James v. Sweet

Nov 13, 1900
Reporters:
, ,
Before:
Grant
Grant, J.

(after stating the facts). We affirm the direction of the court. There was no dispute as to the facts, the defendants putting in no testimony.

1. This ordinance had been in force for some time. Some persons had paid the license fees required, and complaints had been made against others. Mr. Sweet made the complaint after consultation with the mayor, and after plaintiff, the mayor, and Sweet had had one or more conferences about ‍‌‌‌​​‌​​​‌‌​​​‌‌​‌​‌​‌​​​​​‌​‌‌‌‌​‌​​​​​​​‌‌​‌​​​​‌‌‌‌‌‌​​​‌​​‌​‌‌​​​‌​​​​​​​‌​‌‌‌​‌​‌​‌‌‌‌​‌​​​‍the matter. The mayor informed plaintiff and his partners, who had taken a lease of the store for only two months, that if they paid their license, and afterwards became taxpayers, the money would be refunded, and also suggested that they might give a bond instead of paying the money. Plaintiff was not put under any restraint whatever until after he was convicted. He then,. after consultation with, and by the advice of, his attorney, went with the officer to jail about 5 o’clockp. m., where he remained overnight, appealed his case the next morning, and was discharged. At the jail he was not treated like a prisoner, but was provided with a good room and bed, and ate his meals with the sheriff. He was urged to appeal his case before commitment; and thus avoid confinement. After his nominal arrest, Mr. ‍‌‌‌​​‌​​​‌‌​​​‌‌​‌​‌​‌​​​​​‌​‌‌‌‌​‌​​​​​​​‌‌​‌​​​​‌‌‌‌‌‌​​​‌​​‌​‌‌​​​‌​​​​​​​‌​‌‌‌​‌​‌​‌‌‌‌​‌​​​‍Sweet *136applied to the city attorney to prosecute the case. The city attorney declined, giving as his reason that, in his opinion, the ordinance was void, under the case of City of Saginaw v. Saginaw Circuit Judge, 106 Mich. 32 (63 N. W. 985). He advised Mr. Sweet not to proceed with the prosecution, but to have the case dismissed, unless he obtained a bond of indemnity. The leading business men of the city were anxious’ to have the ordinance tested, and 19 of them executed to Mr. Sweet a bond for that purpose, drawn by the city attorney. Among them were the defendants Reinhardt, Mack, Goodspeed, and Wagner. Two of the business citizens called upon the city attorney, and he told them that, if some good lawyer in the city would give his opinion that the ordinance was good, he would contribute towards prosecuting it. Mr. A. J. ‍‌‌‌​​‌​​​‌‌​​​‌‌​‌​‌​‌​​​​​‌​‌‌‌‌​‌​​​​​​​‌‌​‌​​​​‌‌‌‌‌‌​​​‌​​‌​‌‌​​​‌​​​​​​​‌​‌‌‌​‌​‌​‌‌‌‌​‌​​​‍Sawyer, an attorney of experience and ability, was consulted, and gave his advice that the ordinance was good, and that the Saginaw Case did not apply. The trial then proceeded. The attorney representing the city asked for a jury trial. Plaintiff was represented by an attorney, and introduced no testimony. The principal defense evidently was the invalidity of the ordinance. The jury was summoned by a constable who was called for that purpose by Mr. Sweet, who told him that this was a business men’s suit, and he wanted him to get business men upon the jury.

Counsel for plaintiff claim that there was a conspiracy on the part of the defendants and other business men to prosecute and convict the plaintiff. We need not set forth the testimony. It is sufficient to say that we find no evidence of any conspiracy, or any attempt ‍‌‌‌​​‌​​​‌‌​​​‌‌​‌​‌​‌​​​​​‌​‌‌‌‌​‌​​​​​​​‌‌​‌​​​​‌‌‌‌‌‌​​​‌​​‌​‌‌​​​‌​​​​​​​‌​‌‌‌​‌​‌​‌‌‌‌​‌​​​‍to deal unfairly or oppressively with the plaintiff. ’ The fact that the city attorney had advised that the ordinance was void was not evidence of malice, or of want of probable cause. Citizens and the city officers were justified in taking proceedings to have the validity of the ordinance determined in the courts, and, so long as they did not act maliciously or oppressively, the law protected them in so doing; other*137wise an attorney might close the courts to the determination of these questions, unless some official was willing to run the risk of a suit for false imprisonment or malicious prosecution. The plaintiff was treated with the utmost consideration by all concerned, and there is no testimony tending to show that these defendants or other citizens acted from malice. Rogers v. Olds, 117 Mich. 368 (75 N. W. 933); Tillman v. Beard, 121 Mich. 475 (80 N. W. 248); Brooks v. Mangan, 86 Mich. ‍‌‌‌​​‌​​​‌‌​​​‌‌​‌​‌​‌​​​​​‌​‌‌‌‌​‌​​​​​​​‌‌​‌​​​​‌‌‌‌‌‌​​​‌​​‌​‌‌​​​‌​​​​​​​‌​‌‌‌​‌​‌​‌‌‌‌​‌​​​‍576 (49 N. W. 633, 24 Am. St. Rep. 137).

2. It is unnecessary to discuss the ordinance. It differs from that in the Saginaw Case very materially, in that this ordinance applies to residents and nonresidents alike,’ while the Saginaw ordinance was aimed at nonresidents alone, and for that reason was held void. The reasonableness of the license fee was not decided.

Judgment affirmed.

Hooker, Moore, and Long, JJ., concurred. Montgomery, C. J., took no part in the decision.