text:
    PEOPLE v GREEN
    Docket Nos. 46458, 46459.
    Submitted January 4, 1980, at Grand Rapids.
    Decided February 13, 1980.
    Gregory A. Green was convicted, on his pleas of guilty, of two separate counts of possession of marijuana with intent to deliver, Mason Circuit Court, Richard J. Cooper, J. Subsequently defendant moved to withdraw his guilty pleas, contending that he was denied effective assistance of counsel. Defendant urged that with respect to one count he was denied effective assistance of counsel by reason of the fact that his counsel at the preliminary examination had previously represented the key prosecution witness and counsel’s law firm was then representing that witness and that, accordingly, counsel had a conflict of interest. As to the other count, defendant urged that he was denied effective assistance of counsel by reason of the failure of counsel to raise a constitutional defense. Defendant’s motions to withdraw his guilty pleas were denied. Defendant appeals. Held:

    1. The fact that the defendant’s counsel had represented the key prosecution witness does not constitute a per se denial of effective assistance of counsel. The defendant has not shown that he was denied effective assistance of counsel, since the record reveals that: (1) defendant’s counsel was not representing the prosecution witness at the time of his representation of defendant; (2) the representation of defendant by that counsel was limited to the preliminary examination, with counsel withdrawing thereafter to avoid any possible conflict in later stages of the prosecution; (3) defendant consented to counsel’s representation of him after being informed of the relevant facts; and (4) counsel participated fully in the examination and performed at least as well as a lawyer with ordinary training and skill in the criminal law. The record clearly establishes that no interest of defendant was sacrificed by counsel’s representation.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 315.
    [2] 7 Am Jur 2d, Attorneys at Law § 184 et seq.

    21 Am Jur 2d, Criminal Law § 309 et seq.

    75 Am Jur 2d, Trial § 52.
    Propriety and prejudicial effect of counsel’s representing defendant in criminal case notwithstanding counsel’s representation or former representation of prosecution witness. 27 ALR3d 1431.
    [3] 21 Am Jur 2d, Criminal Law § 349 et seq.

    Custodial interrogation: what constitutes "custodial interrogation” within rule of Miranda v Arizona requiring that suspect be warned of his federal constitutional rights before custodial interrogation. 31 ALR3d 565.
    [4] 21 Am Jur 2d, Criminal Law § 309 et seq.

      2. There was no constitutional obligation requiring the police informer to give the defendant Miranda warnings prior to asking the defendant whether he had any marijuana to sell, even though the informant’s inquiry arose out of a request by the police. Not only was there no police custody or confrontation involved, but also there existed no compulsion or coercion with respect to the solicitation of defendant’s statements. In the absence of these elements, the requirements necessary to trigger the mandatory giving of Miranda warnings were not extant.
    3. A claim of ineffective assistance of counsel is not supported where the claim is premised upon the failure to raise a defense which not only is not a substantial defense but is, in fact, no defense at all.
    Affirmed.
    1. Constitutional Law — Criminal Law — Right to Counsel — Effective Assistance of Counsel — Plea of Guilty.
    An ineffective assistance of counsel claim is reviewable after a guilty plea.
    2. Constitutional Law — Criminal Law — Right to Counsel — Effective Assistance of Counsel — Conflict of Interests.
    There was no denial per se of effective assistance of counsel at a preliminary examination by reason of the fact that counsel had previously represented a key prosecution witness; nor is ineffective assistance of counsel shown where defendant’s counsel was not representing the prosecution witness at the time of his representation of the defendant, the representation of defendant was after defendant was apprised of the facts and consented to the representation at the preliminary examination, and the record establishes that counsel participated fully in the examination and performed at least as well as a lawyer with ordinary training and skill in the criminal law.
    3. Constitutional Law — Criminal Law — Police Informants — Miranda Warnings.
    There is no constitutional obligation requiring a police informant who, at the request of the police, calls a defendant to arrange a purchase of a controlled substance to give to the defendant Miranda warnings prior to asking the defendant whether he had some of the controlled substance for sale, since the elements of police custody or confrontation and compulsion or coercion necessary to trigger the warning requirement are not present.
    4. Constitutional Law — Criminal Law — Right to Counsel '— Effective Assistance of Counsel — Substantial Defense.
    A claim of ineffective assistance of counsel is not established where the claim is premised upon the failure to raise a defense which not only is not a substantial defense, but is, in fact, no defense at all.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Martin M. Holmes, Prosecuting Attorney (by Mary C. Smith, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Parmenter, Forsythe, Rude, Gavigan, VanEpps & Briggs (by Roger H. Anderson), for defendant on appeal.
    Before: D. F. Walsh, P.J., and R. B. Burns and J. H. Gillis, JJ.
   Per Curiam.

On January 16, 1979, the defendant pled guilty to two separate counts of possession of marijuana with intent to deliver, MCL 335.341(1)(c); MSA 18.1070(41)(1)(c), lower court numbers 7-206 and 7-212. He was sentenced to three years probation on the first count and to one year imprisonment on the other.

Approximately six months later, the defendant moved to withdraw the guilty pleas, contending that the appointed counsel who represented him at his preliminary examination on the first charged offense had a conflict of interest and that he was denied the effective assistance of counsel in entering his plea to the second offense. In support of the latter contention, the defendant asserted that his substituted appointed counsel failed to inform him of a potential fifth amendment defense.

A hearing was held in the trial court on June 21, 1979. In an opinion dated July 12, 1979, the lower court denied the defendant’s motion. The defendant appeals from the denial as a matter of right. GCR 1963, 806.1.

On appeal, defendant claims that the appointed counsel’s conflict of interest and the substituted counsel’s failure to inform him of a potential defense evince ineffective assistance of counsel. An ineffective assistance of counsel claim is reviewable after a guilty plea. People v McDonnell, 91 Mich App 458, 460; 283 NW2d 773 (1979).

We first address the defendant’s claim with respect to the asserted conflict of interest. In case #7-206, the court appointed counsel to represent the defendant. At the preliminary examination, appointed counsel indicated to the court that he had represented the key prosecution witness in the past and that another member of his firm was presently representing the witness on a pending charge. Counsel stated that he had discussed the matter with the defendant, who had no objection to counsel conducting the preliminary examination. Counsel further stated that if the defendant were bound over for trial, he would withdraw as defendant’s attorney. The examination commenced and resulted in the defendant being bound over. Counsel promptly moved to and did withdraw.

Defendant argues first that representation of a defendant and a key prosecution witness amounts to ineffective assistance of counsel per se. We decline to apply a per se rule under the facts of the present case. See People v Van Brocklin, 76 Mich App 427, 430; 257 NW2d 107 (1977). The facts underlying this declination are that counsel was not presently representing the witness, that the representation of the defendant took place at the preliminary examination and that defendant consented to such representation after having discussed the matter with counsel. We hold that, absent some showing of prejudice arising from the conflict of interest, the defendant was not denied effective assistance of counsel. We further hold that no such prejudice was extant here.

A review of the record shows that the defendant was accorded full and effective representation at his preliminary examination. Counsel fully participated in the examination, raising timely objections and cross-examining the prosecution witness. Counsel performed at least as well as a lawyer with ordinary training and skill in the criminal law. See People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976). He did not sacrifice the interest of the defendant in any manner.

The defendant next argues that he was denied the effective assistance of counsel as the result of substituted counsel’s failure to raise an assertedly substantial defense. We disagree.

In case # 7-212, one Gary Chimel had been arrested on charges relating to the purchase of marijuana from the defendant on or about August 14, 1978. At the request of the police, Chimel, on August 21, 1978, telephoned the defendant and inquired whether he had any additional marijuana for sale. The defendant , replied that he had and a sale was arranged. Approximately 1/2 to 1 hour later, a sheriffs deputy arrived at the defendant’s residence, executed a search warrant and arrested the defendant. The information obtained in the telephone conversation served as the basis for the search warrant.

The defendant maintains that Chimel, as an agent of the police, was required to give the defendant Miranda warnings prior to asking whether he had marijuana for sale, that the failure to give the warnings prevented the information that was obtained from serving as the basis for the search warrant and that the failure to raise this defense constituted ineffective assistance of counsel.

Defense counsel must assert all substantial defenses available to the defendant in a timely and proper manner. Beasley v United States, 491 F2d 687 (CA 6, 1974). The question presented is whether the defense which counsel failed to raise was a substantial one. The answer is that it was not.

Under the facts of the present case, the Miranda warnings were not required. The defendant was neither in custody nor even confronted by a police officer. There were present none of the elements of compulsion or coercion which trigger the requirement that Miranda warnings be given. The incriminating statement was made freely and voluntarily. See People v Konke, 83 Mich App 356, 358-359; 268 NW2d 42 (1978). Accordingly, the claimed defense was not a defense in fact, let alone a substantial defense. The defendant was in no way deprived of the effective assistance of counsel as the result of his attorney’s failure to raise this matter in the lower court.

Affirmed.

       We note that the Court in McDonnell cites People v Kyllonen, 80 Mich App 327; 263 NW2d 55 (1977), as authority for this proposition. The citation is unwarranted. An examination of the opinion in Kyllonen discloses that the issue of the applicability of the guilty plea waiver doctrine was neither addressed nor decided. Kyllonen, supra, at 330, fn 1. We decide, however, that the rule as stated is correct notwithstanding such unwarranted reliance.

        Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).

       The fact that Chimel was an agent of the police does not alter this fact. See Hoffa v United States, 385 US 293; 87 S Ct 408; 17 L Ed 2d 374 (1966).


source: Caselaw Access Project

author: Mackenzie, J.

license: Public Domain

text:
    BERGY BROTHERS, INC v ZEELAND FEEDER PIG, INC
    Docket No. 77-2795.
    Submitted March 7, 1979, at Grand Rapids.
    Decided March 17, 1980.
    Leave to appeal applied for.
    Zeeland Feeder Pig, Inc., was incorporated in 1967 with George Spencer as an owner of 50 percent of the stock, a member of the board of directors, and president of the corporation. Annual reports were not filed for 1969, 1970, and 1971 and the state voided the corporate charter on May 15, 1971. In September, 1972 Spencer filed the delinquent reports and the corporation’s charter was reinstated. During the time in which the charter was void Spencer continued to carry on the business.
    Bergy Brothers, Inc. sold feed and supplies to Zeeland during the time when Zeeland’s charter was void and brought an action against Zeeland and against Spencer individually to recover amounts owing on account. The Ottawa Circuit Court, James E. Townsend, J., entered judgment in favor of the plaintiff against hoth defendants. Defendants appeal, alleging that the trial court erred in determining that the plaintiffs feed was purchased solely by Zeeland Feeder Pig, Inc. for corporate purposes, that Zeeland Feeder Pig, Inc. cannot be liable because the debt was incurred after the corporate charter was voided and before it was reinstated, and that Spencer should not be held personally liable for the indebtedness. Held:

    1. The trial court found that the feed purchased from Bergy, although delivered to several different sites, was all for the operations of Zeeland which was expanding in a manner which required placing pigs in locations other than the site where Zeeland was located. This finding was not clearly erroneous.
    2. Zeeland can be held liable for the debts incurred during the period in which its charter was void. The applicable statute provided that upon compliance with the requirements for filing, the charter was revived and all contracts entered into during the period of forfeiture became valid.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 841, 880, 884.
    [2] 3 Am Jur 2d, Agency §§ 69, 71, 72.
    19 Am Jur 2d, Corporations § 953, 1079, 1271.
    [3] 19 Am Jur 2d, Corporations § 1652.
    [4] 19 Am Jur 2d, Corporations §§ 56, 1646 et seq. ■

    [5] 18 Am Jur 2d, Corporations §§ 47 et seq., 1655.

    [6] 18 Am Jur 2d, Corporations §§ 1650-1652.

      3. Spencer, as half owner of a corporate business operating under a void charter, had the rights and duties of a general partner and may be held personally liable for business debts. The subsequent revival of the charter did not operate retroactively to terminate the personal liability incurred while the corporate charter was void.
    Affirmed.
    1. Appeal and Error — Findings of Fact — Clear Error.
    An appellate court will set aside the findings of fact of a trial court sitting without a jury only when such findings are clearly erroneous; a finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed, giving regard to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.
    2. Corporations — Contracts — Officers and Agents — Implied Powers — Reliance.
    A private corporation has the implied power to enter into any contract necessary to the conduct of its business and the accomplishment of its corporate purpose, and, in the absence of actual or constructive notice that an officer or agent of a corporation is expressly restricted in his power to act for the corporation, one dealing with an officer or agent who is apparently entrusted with management and control of the business has the right to rely on such officer’s or agent’s implied authority to contract in pursuance of the business of the corporation.
    3. Corporations — Contracts — Void Charter — Revival of Charter — Statutes.
    Contracts entered into by a corporation during a period of time after the corporate charter was voided by the state for failure to file annual reports and before the charter was revived upon filing of the delinquent reports became valid upon revival of the charter (MCL 450.432; MSA 21.248(2), now MCL 450.1925; MSA 21.200[925]).
    4. Corporations — Void Charter — Continuation of Business — General Partners.
    A 50 percent owner of a continuing corporate business operating under a charter which has been declared void has the rights and duties of a general partner.
    5. Corporations — Void Charter — Continuation of Business — Creditors’ Rights.
    A corporation, the charter of which has been voided for failure to file annual reports, is expressly prohibited from continuing in the operation of the business for which the corporation was organized, and where the principals of such a corporation continue to carry on the business the court will not impute a de facto corporate status in order to defeat the rights of creditors.
    6. Corporations — Void Charter — Officers — Individual Liability.
    The revival of a corporate charter which had been voided for failure to file annual reports does not terminate the individual liability of an officer of the corporation who continued the business of the corporation, incurring new liabilities, during the period of time in which the corporate charter was void.

      Landman, Hathaway, Latimer, Clink & Robb (by Jon D. Vander Ploeg), for plaintiff.

      Randolph McCarthy, Jr., for defendants.
    Before: R. B. Burns, P.J., and Allen and Mackenzie, JJ.
   Mackenzie, J.

The plaintiff filed suit in the Ottawa County Circuit Court to recover from the defendants, Zeeland Feeder Pig, Inc., a Michigan corporation, and George Spencer, individually, the sum of $45,119.53 as the balance of an account for feed sold to the defendant corporation by the plaintiff during the period August 10, 1971, to September 7, 1972. The trial court decided in the plaintiffs favor and entered a judgment of $45,119.53 plus interest against both defendants. Defendants appeal as of right.

Defendant Zeeland Feeder Pig, Inc., was duly incorporated on November 13, 1967. Defendant George Spencer and Cornelius Hoezee were the incorporators and each owned 50% of the capital stock. Upon incorporation, Spencer became a member of the board of directors, as well as president of the corporation. Hoezee was secretary-treasurer of the corporation and also a member of the board of directors. Richard Nagy was the third member of the board of directors, but owned no stock in the corporation.

Annual reports of the corporation for 1969, 1970, and 1971 were not filed, contrary to a requirement of the Michigan Corporation Act, MCL 450.82; MSA 21.82 (repealed, now MCL 450.1911; MSA 21.200[911]). Defendant Zeeland Feeder Pig’s charter was, therefore, voided by the State of Michigan as of May 15, 1971. On September 7, 1972, defendant Spencer filed the annual reports for the years 1969, 1970, 1971, and 1972 with the Department of Treasury for the State of Michigan, thereby reinstating the corporate charter.

I

Is defendant Zeeland Feeder Pig, Inc., liable to plaintiff for the debt alleged in the complaint?

Defendants contend that the trial judge’s determination that the plaintiffs feed was purchased solely by Zeeland Feeder Pig, Inc., for corporate purposes was not supported by sufficient evidence.

An appellate. court will set aside the findings of fact of a trial court sitting without a jury only when such findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Smith v Michigan State Accident Fund, 403 Mich 201; 267 NW2d 909 (1978). In making this determination, regard should be given to the special opportunity of the trial court to judge the credibility of those witnesses who appear before it. Ford v Howard, 59 Mich App 548; 229 NW2d 841 (1975).

A private corporation has the implied power to enter into any contract necessary to the conduct of its business and the accomplishment of its corporate purposes. One dealing with an officer or agent of a corporation who is apparently entrusted with general management and control of its business has the right to rely on such officer’s or agent’s implied authority to contract in the pursuance of the ordinary business of the corporation. There is no such right to rely if there is actual or constructive notice that the power to act for the corporation is expressly restricted, however. Mazanec v Gogebic Timber & Lumber Co, 313 Mich 117; 20 NW2d 832 (1945).

Defendants deny that all of the feed listed in the account was delivered to defendant corporation pursuant to the directions of its authorized agents and claim that feed was diverted to personal ventures of Cornelius Hoezee and Richard Nagy. Testimony at trial indicates that, commencing in the latter part of 1969, the corporation was expanding pig raising activities which required placing pigs in locations other than the on-site location of Zeeland Feeder Pig, Inc. Spencer denied knowledge of these activities, but there was testimony by Nagy and Willis Van Haitsma, a farm owner who engaged in raising hogs he believed for Zeeland Feeder Pig, Inc., that defendant Spencer took part in working out financial arrangements for purchasing hogs to raise on the Van Haitsma farm. At trial, Lawrence O’Mara, manager of plaintiff, testified that he dealt with Hoezee and Nagy as representatives of the defendant corporation, and that, although feed was delivered by plaintiff to various locations, it was all for operations of Zeeland Feeder Pig, Inc. Richard Nagy testified that neither he nor Hoezee intended to enter into a joint venture outside the scope of Zeeland Feeder Pig, Inc., and that the feed supplied by plaintiff was used only for pigs owned by the corporation.

The trial court determined that defendant corporation engaged in several operations on different sites. The court further determined that hog feed was delivered to several locations where defendant corporation was operating and that no part of the feed was used for other than corporate purposes. Upon examination of the record, we conclude that the trial court’s finding was supported by sufficient evidence and that its determination is not clearly erroneous.

Defendants also contend that Zeeland Feeder Pig, Inc., cannot be liable for the debt at issue because it was incurred after the corporate charter was voided but prior to the charter’s reinstatement.

Because the corporation’s annual reports for 1969, 1970, and 1971 were not filed, the corporate charter was voided as of May 15, 1971. See MCL 450.91; MSA 21.91. Pursuant to MCL 450.431; MSA 21.248(1), the charter was revived on September 7, 1972, after the delinquent reports were filed. The trial court held that the debt was legally incurred by the corporation, basing its ruling on MCL 450.432; MSA 21.248(2), now MCL 450.1925; MSA 21.200(925), which provide:

"Upon compliance with the provisions of this act, the rights of such corporation shall be the same as though no forfeiture had been operative and all contracts entered into during such intervals shall become valid.”

We agree with the holding of the trial court. See Shurlow Tile & Carpet, Inc v Dahlmann Building Co, 54 Mich App 180; 220 NW2d 732 (1974).

II

Is defendant George Spencer, individually, liable to plaintiff for the debt underlying the complaint?

The trial court held that defendant Spencer was jointly and severally personally liable as a corporate officer under MCL 450.87; MSA 21.87, which was in effect at the time, for debts of the corporation contracted during the period of its "neglect or refusal” to file annual corporate reports. The trial court also predicated individual liability of Spencer on breach of fiduciary duties as an officer and director pursuant to MCL 450.47; MSA 21.47, now MCL 450.1541; MSA 21.200(541), and, thirdly, found Spencer individually liable based on a partnership theory. We find personal liability on the partnership theory and accordingly will not consider the two statutory bases.

The trial court made the following pertinent findings of fact: Spencer had invested substantial amounts in defendant corporation and was its only president during its existence; his activity on behalf of the business was initially frequent and regular; prior to August 1, 1971, he had attempted to negotiate a transfer of his interest to Cornelius Hoezee and thereafter left the daily business operation to Hoezee and Nagy; the transfer to Hoezee was never consummated and Spencer actively reentered the operation of the business in August, 1972, after Hoezee became seriously ill; defendant Spencer was a part owner of the business from its inception on November 13, 1967, through September, 1972, and never thereafter terminated his ownership thereof through the time of trial.

We agree that Spencer, as 50% owner of a continuing corporate business operating under a void charter, had the rights and duties of a general partner. One engaging in business operations can expect to be personally liable for business debts; if an entrepreneur seeks to avoid personal liability and obtain privileges of corporate status, he must comply with the laws of the state pertaining to corporations. Defendant Spencer, president and one of two stockholders of the corporation, who initially had participated in the operation of the business, should not be able to avoid liability for debts incurred after the charter was permitted to expire.

The rights and powers of a corporation, the charter of which has been voided for failure to file annual reports, were defined in MCL 450.75; MSA 21.75. See Berry Door Corp v Tom McDonnell, Inc, 336 Mich 177; 57 NW2d 487 (1953). Such corporations are expressly prohibited from continuing in the operation of the business for which the corporation was organized.

The trial court relied upon Campbell v Rukamp, 260 Mich 43; 244 NW 222 (1932), a case differing factually in that the proposed corporation was never initially organized. In that case, conditions precedent to the achievement of corporate status were not met and the Court found the corporation never reached the state of being either a de .jure or a de facto corporation and, accordingly, could not exercise corporate powers or assert corporate rights. Although Zeeland Feeder Pig, Inc., was validly incorporated initially, it lost its de jure status by failure to meet conditions subsequent to incorporation when the charter was forfeited for failure to file annual reports.

Generally, a corporation failing to meet conditions subsequent to incorporation retains a de facto status which cannot be collaterally attacked by creditors. When, however, the corporate charter has been voided by the state and the principals continue to carry on the business for which the corporation was organized, we will not impute a de facto status to defeat the rights of creditors. That is not to say that a de facto status might not be imputed to Zeeland if the corporation were engaged in the dispositional activities authorized by MCL 450.75, particularly if this would protect third persons dealing with the entity.

The Supreme Court in Campbell stated, p 46:

" 'If a single individual assumes to act as a corporation and to contract as such, where there is no corporation either de jure or de facto, he will be individually liable on the contract; and individual liability will also attach to all of the stockholders or members of a pretended but nonexisting corporation on contracts entered into in its name if they have expressly or impliedly authorized the contract.’ 14 C.J. p 200.”

Spencer did nothing to keep the corporation in good standing nor did he follow through with an intention to disassociate himself from the business.

In other jurisdictions, principals of corporations continuing to do business after the forfeiture of the corporate charter and thereby incurring new indebtedness have been held personally liable to creditors.

In re Hare, 205 F Supp 881 (DC Md, 1962), is factually similar to the instant case in that the charter of Hare Bros., Inc., was forfeited for failure to pay annual franchise taxes and file annual reports. The operation of the business was continued and new indebtedness incurred following the forfeiture. The court stated, p 883:

"[1] Persons who continue business operations and incur debts in the name of a forfeited corporation, after forfeiture and prior to revival, are individually liable for such debts. This general principle is set forth in Guilford Builders Supply Co. v. Reynolds, 249 N.C. 612, 107 S.E. 2d 80, 83 (1959):

" 'Under certain circumstances, stockholders, officers and directors may be held liable as individuals or partners when such stockholders, officers and directors permit the charter of a corporation to expire, and continue to obtain credit for or on behalf of a purported but nonexistent corporation.’

"See also: 1 Mechem, Agency (1914 Ed.), § 1385, et seq. and Norton v. Supreme Fuel Sales Co., 72 F. Supp. 287 (D.C.N.J. 1947) and Studerus Oil Co. v. Bienfang, 122 N.J.L. 238, 4 A.2d 787 (1939), where officers and directors were held individually liable for contracting in the name of the forfeited corporation, when, at the time of trial, the charter had not yet been revived.”

The charter had not been revived in Hare and the court states that under Maryland law revival generally has the effect of absolving individuals who have contracted in the corporate name of their personal liability.

We decline to find that the revival of the charter by Spencer two weeks after suit was commenced terminated individual liability. There is no statutory authority making the revival retroactive as to personal liability which may be incurred while the corporate charter is suspended or finally declared "absolutely void, without any judicial proceedings whatsoever”. MCL 450.91; MSA 21.91.

We are aware that the corporation was insolvent at the time Spencer filed the delinquent reports and we believe the better policy is not to reward noncompliance with annual reporting requirements by the reinstatement of the corporate shield to defeat the rights of creditors.

Affirmed with costs awarded to plaintiff-appellee.

       "Failure to file report and/or pay fee; charter void; profit corporation; extension of time. If any profit corporation which has heretofore been, is now or may hereafter be required to file its annual report with and pay a privilege fee to the secretary of state, shall for 2 consecutive years neglect or refuse to file such report and/or to pay such fee, the charter of such corporation shall be absolutely void, without any judicial proceedings whatsoever, and such corporation shall be wound up in any manner provided by this act unless the secretary of state shall for good cause shown extend such fee as the case may be. In case of extension of time as provided in this section the secretary of state shall file in his office a certificate showing the length of time granted by such extension: Provided, That in no case shall the total extension of time granted be more than 1 year: And provided further, That such extension of time shall be granted prior to the expiration of the time fixed in section 82 of this act. The provisions of this act are hereby declared to be self-executing.” Repealed. For current provisions see MCL 450.1922, 450.1923; MSA 21.200(922), 21.200(923).

       "All profit corporations whose charters have become void under the provisions of section 91 of Act No. 327 of the Public Acts of 1931, being section 450.91 of the Compiled Laws of 1948, because of failure to file reports or to pay the fees may file such reports and pay such fees and may file annual reports and pay fees for every subsequent intervening year, plus 6% interest per annum and a penalty of 10% on all fees paid hereunder, prior to January 1, 1973. Upon acceptance and filing of such reports and the payment of such fees and all penalties, the voidance of charter of the corporation shall be waived, and it shall be revived in full force and effect.” Repealed. For current provisions, see MCL 450.1925; MSA 21.200(925).

       "All corporations whose charters shall have expired by limitation or dissolution or shall be annulled by forfeiture or in any other way or manner have become void shall nevertheless continue to be bodies corporate for the further term of 3 years from such expiration, dissolution or forfeiture for the purpose of prosecuting and defending suits for or against them and of enabling them gradually to settle and close their affairs and to dispose of and convey their property and to divide their assets; but not for the purpose of continuing the business for which the corporations were organized.” Repealed. For current provisions see MCL 450.1833, 450.1834; MSA 21.200(833), 21.200(834).

       19 Am Jur 2d, Corporations, § 1650, First National Bank of Boston v Silberstein, 398 SW2d 914 (Tex, 1966), Commercial National Bank of Council Bluffs v Gilinsky, 142 Iowa 178; 120 NW 476 (1909), In re Hare, 205 F Supp 881 (DC Md, 1962).


author: R. B. Burns, J.

text:
    MYERS v TOWNSHIP OF REDFORD (AFTER REMAND)
    Docket No. 77-2917.
    Submitted October 18, 1978, at Detroit.
    Decided March 17, 1980.
    Leave to appeal applied for.
    The Redford Township Police and Fire Civil Service Commission scheduled a competitive promotional examination for the offices of corporal and sergeant. The examination consisted of three parts, written, oral and performance rating. The written examination was taken by all applicants. Dwight Myers, Ronald Harding, Frank Howe, Patrick Falkner and Donald Moore failed to score a 70% or better grade in the written examination and were not permitted to take the oral examination or to be rated on their past performance. The Civil Service Commission required applicants to attain a score of 70% on the written examination in order to take the other parts. Myers and the other applicants petitioned for injunctive relief, Wayne Circuit Court, William J. Giovan, J. The trial court found that the 70% statutory requirement for basing grades should be applied to the entire testing procedure. Defendants appeal. On appeal, defendants maintain that the statute mandates that a 70% passing grade be set on the written examination. Plaintiffs contend that the statute requires an average grade of 70% on the combined scores of the three parts of the examination. Held:

    The 70% statutory grade requirement should apply to the entire examination and not to any of its individual parts. Each of the parts evaluates different aspects of the applicant’s merit. The examination as a whole is designed to accomplish what none of its individual parts can do, to evaluate the applicant’s total ability to meet the requirements of the sought-after position. The test, as a unit, completely encompasses the skills and abilities that the applicant must possess. The applicant’s performance on all portions of the test establishes a single score upon which the applicant’s standing should depend. Therefore, as none of the test parts, in itself, is an adequate determinant of the applicant’s merits, none should be considered to the exclusion of the others.

      Reference for Points in Headnote
    [1] 15A Am Jur 2d, Civil Service § 45.

      Affirmed.
    Municipal Corporations — Fire and Police Departments — Eligibility por Promotions — Civil Service Examinations — Multi-Part Examinations — Grade Average Requirement — Statutes.
    The minimum passing grade in civil service exartiinations for promotions in paid municipal fire and police departments is 70%, and this statutory requirement applies to the whole of the examination process and not to the individual parts; therefore, in a three-part examination, written, oral interview and performance factor, failure to obtain a 70% grade on the written part does not preclude being examined on the other two parts where it is possible to achieve an overall score of 70% if the oral examination were given and the efficiency rating applied because the examination as a whole is designed to accomplish what none of its individual parts can do, to evaluate the applicant’s total ability to meet the requirements of the sought-after position (MCL 38.511[a]; MSA 5.3361[a]).

      Cummings, McClorey, Davis & Acho, P.C., for defendants.
    Before: Beasley, P.J., and R. B. Burns and J. H. VanderWal, JJ.

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

   After Remand

R. B. Burns, J.

In this matter defendants, the Township of Redford and the Redford Township Fire and Police Civil Service Commission, had appealed from a Wayne County Circuit Court judgment ordering that the plaintiffs, members of the Redford Police Department who failed to score a passing grade on the written portion of an examination given to determine merit for promotion, be allowed to take the remaining portions of the test. Because the trial court’s findings of fact and cónelusions of law were unavailable, the matter was reversed and remanded. GCR 1963, 517.1. We retained jurisdiction.

In 1977, defendants scheduled a competitive examination to determine merit for promotion to the positions of corporal and sergeant. A written test made up 50% of the final grade, an oral interview 30%, and a performance factor 20%. The written test was given first and applicants who failed to score a grade of at least 70% were not permitted to take the oral examination or to be rated on their past performance.

MCL 38.511(a); MSA 5.3361(a) provides that the minimum passing grade for an examination given by defendant commission for positions in its paid fire and police departments shall be at least 70%. MCL 38.511(a); MSA 5.3361(a) reads in part:

"The civil service commission in each city, village or municipality, shall make rules providing for examinations of positions in the paid fire or police departments in each city, village or municipality under this act, for appointments, and for such other matters as are necessary to carry out the purposes of this act. The minimum passing grade for any examination shall be at least 70%.”

Defendants maintain that the statute mandates that a 70% passing grade be set on the written examination. Plaintiffs, on the other hand, argue that the statute requires an average grade of 70% on the combined scores of the three portions of the examination. Though none of the plaintiffs achieved a score of at least 70% on the written test, each of their scores was sufficient to make an overall score of 70% possible, if the oral examination were given and the efficiency rating applied.

The trial court agreed with the position advanced by plaintiffs and viewed the minimum 70% passing grade as intended to apply to the whole of the examination process. In a carefully reasoned opinion, the trial court noted the fundamental object of the statute and considered the meaning of the word "examination” as it is used in MCL 38.511; MSA 5.3361.

The trial court noted that the fundamental objective of the legislation is to cause appointments and promotions in municipal fire and police departments to be made on the basis of merit.

"On and after the date this act takes effect, appointments to and promotions in all paid fire and/or police departments of cities, villages or municipalities of any population whatsoever shall be made only according to qualifícations and fitness to be ascertained by examinations, which shall be competitive, and no person shall be appointed, reinstated, promoted or discharged as a paid member of said departments regardless of rank or position, in any fire or police department of any city, village or municipality in the state of Michigan, in any manner or by any means other than those prescribed in this act.” (Emphasis supplied by the trial court.) MCL 38.507; MSA 5.3357.

The trial court then stated:

"Promotions, then, are to be accomplished solely on the basis of 'qualifications and fitness’ and those qualities are to be determined by 'examinations’, the only word employed to describe the method of determining qualifications and fitness.”

The court then noted MCL 38.512(a); MSA 5.3362(a) which provides that:

"All examinations for positions shall be practical in their character and shall relate to such matters, and include such inquiries, as will fairly and fully test the comparative merit and fitness of the persons examined to discharge the duties of the employment sought by them.”

and the court therefore remarked that "the word 'examinations’ is meant to include not only written examinations, but all of the modes of determining 'qualifications and fitness’ for promotions”. (Emphasis in the original.)

Each of the three portions of the examination evaluates different aspects of the applicant’s merit. The examination as a whole is designed to accomplish what none of its individual parts can do, to evaluate the applicant’s total ability to meet the requirements of the sought-after position. The test, as a unit, completely encompasses the skills and abilities that the applicant must possess. As none of the test parts, in itself, is an adequate determinant of the applicant’s merit, none should be considered to the exclusion of the others. We believe, therefore, that the applicant’s performance on all portions of the test establishes a single score upon which the applicant’s standing should depend.

Affirmed. No costs, a public question being involved.

J. H. VanderWal, J., did not participate.

       In the opinion of the trial court, defendants’ position is apparently that the 70% statutory minimum passing' score applies only to the written portion of the examination. In defendants’ appellate brief we find indications that defendants read the statute to require a 70% passing grade on each portion of the test. Because we find that the trial court reached the correct decision, and that neither of the two positions advanced on defendants’ behalf is correct, we need not establish which position defendants actually have taken.


author: Danhof, C.J. Bronson, J.

text:
    PEOPLE v MASTEN
    Docket No. 77-3463.
    Submitted September 4, 1979, at Lansing.
    Decided March 17, 1980.
    Defendant, Jeffrey S. Masten, was convicted of attempting to procure an act of gross indecency in the Kent Circuit Court, John T. Letts, J. The evidence at trial indicated that defendant approached three police officers and offered to perform acts of fellatio for $25. When one of the officers asked him if he had a place to go, defendant replied that he did not, whereupon he was arrested. Defendant appeals. Held:

    1. Defendant alleged that the evidence was insufficient to show the proposition of a public act of gross indecency. That is immaterial because the gross indecency statute applies to both public and private conduct.
    2. Defendant also contended that the statute is unconstitutionally vague. The gross indecency statute, standing alone in the criminal statutes, fails to give adequate notice of the conduct proscribed, but the prior decisions of the courts of this state are ample to warn a defendant that attempting to procure the commission of a private act of fellatio between consenting adult males is prohibited. It penalizes conduct that is of such character that the common sense of society regards it as indecent and improper. It is not bereft of guidelines or unconstitutionally vague.
    Affirmed.
    Bronson, J., dissented. He would hold that "procuring” contemplates a three-party situation and that the procuring portion of the gross indecency statute in question only prohibits one male person from obtaining or attempting to obtain the services of a second male person for the commission of an act of gross indecency with a third male person; it does not cover a two-party situation.
    References for Points in Headnotes
    [1, 3] 50 Am Jur 2d, Lewdness, Indecency, and Obscenity, §§ 2, 17, 18.
    [2-4] 21 Am Jur 2d, Criminal Law § 17.
    73 Am Jur 2d, Statutes § 346.

      Opinion op the Court
    1. Criminal Law — Gross Indecency — Statutes.
    The gross indecency statute applies to both public and private conduct (MCL 750.338; MSA 28.570).
    2. Criminal Law — Gross Indecency — Statutes — Vagueness.
    The gross indecency statute, standing alone in the criminal statutes, fails to give adequate notice of the conduct proscribed, but the prior decisions of the courts of this state are ample to warn a defendant that attempting to procure the commission of a private act of fellatio between consenting adult males is prohibited (MCL 750.338; MSA 28.570).
    3. Criminal Law — Gross Indecency — Vagueness — Statutes.
    The gross indecency statute penalizes conduct that is of such character that the common sense of society regards it as indecent and improper; it is not bereft of guidelines or unconstitutionally vague (MCL 750.338; MSA 28.570). :
    Dissent by Bronson, J.
    4. Words and Phrases — Procure — Statutes — Gross Indecency Statute.

      Use of the term "procure” in the gross indecency statute should be construed to pertain to three-party situations only (MCL 750.338; MSA 28.570).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.

      Buth, Wood & Weidaw (by George S. Buth and Stephen M. Tuuk), for defendant.
    Before: Danhof, C.J., and Bronson and Beasley, JJ.
   Danhof, C.J.

The defendant was charged with attempting to procure an act of gross indecency, MCL 750.338; MSA 28.570. At his trial before the bench, the people’s evidence indicated that on the evening of August 6, 1976, the defendant approached three Grand Rapids police officers in the vicinity of that city’s Pantlind Hotel and offered to perform acts of fellatio for the sum of $25. One of the officers asked the defendant "if he had a place to go”. The defendant replied that he did not, and was arrested without further conversation. The defendant testified that his offer was the product of threats against him by three other men, who had instructed him to bring them the money he received for "hustling”. Upon conviction, a sentence of two to five years was imposed.

The defendant’s first claim on appeal challenges the sufficiency of the people’s evidence, arguing that the exchange between the arresting officers and himself was not adequate to show that he proposed to them the public commission of an "act of gross indecency”. This contention draws its legal force from the opinion in People v Howell, 396 Mich 16; 238 NW2d 148 (1976), in which three justices wrote:

"[We] construe the term 'act of gross indecency’ to prohibit oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public.” 396 Mich 16, 24.

The defendant is correct in his assessment of the proofs. His statement to the officers that he did not have a place to go for the performance of the acts he proposed does not show an offer to perform them in public. However, in arguing the meaning of the evidence, both the prosecution and the defendant mistake the precedential impact of the statutory construction offered in Howell.

Five and perhaps all six of the justices who sat in Howell concurred in the greater part of that opinion, while that portion of the opinion on which the defendant relies (section II, pp 22-24) did not receive the same degree of support. Two justices withheld their concurrence from section II completely; Justice Lindemer abandoned section II with respect to one defendant and apparently dissented from the opinion altogether as it applied to the other defendant in the case. Two panels of this Court have found that Howell’s section II announced no more than the law of that case. People v William Clark, 68 Mich App 48, 53, fn 1; 241 NW2d 756 (1976), People v Jones, 75 Mich App 261, 272, fn 5; 254 NW2d 863 (1977). Without the limitations set forth in Howell’s section II, the gross indecency statute operates by its terms to control both public and private conduct. Thus, the defendant cannot profit from the people’s failure to show a proposal of a public sexual act.

The defendant’s principal attack on his conviction consists of a claim that the gross indecency statute is unconstitutionally vague, insufficiently apprising potential offenders of the conduct that it proscribes. In this connection, People v Howell, supra, is of substantial import, for with the support of at least five justices it resolved a similar claim by the application of an analysis that is binding on this Court and well fitted for use in the case at bar.

The Howell Court utilized the "specific conduct” approach illustrated in United States v National Dairy Products Corp, 372 US 29; 83 S Ct 594; 9 L Ed 2d 561 (1963). That case indicates that an enactment that is too vague to disclose every case in which it might apply may properly form the basis of a prosecution for a particular act that is clearly and fairly within its meaning. The focus of this analysis is on the conduct charged rather than the precision of the legislative drafting. The possibility of indecision or unfair application at the periphery of the statute’s meaning does not preclude its use when uncertainty or surprise as to a particular act does not fairly arise. The Howell majority also approved the principles employed in Wainwright v Stone, 414 US 21; 94 S Ct 190; 38 L Ed 2d 179 (1973), and Rose v Locke, 423 US 48; 96 S Ct 243; 46 L Ed 2d 185 (1975). These cases, seeking to define what sources may supply the notice a statute affords, recognized judicial construction and comment as a logical and proper adjunct to the language of statutory enactments. Rose demonstrated that if the case law fairly supplies adequate warning of the statute’s potential effect, the absence of a holding directly on point will not serve to relieve a defendant of his criminal liability.

Addressing the Howell defendant’s attacks on the gross indecency statute, the Supreme Court held that while the statute itself could not have warned the defendants that the acts charged against them (fellatio by force and with a child) were illegal, the fact that it had "long been applied” to those acts adequately forewarned them of the possible consequences.

All that remains in evaluating the defendant’s "fair warning” claim is the application of the Howell analysis to the present conviction for attempting to procure the commission of a private act of fellatio between consenting adult males. We have little difficulty in determining that the decisions of this Court were ample to warn the defendant that his conduct was illegal. That the statute would be applied when prohibited sexual acts occurred in private and with the consent of the participants was announced by People v McCaleb, 37 Mich App 502; 195 NW2d 17 (1972) (applying the substantially identical provisions of MCL 750.338[b]; MSA 28.570[2]), and People v Livermore, 9 Mich App 47; 155 NW2d 711 (1967) (in which another nearly identical provision, MCL 750.338[a]; MSA 28.570[1] was applied). Acts of fellatio were said to be within the statute’s reach in People v Schmitt, 275 Mich 575, 577-578; 267 NW 741 (1936), and People v McCaleb, supra. In People v Dexter, 6 Mich App 247; 148 NW2d 915 (1967), this statute was held to allow prosecution on a charge of attempting to induce a male adult to engage in fellatio with the male defendant in a private place.

A statute may be void for vagueness if it "confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed”. People v Howell, supra, 20, citing Grayned v City of Rockford, 408 US 104; 92 S Ct 2294; 33 L Ed 2d 222 (1972). It is the defendant’s claim that the gross indecency statute permits that improper exercise of discretion by failing to enumerate the acts to which it applies.

In People v Dexter, supra, the same argument was advanced and rejected by this Court:

"Statutes of the indecent liberties or gross indecency type penalize 'conduct that is of such character that the common sense of society regards it as indecent and improper’. People v Szymanski (1948), 321 Mich 248, 252. The gross indecency statute is not vague or bereft of guidelines.” 6 Mich App 247, 253.

The Supreme Court addressed Dexter and left it untouched in Howell’s section II, supra. Thus, we regard Dexter’s application of the Szymanski decision as controlling in the case at bar.

We cannot find it within the judicial purview to measure the "common sense of society” or to produce a "construction” of this extremely general statute so as to insulate particular classes of sexual conduct from criminal liability. Nevertheless, one aspect of Howell’s section II cannot be ignored. The justices’ removal of private consensual sexual acts from tíie statute’s reach reflected not only their doubts as to the values of the society but a concern for constitutionally protected privacy rights as well; their proposed construction of the statute wholly avoided the necessity of confronting that issue. 396 Mich 16, 24, fn 10. The belief that private sexual conduct is not a matter of state concern is not an irrational one. However, our function here is simply to determine whether, with respect to the conduct we have seen to be affected by this legislative enactment, that concern enjoys constitutional foundation. The Supreme Court of the United States has indicated that it does not. Doe v Commonwealth’s Attorney for the City of Richmond, 403 F Supp 1199 (ED Va, 1975), aff’d 425 US 901; 96 S Ct 1489; 47 L Ed 2d 751 (1976).

Affirmed.

Beasley, J., concurred.

Bronson, J.

(dissenting). I must respectfully dissent from the opinion of my colleagues. The majority opinion fails to adequately address defendant’s claim that the statute under which he was charged is inapplicable to the facts of his case as established at trial. Careful consideration of this issue convinces me that defendant’s conviction must be reversed.

The statute under which defendant was charged and convicted reads in part:

"Any male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty ofa felony * * MCL 750.338; MSA 28.570 (emphasis added).

The information specifically charged defendant under the emphasized portion of the statute. As he did in the trial court, defendant asserts on appeal that the Legislature’s use of the word "procure” means that the statute contemplates a three-party situation; that is, that the intent is to punish a "male person” who obtains the services of a second "male person” for the commission of . an act of gross indecency with a third "male person”. He asserts that since the facts established at trial revealed only a two-party situation (or a series of two-party situations), the prosecution did not sufficiently establish its case under the statute.

The dictionary definition of "procure” is helpful to the extent that it does not absolutely rule out either possibility:

"PROCURE. To initiate a proceeding; to cause a thing to be done; to instigate; to contrive, bring about, effect, or cause. * * * To persuade, induce, prevail upon, or cause. * * * To obtain, as intoxicating liquor, for another. * * * To find or introduce; — said of a broker who obtains a customer. * * * To bring the seller and the buyer together so that the seller has an opportunity to sell. * * *.” Black’s Law Dictionary (4th ed), p 1373.

The definition of "procurer”, however, goes further in supporting defendant’s claim:

"PROCURER. One who procures for another the gratification of his lusts; a pimp; a panderer; one who solicits trade for a prostitute or lewd woman. * * * One that procures the seduction or prostitution of girls * * * 55 Similarly, the Latin procurare and procuratio means to take care of another’s affairs in an agency-type relationship. In French law, a procureur was an attorney, in fact or at law, who acted on behalf of another. A "procuration” refers to an agency or proxy. Clearly these terms all refer to a process by which one person deals with others on behalf of a third.

The circumstances under which the word "procure” is used in other statutes concerning sex-related offenses in Michigan also supports a conclusion that use of the term implies a three-party setting. Outside of the three gross indecency statutes, the Legislature chose to use the word "procure” in only two other statutes regulating sexual behavior. MCL 750.455; MSA 28.710, the pandering statute, seeks to punish "[a]ny person who shall procure a female inmate for a house of prostitution * * Similarly, MCL 750.456; MSA 28.711 makes it a crime for a man to place his wife in a house of prostitution, but it goes further and equally punishes one who "procures any other person to place or leave his wife in a house of prostitution * * Both of these statutes specifically use the word "procure” to describe a three-party situation.

There is little case law in Michigan to aid in the determination of this issue. In People v Johnson, 260 Mich 117, 119; 244 NW 251 (1932), the Supreme Court affirmed the conviction of a woman convicted under the pandering statute and held that "[t]he word procure, as used in the [pandering] statute, means to acquire or to get”. There was no need to go further, as the pandering statute already contemplates the ultimate involvement of more than two parties. It is true that this Court has upheld a conviction for an attempt to procure an act of gross indecency under the statute in circumstances revealing only a two-party situation, but the Court did not address the applicability of the statute to such a setting, and the issue may not have been raised by the defendant. People v Dexter, 6 Mich App 247; 148 NW2d 915 (1967).

Reference to the text,of the statute itself supports the view that when making use of the term "procure” the Legislature envisioned a three-party situation. The statute proscribes essentially two types of conduct: (1) the actual commission of an act of gross indecency (including one who is a "party to the commission”), and (2) the actual procuring or attempt to procure an act of gross indecency. If "procure” means, at the least, "to acquire or to get”, People v Johnson, supra, then one who "procures” an act of gross indecency for himself has acquired the act for himself and, as such, has committed or been the party to the commission of the act. In short, construing the statute to be applicable to two-party transactions would make the statute redundant. Interpreting the procuring section of the statute to mean acquiring for another removes the redundancy and gives that section of the statute its own meaning.

This interpretation of the statute finds support in the Supreme Court’s decision in People v Loveday, 390 Mich 711; 212 NW2d 708 (1973). Loveday involved a charge under the provisions of a statute analogous to the one under which defendant in the instant case is charged. MCL 750.338b; MSA 28.570(2) (gross indecency between male and female). It proscribes with almost identical language the same two types of conduct prohibited by the gross indecency between males statute, described above. The defendant in Loveday pled guilty to a charge of attempted gross indecency, and was given a maximum sentence of five years. The Court noted that the gross indecency statute does not separately punish the attempt to commit an act of gross indecency and held accordingly that a defendant convicted of such an attempt cannot be sentenced to the five-year maximum provided by the statute, but only to the two and one-half year maximum allowed by the attempt statute. The prosecution argued that defendant could nevertheless receive the five-year maximum sentence because his acts constituted an attempt to procure an act of gross indecency which is specifically mentioned in the statute. The Court rejected this position as "untenable”. While the specific grounds of rejection were that defendant had never been charged with an attempt to procure, inherent in the Court’s decision is the fact that procuring and committing are not the same thing. If the attempt to procure may be punished in a greater manner than the attempt to commit (or, presumably, the attempt to be a party to the commission), the two must be distinguishable, and because "procure” means, at least, to get or to acquire, the inescapable conclusion is that in the setting of this statute procure means to get or to acquire an act of gross indecency other than for oneself.

The trial court took the position that an "attempt to procure” was essentially the same thing as an "attempt to solicit”. This of course cannot precisely be so, as there can be no such crime as an attempt to solicit. People v Richard Banks, 51 Mich App 685; 216 NW2d 461 (1974), lv den 392 Mich 765 (1974). A solicitation is complete when one speaks the words or makes the gestures intended to result in a sexual act. MCL 750.448; MSA 28.703. If the term procure is construed to encompass a two-party situation, then it is arguable that an "attempt to procure” is the same as a "solicitation”. This observation lends additional support to the argument that the word procure applies to three-party situations. The term "solicitation” unquestionably refers to a two-party situation. Because the Legislature has decided to punish in one section of the penal code what is unquestionably a two-party transaction by using the term solicitation, and in other sections has decided to punish what is unquestionably a three-party transaction by using the term "procure”, use of the term "procure” in the gross indecency statute should be construed to pertain to three-party situations. It is apparent that the ordinary use of the word "procure” in the context of sexual activity means the facilitation of sexual activity between two other individuals. See People v Samuel Lee, 66 Mich App 5, 8; 238 NW2d 397 (1975).

I would reverse.

       "Any male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2,500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life.”

       "Cavanagh, C.J., and Williams, J., concurred with Levin, J.
      "The undersigned concur in this opinion with the exception of section II:
      "Coleman and Fitzgerald, JJ.; Lindemer, J., as to Helzer only.
      "Ryan, J., took no part in the decision of this case.” 396 Mich 16, 29.

       We observe that the compilers of the Michigan Criminal Jury Instructions have concluded that the enigmatic array of concurrences in Howell created section II as precedent "binding on the Court of Appeals * * * until overruled” under the rule of Negri v Slotkin, 397 Mich 105, 110; 244 NW2d 98 (1976). III CJI, Commentary, p 20-104.

        National Dairy held that the sale of goods below cost for the purpose of destroying competition was a potential charge adequately announced by the Robinson-Patman act, which proscribes the selling of goods at "unreasonably low prices for the purpose of destroying competition or eliminating a competitor,” 15 USC 13a.

       The Court cited no examples of the history to which it referred. The fact that it found that citation unnecessary confirms a point that is implicit in the reasoning of Wainwright, supra: It is not crucial to a "fair warning” analysis that the judicial pronouncements said to give that warning be of any particular age. Both statutes and judicial opinions give notice of their contents when they are published. The "long” application noted in Howell simply reduced the vitality of an already inadequate constitutional attack.

       Because the statute does not attach any significance to the transfer of money in connection with the acts it proscribes, we conclude that the commercial aspect of the defendant’s proposition to the officers has no significance.

        Dexter also implicitly held that "procuring” an act of gross indecency may occur when a defendant proposes that he and another person engage in prohibited conduct. Contrary to the defendant’s assertion, the meaning of the term "procure” is not limited to situations in which one person attempts to induce an illegal act involving two or more other persons.

       See majority opinion, footnote 7.

       MCL 750.338; MSA 28.570 (gross indecency between males), MCL 750.338a; MSA 28.570(1) (gross indecency between females), MCL 750.338b; MSA 28.570(2) (gross indecency between male and female).

       MCL 750.92; MSA 28.287.