59 Mich. 8 | Mich. | 1886
Lead Opinion
On the seventeenth day of June, 1885, an alternative order was granted by this Court requiring respondents to approve the liquor bond presented to them for approval by relator, or to show cause why a peremptory mandamus should not issue to compel such approval. This order was made on a showing that the respondents had fixed the penalty for such bonds at_ $5,000 ; that relator, being engaged in the business of selling liquors, presented to respondents, on May 4, 1885, a bond in due form, signed by himself, and by Edwin Potter and Thomas Rainey, residents and freeholders of Homer, and having the statutory affidavit of justification; and that respondents refused to approve it, and gave .no reason, except the insufficiency of the justification. On the fifth of June he presented to them another bond, with the same sureties, and with an affidavit which not only contained the statutory averments of sufficiency, but also averred that they were residents and freeholders of the village. Upon this respondents refused to act, and adjourned without acting, and entered and gave no reasons for so doing. The petition avers every fact which would entitle the relator to do business, and shows the sufficiency and residence of the sureties; and states some things reported to have been said by particular trustees, one saying that relator was not the real owner of the business, and two saying that one of the sureties had not been a resident long enough. All of these pretenses relator denies, and appends to his petition several corroborating affidavits.
The official return of respondents gives no distinct reason why they did not approve the bond when presented, except that they thought they had some discretion which they should exercise for the public good; and avers that they
Instead of setting forth, as the order required them to do, the facts in their answer, which are supposed to justify them, certain individual affidavits are appended, which set out facts not so stated, and which are as follows: Trustee Bradley states that he understood and believed, but gives no facts or source of information, that Edwin Potter was the real owner of the business, and relator the colorable owner; and that there are rooms over the saloon which “ he has good reason to believe, and does believe, were usually kept open on Sundays, and liquor sold there and that while the matter of the approval of the bond was pending before the council, and to ascertain whether some accommodation could not be made, affiant asked relator if he would shut up the rooms Sunday, and obey the law by keeping his saloon shut at hours required by law, and relator replied he would not. This affidavit states no facts or sources of information, and does not show that these things wore considered bjr the common council. Two affiants, not members of the council, Henry H. Shear and Lewis Yinger, swear to their belief that though Rainey claims to be a resident of Homer, and rents a house there, he is really an outside resident. Their statements are not such as would be any legal evidence to that effect, and they were not made to the respondents, but are sworn to on July 29th, when all the other papers were dated, and when counsel gave notice of retainer for the defense.
Carr, Goodrich and Pratt, after some reference to the bond presented to the county treasurer in the previous year, which was approved by the council, and which has no bearing on this case, aver that in the early part of 1885, before the present fiscal year, relator was convicted of a violation of law in keeping his saloon open after nine o’clock. They state that they are acquainted with the real estate owned by Potter and Rainey, in their affidavits for justification, and consider it considerably exaggerated. No real estate was in
These appended affidavits, although not properly a part of the return, contain nothing whatever to show that Rainey and Edwin Potter are not, and have not been throughout, resident freeholders of sufficient responsibility to satisfy the statute. Ther.e is nothing in the return to show that the council supposed, or acted on the supposition, that they were not sufficient and eligible. No cause is shown, or attempted to be shown, in any responsible form, why the council did not, in the first place, or afterwards, when they received our order, approve the relator’s bond. Their conduct is reprehensively evasive, and open to censure.
The Legislature, and not the common council, has the right and has exercised the duty of determining on what terms liquor may be sold. It has made it lawful for any one residing in any place not within the village local option law, to carry on the business irpon paying to the county treasurer an annual tax, and filing with him a bond in the sum of not less than $3,000 nor more than $6,000, with two resident freeholders as sureties, who are required to justify in the form fixed by statute, and have the bond approved by the common council, or other local trustees. It'was not designed by the law that the lawfulness or unlawfulness of the traffic should be determined by a common council, or that the power to do business should depend on their pleasure. The statute itself has fixed the conditions, and nothing is left to the council except to pass upon the sufficiency of the sureties. But this is only so far within their discretion that
In our opinion, the conduct of respondents is oppressive and inexcusable, and involves a clear violation of the duties of their office; and the manner in which they have acted since the order to show cause was granted is very censurable. As we granted an order instead of an alternative writ, we cannot, in this proceeding, give any further redress than a peremptory mandamus and costs: Fletcher v. Kalamazoo Circuit Judge, 39 Mich. 301. It would not be proper to make any further suggestions on this hearing.
The writ is granted, with costs.
Dissenting Opinion
(dissenting). The relator is a resident of the village of Homer, in this State, and engaged in the business of selling liquor therein. By the statute no person, except druggists, is permitted to carry on such business without first executing and delivering to the county treasurer a bond in a sum of not less than $3,000, nor more than $6,000, “with two or more sufficient sureties, who shall be freeholders and residents of the township, village, or city in which the business is proposed to be carried on, each of whom shall justify in a sum equal to the amount of the bond, over and above all indebtedness, and all exemptions from sale on execution, and all liability on other and similar bonds.” The bond requires “ that he shall not, directly or indirectly, by himself, his clerk, agent, or servant, at any time, sell, furnish, give, or deliver any spirituous, malt,
The relator shows, by his petition, that the common council of the village of Homer, on the third of April, 1885, fixed the penalty of liquor bonds for the year ensuing at the sum of $5,000; that, desiring to carry on, or rather, continue, the business, the relator, on the fifth day of June, presented to the common council, while in session, his bond for that purpose, for approval in pursuance of the statute, signed by his brother and one Thomas Rainey, two reputable citizens, residents and freeholders in said village, as sureties thereon; that this bond was disapproved by the council for the reason stated that the affidavits of justification were insufficient; that at a subsequent meeting, held on the fifth day of June, the relator presented to the president, recorder, and trustees of the village a new bond, made and executed by himself, in the like 6um, and with the same sureties as before, and requested its approval by the common council, then in session; that said council has never approved or rejected said bond, and has taken no action thereon. The relator further states in his petition
“that the said sureties, and both of them, are actual residents of the said, village of Homer; that the said Edwin Potter has resided therein for over twenty years now last*16 past, and is a permanent resident thereof, having no other home, and having no intention of removing therefrom, to the knowledge or belief of your petitioner; that the said Thomas Rainey has within tiie past year removed from the township of Homer into the village of Homer, with the avowed intention of making said village his future permanent home, and he has no intention, to the knowledge or belief of your petitioner, of removing therefrom; that the property of said sureties consists principally of real estate, situated partly in said village of Homer, and partly in the township.of Homer, outside of said village, none of which is distant more than about five miles from said village; that neither of the sureties have any interest whatever in the business aforesaid of your petitioner, aside from their liability on the said bond, and that both of the said sureties are good, honest, and reputable citizens, and are both of them of unimpeachable reputation for integrity and veracity.”
Several affidavits accompany the petition of the relator which strongly corroborate the above statements regarding the character, standing, and pecuniary responsibility of the sureties, and further showing the petitioner to be a man of good reputation and habit, and upright and honest.
Upon the petition, made the thirteenth day of June, this Court issued an alternative order requiring the common council (the respondent) to approve the bond, or show cause why a peremptory mandamus should not be issued. The respondents have not approved the relator’s bond, but make a return to the writ, which is demurred to by relator’s counsel.
. The return, though somewhat informal, is not particularly objectionable upon that ground, and the exhibits and certified copies thereto annexed must be taken as part of the return, which is made by the president and recorder of the village, the writ having been directed to be served upon the president of the village. From the return, it appears that the first bond offered for approval was rejected, and the record of the proceedings of the council show that at the meeting of May 1st, when the bond was presented, no action was taken thereon, because of the insufficiency of the affidavit relating to the sufficiency of the sureties; that, at a
The president and recorder say as to these votes:'
“ They have no means of knowing, and do not know, the reasons of the said trustees individually for the several votes given by them, as there was no discussion, and no reasons were given at the time, but they cbelieve that the said trustees acted, conscientiously, and voted against the approval of said bond -on- account of their doubts of the sufficiency of said bond and the responsibility of the sureties therein; that the said trustees believed that they had some discretion in the matter of such approval, and that they ought to exercise it in such a manner as to protect the public interests committed to their charge; that the board were and always have been willing to accept a' good and sufficient bond, and are still willing to do so; and they have not acted oppressively and without cause.”
On the eighteenth day of May a new bond was made and executed, with the same sureties, and presented to the council for approval. In relation to the action taken upon this bond, the record of the council says:
“ Moved by trustee Higby that the bond be accepted and the sureties approved, but which motion received no support. Moved by trustee Chadwick that the bond be referred to a committee for investigation, but which motion received no support. Moved by trustee Carr that the bond be rejected, but which motion received no support; and there was no further action taken upon said bond.”
The president and recorder say in their return, in regard to this action,
“that at the meeting of the board on the fifth of June it was apparent that the adjournment was had without action on the bond, for the reason that the trustees desired further time for consideration, as two motions were made of an opposite character — one to approve of the bond and the other to reject it; and neither of said motions was supported, and therefore no vote was had upon either; that after the adjournment of the meeting, on June 5th, the*18 attorney of the relator took his bonds and affidavits, away from the possession of the board, and has not since appeared before them, or made any request or proposition in regard to the same; that the various motions by different trustees were made at the session of June 5th, in reference to said relator’s first bond.”
Without waiting for further action or deliberation, the relator applied for the writ in this case on the thirteenth day of June. The eommon council consisted of the president and six trustees.
The section of the statute requiring this bond provides that there shall be annexed to the bond
“an affidavit of each surety thereto, which affidavit shall state that the affiant is worth a sum equal to the amount of the bond, over and above all indebtedness and exemption from sale on execution, and all liability on other similar bonds; and if in the judgment of the township board, or the board of trustees, or common council of the village or city in which said business is proposed to be carried on, said sureties, or either of them, are not worth the full sum mentioned in said bond, over and above all their liabilities and exemptions, and liabilities on other similar bonds, they, the said township board, or board of trustees, or common council of the village or city, as the case may be; shall refuse to indorse said bond with their approval.”
From an examination of the statutes above referred to, it cannot fail to be noticed that two things are required to be passed upon before the bond can be approved. The first is the sufficiency of the bond ; and the second, the sufficiency of the sureties: both are included in the approval of the bond required. The statute gives the form for the bond; and under the first requirement above stated, it has been said that the statute is satisfied, and its conditions fully complied with, when the form is followed and the applicant’s affidavits of justification are attached to the bond. 1 am not able to concur in this view. I think this construction entirely too narrow. For instance, were the bond in strict compliance with the form given, and the sureties residents of the place with the principal, residing in homesteads of their own, worth a thousand dollars, and each owned $10,000
Now, the bond, with such sureties as I have supposed in all these cases, would be in compliance with the form and letter of the statute. It would be valid. The sureties in each instance would actually be worth the necessary amount of property, and each could make the affidavit of justification, but it would no more be a compliance with the spirit of the law or object of the statute than it would were the homesteads all the property, the sureties owned. It would be entirely insufficient, because the property of the sureties would be located beyond the limits of the operation of the statute, and a board which would approve such a bond would be held derelict indeed. The object of the law is twofold— first, to confine the sale of liquors to honest and responsible persons, to the end that the evils of intemperance may be avoided; second, to secure those who may suffer from violations of the law by those intrusted with the sale of liquors to the extent of the amount of the bond. Both of the objects would be completely defeated by accepting the bonds of
Under the second requirement — “the sufficiency of the sureties” — it is-claimed that where the relator presented his bond with sureties, with affidavits of justification attached as to their responsibility, it was then the duty of the board to indorse their approval. If this were so, only the form of the bond and affidavits would need to be passed upon before indorsing the required approval, but that is not the spirit or language of the statute. It requires the sufficiency of the sureties to be passed upon by the council after the bond has been presented to them, with the affidavits of the sureties as to their responsibility thereto attached. These sureties are required to be residents of the town, village or city where their principal proposes to carry on his business. This was undoubtedly for the purpose of more easily enabling the council to ascertain their pecuniary responsibility, because of their supposed familiarity with the sureties themselves, whether they are honest or dishonest; that they may know better how much credence to place upon their affidavits presented with the bond. If the council knew, or honestly believed, and had good reason for such belief, that the affidavits of the sureties were untrue — -that their property was worth less than the statutory requirement —it would undoubtedly be their duty to withhold their approval of the bond, in my judgment.
The violations of the statute which would give right of action to parties injured must necessarily arise in the future, and it may be a long time after the giving of the bond. This fact alone is sufficient to require close scrutiny as to the character of the sureties, the kind of property they own,
The relator avers that no legal reason exists in this case for withholding the approval of the board; that no reasonable or legal objection can be made against the sufficiency of his sureties; and that the action of the board, in withholding its approval of his bond, is unreasonable, caprieious, without cause or excuse, and oppressive. The bad motives attributed to the couueil are denied in the return; and it expressly appears therein that the council “ were and always have been willing to accept a good and sufficient bond,” and their disapproval of the relator’s bond was on account of the doubts the members of the council entertained of its sufficiency and
I think the record shows there was reason for careful investigation and scrutiny on the part of the council before taking action on the relator’s bond; particularly as they found they had been imposed upon in the year previous by him upon the same subject. They were entirely justified in taking sufficient time to investigate the matter of the sufficiency and responsibility of these sureties, to enable them to act with prudence. I do not think the council acted oppressively, or intended so to do, in the premises; nor do I discover in the record any evidence of caprice, or any other bad motive, or any faulty action, in the course pursued by the council. Neither do I discover any abuse of that discretion, which, in my judgment, it is not only their privilege, but their duty, to exercise under the statute.
It is true the return says that the council is willing, .and always have been, to approve a good and sufficient bond;
I think the writ should be denied, and costs allowed to respondents..
