Power v. Common Council of Village of Litchfield

141 Mich. 350 | Mich. | 1905

Ostrander, J.

Relator, desiring to operate a bar or saloon in connection with his hotel, presented a bond to the common council of the village, in proper form, with two sureties. The bond was rejected. Thereupon he applied to the circuit court for the county of Hillsdale for the writ of mandamus to compel the acceptance of the bond. The court denied the writ, and his action is brought here by writ of certiorari for review.

By unanimous vote, the common council of the village had required saloon bonds to be in the sum of $6,000, with four sureties. The answer of the common council avers its good faith in the premises, and that,—

“The purpose of requiring four sureties was that the best possible results might be realized in said village in connection with the operation of a proposed saloon; that it was conceived by said common council that four responsible citizens of said village as sureties on said liquor bond would operate as a wholesome salutary restraint against "the well-known vicious tendencies of such places.”

The only question presented is whether the common council had authority to require more than two sureties upon the bond.

The statute (2 Comp. Laws, § 5386) requires as a condition precedent to the right to carry on the retail liquor business the execution and delivery to the county treasurer of a bond—

“The sufficiency of which shall be determined by the township board of the township, or the board of trustees, the council or common council of the village or city in which such business is proposed to be carried on, to the people of the State of Michigan, in the sum of not less than three thousand nor more than six thousand dollars, with two or more sufficient sureties, who shall be male residents and freeholders of the township, village or city in which such business is proposed to be carried on,” etc.

And sets out the form of the bond.

It is contended that, because the statute calls for two or more bondsmen, it is within the power of the common council to require more than two. We disagree with this contention. If the council has the power to require four sureties, it may require eight or ten, or more. The statute is in form a general law, and should not receive a construction which will make its operation variable. There must be at least two sureties, and we think that no more than two who are able to answer the statute conditions can be required. It is well known, however, that sureties upon official and other bonds sometimes prescribe as a condition for becoming sureties that either certain particular persons or a certain number of persons join in assuming the responsibility and liability imposed by the bond. It is the privilege of the principal in the bond required by this statute to present a bond having more than two sureties, so long as each of them is able to answer the statute requirements.. What is left to the municipal authority is the sufficiency of the bond tendered in compliance with the general law.

The opinion of the common council that the larger the number of bondsmen who are responsible the less likely would violations of the law occur is undoubtedly a sound one, which experience would approve. But there is involved in it more than the duty of determining the statute sufficiency of the particular bond. The declared purpose of the common council for requiring four sureties affirmatively establishes the fact that it has not attempted to determine, as the law requires it to do, the sufficiency of the bond tendered.

The finding that the council acted in good faith in determining whether relator had complied with the standard used is immaterial. If the bond is found to be otherwise sufficient, it should be approved.

The order is reversed.

Grant, Blair, Montgomery, and Hooker, JJ., concurred.