirmed the determination of said commissioner in said matter. That thereupon petitioner, in pur-456, 11 N. W. 271. suance with the statute, duly perfected an appeal from the determination of the township board to the circuit court for the county of Wayne. Due return was made to said appeal. Later said cause came on for trial on said appeal. While the jury was being impaneled, a question was raised by the circuit judge as to the constitutionality of the proceeding, and he finally, by order, dismissed the appeal, upon the ground that the statute providing for an appeal and hearing is unconstitutional, because it contravenes the express language of the Constitution of this state. After the denial of a motion to vacate said order, the petitioner applied to this court for mandamus. An order to show cause was granted, and the respondent has answered. Counsel for petitioner cites the following cases in support of his claim that he is entitled to invoke this remedy: Michigan Mut. Fire Ins. Co. v. Circuit Judge, 112 Mich. 272, 70 N. W. 582; Fingleton v. Kent Circuit Judge, 116 Mich. 211, 74 N. W. 473; Defoe v. Bay Circuit Judge, 116 Mich. 567, 74 N. W. 733. Under the later decisions of this court, we are of opinion that the petitioner has mistaken his remedy, and that he presents a case where he has another adequate remedy, as the order made by the circuit judge amounted to a final judgment. Dages v. Sanilac Cir In that case Justice. Campbell said: "The proceedings to condemn lands, although made under the railroad laws subject to judicial review and supervision for certain purposes, are not in themselves, and never have been regarded as judicial proceedings. Our Constitution allows them to be conducted by highway commissioners in some cases, and by specially appointed commissioners or juries of freeholders. The inquiry in this state, as elsewhere, is an appraisal or estimate of values, and not a contest on litigious rights, and includes what is not elsewhere included, an inquiry into the necessity of the proposed taking for public purposes, which was never made by courts, but always heretofore by the Legislature or some unjudicial body of its creation. Had it not been for the specific provisions of our Constitution the state could have provided for these inquiries to be made by any medium it might select. Our present system is better calculated than the old one, if fairly applied, to secure the rights of landowners. But the nature of the proceeding remains as before, a special proceeding by a temporary tribunal selected for the occasion, and not a judicial proceeding in the ordinary sense." Michigan, etc., R. Co. v. Circuit Judge, 144 Mich. 44, 107 N. W. 704; U. S. Gypsum Co. |