135 Mich. 485 | Mich. | 1904
Lead Opinion
The conceded facts in this cause are substantially as follows: Alta Farr, the relator, is the wife of R. B. Farr, and is a resident of the village of Tustin. Upon-the 4th day of May last she filed a liquor bond, regular in form, with her husband, R. B. Farr, and one O. P. Engstrom, as sureties, who qualified as required by statute. The sureties are freeholders and residents of the village of Tustin. Respondents composed the village council of the village of Tustin. They held a meeting on the 4th day of May, when the said bond was taken up for consideration, but not approved. The council held another meeting May 8th, when the bond was again given some consideration, but was not approved. Relator then applied for and obtained from the circuit court of Osceola county an order requiring the council to meet and approve said bond, or show cause to the said circuit court why it refused
1. Has the common council acted in good faith in rejecting .the liquor bond of relator ?
2. Is the surety R. B. Farr worth in real estate situate within the county of Osceola the sum of $3,000 over and above all indebtedness, incumbrances, and exemptions from sale on executions ?
A hearing was had before the circuit judge, the witnesses appearing before him. There was testimony tending to show that the trustees had acted in bad faith, and that Mr. Farr was financially able to qualify as a surety. There was .testimony tending to show the converse of these propositions. The circuit judge found that the council had acted in bad faith, that Mr. Farr was financially qualified to be a surety, and directed that the bond be approved. His action is sought to be reviewed in this proceeding.
It is the claim of a majority of the trustees that they acted in good faith in rejecting this bond, and that there is no testimony upon which to base the finding of the court. We cannot agree with the contention of the trustees. It would not be profitable to detail the testimony, but, as before stated, there was testimony which, if believed, sustained the finding of the court that the council acted in bad faith in rejecting the bond.
It is also the claim of respondents that under the provisions of section 5386, 2 Comp. Laws, the judgment of the council as to the sufficiency of the bond is final. In support of this proposition they cite Divine v. Board of
Dissenting Opinion
(dissenting). This is a petition presented to the circuit court to compel the respondents, members of the common council of the village of Tustin, to approve relator’s liquor bond. The answer to the petition alleges that the respondents acted in good faith, and that the bond was rejected because of the insufficiency of Mr. Farr, one of the sureties. A replication was filed to the answer, and by the order of the court, against the objection and exception of the respondents, seven issues of fact were framed, as follows:
“1. Has the common council acted in good faith in rejecting the liquor bond of the relator?
“2. Is the surety R. B. Farr worth in real estate situated within the county of Osceola the sum of $3,000 over and above all indebtedness, incumbrances, and exemptions from sale on executions ?
“ 3. Was the bond of said relator referred to a committee on bonds, by the said common council, on the 4th day of May last ?
*489 “4. Was the said bond of relator rejected by the said common council on the 4th day of May last for the reason that relator, the principal in said bond, was a woman, and could not be a principal in a liquor bond ?
“5. Did the said common council vote on a motion to • approve the said bond of relator on the 8th day of May last?
“6. Did the said common council act in good faith on said bond of relator on the 1st day of June last, and reject the same for the reason of insufficiency of the sureties thereon ?
“ 7. Did the common council determine the sufficiency of the sureties on competent evidence ? ”
All the issues were answered in favor of relator. The sole issue, in any event, for the court to decide, was whether the respondents acted in good faith in determining the insufficiency of the surety. Questions 2, 3, 4, 5, and 7 were improper. The answer of either or all in favor of relator would not determine the bad faith of the respondents in finally voting to reject the bond on the ground of insufficiency of the surety. The respondents alone, under the law, are charged with the duty to determine the sufficiency of the bond. It was for them to determine whether the three parcels of land owned by bondsman Farr were worth $3,000 over and above his indebtedness, incumbrances, and exemptions. The testimony in this case is such as to show that the value of this property was a fair question of dispute, and depended upon the judgment of individuals. There is nothing in the testimony as to values to indicate of itself bad faith on the part of the respondents. Witnesses differed as to value. Some of them for relator made the property worth $5,500. The debts, one of which was secured by mortgage upon one parcel of the land, amounted to $1,040. The homestead exemption would leave the property worth little, if any, more than the required amount, under the highest estimate. The evidence on the part of the respondents showed its value much less than that required by the statute. The assessment roll showed the value of the three
It was said in the majority opinion in Parker v. Board of Trustees of Portland, 54 Mich. 308 (20 N. W. 55), that:
“This duty necessarily invests the board with large discretionary power. The things which will create a •liability on the bond, if they ever exist, are to arise in the future; and it is to guard against these future contingencies, and to secure future responsibility for an injured party where a breach occurs, that the bond is made to provide. It will be noticed that the statute not only requires, that the sureties shall justify, but that the sufficiency of the bond shall be determined by the board, which evidently includes something more than simply ascertaining the amount of property the sureties are worth.”
In an opinion written by the late Justice Long, and concurred in by the entire court, it was said that this duty “ is something more than ministerial; it is the exercise of judgment and discretion.” Amperse v. Winslow, 75 Mich. 234 (42 N. W. 823). This judgment and discretion
The officers are not bound by the evidence, competent or incompetent, that is produced before them. They may investigate themselves, and exercise their own knowledge and judgment as to the value of the property. The respondents in this case knew the property, and were competent to determine its value. The examination to be made by these officers does not require the consideration only of “competent evidence,” according to the rules of evidence in a suit at law, yet that seems to be the requirement of the seventh question. It was said in Palmer v. President, etc., of Village of Hartford, 73 Mich. 96 (40 N. W. 850):
“They [the president and trustees of the village] may investigate the facts for themselves, using their own knowledge, or any other evidence that may satisfy them upon the question.”
It was wholly immaterial whether this bond was referred to a committee of the council, or whether it was once rejected for the reason that the principal was a woman, and therefore disqualified to carry on a saloon. Men unfamiliar with the statute might very naturally and properly raise this question. The fact that the respondents raised it — and I find no evidence that it was raised in bad faith — does not determine their bad faith in after-wards rejecting the bond for insufficiency of sureties. So whether they voted on a motion to approve the bond at any other time was immaterial. This disposes of all the special issues except that as to the good faith in rejecting the bond.
The testimony in this case covers 209 typewritten pages, and a large part of it is devoted to testimony as to the value of the land. And the briefs of counsel are largely occupied with the testimony upon this question, claiming that it shows bad faith of the respondents. Where testimony taken before the board showed a value of $7,500,
“ The statute does not confer upon the court the right to review the accuracy of the conclusion reached as to the financial standing of the sureties offered upon liquor bonds.”
True, it was there said that the court might determine whether a board has acted in good faith or arbitrarily in disapproving a bond. No case has yet decided that the court may determine the disputed question of fact as to the sufficiency of the sureties, even if the officers have . acted arbitrarily. If, in this case, the respondents had refused to approve the bond for the reason that the principal
It is claimed on the part of the relator that some of the respondents made certain statements hostile to relator’s husband, One of the bondsmen, and that these statements tend to show arbitrary action on the part of the respondents. It is due to the respondents to say that they deny all such statements, both in their answer and under oath. May a court take these statements, even if found to be made, as evidence of bad faith, where there is a reasonable dispute as to the value of the property ? I think not. There is the same difference as to value in this case that there was in the Divine Case. The only difference between the two cases is that in the one case it comes before us on issues made and determined by the circuit judge, while in the Divine Case it came before the court without the intervention of framing the issues. In Bailey v. Van Buren Circuit Judge, 128 Mich. 627 (87 N. W. 890), the good faith of the township board in refusing to accept the bond of a druggist was attacked, and the relator asked an issue to determine whether the board acted in good faith. Under an answer similar to that in this case, this court denied the application to permit such an issue. The return in that case, as in this, stated that the board were willing to accept a bond if the sureties were, in their honest judgment, financially responsible.
In the case of Briggs v. McKinley, 131 Mich. 154 (91 N. W. 156), a majority of the board approved the bond of a saloonkeeper, and it was claimed by a minority of the board — the relators — that they made no investigation, and passed no honest judgment; that the principal in the bond was in fact the bartender; that the principal bondsman was in fact the saloonkeeper; and that the bondsmen did not possess the necessary financial responsibility. In that case, as in this, it was charged that the respondents used
In my judgment, the relator failed to make a case of capricious and arbitrary conduct on the part of the respondents, and the judgment of the court below should be reversed, and the petition dismissed. If, however, it should be determined that the board did act arbitrarily, I think, for .the reasons above stated, the order of the court below should have been to remand the case, and direct the respondents to meet, investigate, and pass an honest judgment upon the sufficiency of the sureties.