O'Halloran v. Mayor of Jackson

107 Mich. 138 | Mich. | 1895

Long, J.

On June 8, 1895, the relators presented their liqour bond to the common council for approval. No question is made as to tbe form of tbe bond or tbe sufficiency of tbe sureties. The bond was referred to a committee, and tbe committee reported it back with a recommendation that it be approved. The report was not adopted, as 9 of tbe members voted in tbe negative and only 6 in tbe affirmative. There were 16 aldermen in all. At tbe same meeting of the council, with only 15 aldermen present, a motion to approve tbe bond was declared carried, S voting for approval and 7 against. These proceedings were referred to tbe mayor, who on June 24th returned tbe same with bis disapproval, giving certain reasons therefor. Demand was thereupon made upon tbe recorder of tbe city to certify tbe action of tbe council on the bond. This was refused. Relators thereupon filed a petition in tbe Jackson circuit court for a mandamus to compel tbe mayor to file bis approval of tbe bond, and tbe recorder to indorse upon tbe bond tbe approval of tbe council. The cause was beard in the circuit, and tbe prayer of tbe relators granted as to the recorder and tbe petition dismissed as to tbe mayor. Tbe case conies to tliis court by writ of certiorari.

It is tbe contention of relators (1) that the vote of eight to seven was sufficient, under tbe charter, to approve tbe bond; (2) that tbe common council is tbe final judge of tbe sufficiency of liqour bonds, and that nothing remains to be done, after tbe action of tbe council, to make tbe bond effective, but the indorsement of such action on tbe bond by tbe recorder of the city, who is tbe clerk of the council. On tbe other band, it is contended by counsel for respondents that, there being no ordinance of tbe city regulating tbe performance of the duty to approve liquor bonds, it could be performed only by action or resolution having tbe force of an ordinance, which under section 1, chap. 7, of tbe charter (Act No. 414, Local Acts 1889), required a majority vote of all tbe aldermen elected, and that therefore the bond was not approved. We think this contention cannot be sustained. No provision of tbe charter requires tbe approval of liquor bonds to be by general ordinance, and section 8 oí Act No. 318, Pub. Acts 1887, leaves tbe approval to tbe common council. A majority vote of tbe aldermen present may approve, a quoram being present. „

Tbe charter gives the common council tbe power to “regulate, prohibit, and suppress ale, beer, and porter bouses, and all places of resort for tippling and intemperance; ® to regulate and license all taverns and bouses of public entertainment; all saloons, restaurants, and eating-houses.’’ Local Acts 1889, Act No. 414, chap. 9, § 1. Tbe legislature may confer upon tbe common council the right to determine tbe places where saloons may be kept, and to determine that question upon each application. Sherlock v. Stuart, 96 Mich. 193. Under the charter, tbe common council consists of two aldermen from each ward, and tbe recorder, but tbe recorder has no vote therein. Section 1, chap. 6, of tbe charter. Tbe mayor is made the chief executive officer of tbe city, with certain powers in tbe charter enumerated. He has no vote or voice in tbe deliberations of tbe council, but tbe charter provides that no ordinance or resolution shall be of any force without the written approval of the mayor or other person performing for tbe time being tbe duties of his office, etc. Tbe approval of the bond cannot be said to have required an ordinance or resolution. It was approved by motion, which was carried by a majority vote. The liquor statute requires tbe approval of the council, and the charter has not so modified or changed tbe statute that the mayor’s approval was necessary.

Tbe court below was of tbe opinion that tbe approval of tbe mayor was unnecessary, and we think that conclusion correct. The petition was therefore dismissed as to tbe mayor, and tbe order was made requiring the recorder to indorse the approval of tbe council upon tbe bond. That order must be affirmed.

Tbe other Justices concurred.