(dissenting). The pertinent facts of this case parallel those of People v. Ward (1961), 364 Mich 671. Our decision in that case would be dispositive of this but for the fact that decision in Ward was by equal division of a bobtailed* Court. In view of that fact and of the recent changes in our personnel, leave was granted in this case of Brown Brothers to resolve authoritatively the legal dispute which divided this Court in Ward.
Mr. Justice Kelly, having reviewed the opinion submitted by Mr. Chief Justice Dethmers in Ward, now subscribes (having abstained from participation in the Ward decision) to the Chief Justice’s view. That view was that legislative omission of a scienter requirement from the pertinent sections "of the statute here involved is not a sufficient manifestation of the legislature’s intent to hold criminally liable the owner or lessee of an overloaded motor vehicle operated on the public highways of this State absent his knowledge thereof.
My view remains as I expressed it in my opinion in People v. Ward, supra, pp 671-675. It may be summarized by quotation therefrom (p 673):
“The most superficial examination of the language of this subsection suggests that the legislature doubtless intended to make owners and lessees of overloaded trucks violators thereof upon mere showing of the fact of ownership or lease, plus, of course, the fact that the owned or leased truck has been apprehended on'a public highway with a load in excess *367of statutory limits. The offense charged is a misdemeanor. It is punishable only by a fine, calculated by multiplying the weighed overload by so many cents per pound graduated upward to the extent of such weighed overload. Proof of scienter is not made a requirement for proof of violation of this subsection. .Qur conclusion is substantiated by comparison of the language of subsection (c) with the language of subsections (d) and (f) of section 724.”
The references to subsections (d) and (f) of section' 724 were to illustrate the fact that when the legislature desired to require proof of scienter, it said so. Significantly, when scienter is made an felenient of an offense under section 724, and, as well, under section 716, a jail sentence as well as a fine is prescribed; in subsection (c) of section 724, however, where violation thereof does not depend upon proof of scienter, only a fine penalty is provided.
I would reverse and remand for further proceedings,' but without costs.
Black ' and' O’Hara, JJ., concurred with Souris, J.Only six of the eight Justices of the Court participated in the decision of People v. Ward.