Skinner v. Argentine Township Board

*536 SNOW, J. (after stating the facts). Act No. 97, Pub. Acts 1919, providing for the issuing of permits by township boards for conducting dance halls, etc., was declared by this court to be unconstitutional because it provided no method for making application, contained no qualifications for the applicant, provided no standard of fitness, made no provision as to the character of the structure to be used, and conferred “upon township boards the arbitrary power to grant or refuse a license, according to its whim or caprice.” See Devereaux v. Genesee Township Board, 211 Mich. 38. At the following session of the legislature the statute . here involved (Act No. 53, Pub. Acts 1921) was enacted. By this act it was attempted to remedy the objectionable features of the former one, and it is provided that: “No person shall be granted a permit under the provisions of this act who is under twenty-one years of age, and who has not resided within this State for a period of at least one year immediately prior to the application for such permit; nor shall any such permit be granted to any person who has been convicted of any crime involving moral turpitude, nor to any person whose general reputation in any community in which he has resided during the five years next preceding such application is that of a gambler, bootlegger, cheat or promoter of vice and immorality.” It also provides that: “The township board receiving such application, if presented in due form, shall pass upon the same at its next regular meeting, * * * and if satisfied that such applicant possesses the qualifications herein pre *537 scribed, shall grant such permit for the term of one year.” Always, then, the question to be determined, in the first instance, by the township board, is as to whether or not the applicant possesses the required statutory qualifications. But the board in deciding this cannot arbitrarily, maliciously, or capriciously refuse a permit, and whether it acts arbitrarily or in good faith is a proper matter for court review. Plaintiff’s first application was refused because the board determined “that the general reputation of the said Frank W. Skinner for morality is well known to the board, and that the board is satisfied that the said Frank W. Skinner, if license were granted, would conduct said place in a manner to be a menace to and inimicable to the public morals and good citizenship of the community.” Therefore, when he applied to the circuit court for a mandamus to compel the board to grant him a permit, he was entitled to have his qualifications passed upon in that proceeding, and to have a judicial determination of whether or not the township board had acted arbitrarily and in bad faith in making its finding and denying his application. That these matters were not determined was the fault of no one but himself. He filed no plea to the return and was not therefore entitled to dispute it. It was properly taken as true by the trial judge, who thereupon rendered judgment against him. We are thus confronted with the question as to the effect of this judgment upon the present proceedings. The doctrine of res judieata, is defined to be: “that an existing final judgment or decree rendered upon the merits, and without fraud or collusion, by a court of competent jurisdiction, upon a matter within its jurisdiction, is conclusive of the rights of the parties or their privies, in all other actions or suits *538 in the same or any other judicial tribunal of concurrent jurisdiction, on the points and matters in issue in the first suit.” 15 R. C. L. p. 950, § 429. These two actions were launched in the same court; the parties were the same; the subject-matter and relief sought were the same; the issue was the same; and the first judgment was rendered without fraud or collusion and upon the merits. That testimony of plaintiff’s qualifications was not received, as before stated, was because he accepted the return of the defendant as true. The fact that one’s pleadings in an action are such as to limit the scope of the trial by excluding certain testimony, does not rob the case of being tried “upon its merits.” For illustration, certain defenses may be made under a plea of the general issue only when special notice is given, but because such notice was not given and evidence of such defense was therefore barred, it could not well be claimed the case was not disposed of “on its merits.” Plaintiff’s mistake in pleading is admitted in his motion for a new trial, wherein one of the reasons given is that he “did not know at the time of trial and hearing of said petition and answer that on a trial of this kind the answer would be taken as true.” He should have known it, but because of his lack of knowledge, and his consequent failure to plead as he afterwards, desired, can it be said the judgment is any the less binding upon him? We think not. The doctrine of res judicata rests upon the principle that the same matter can be litigated but once, and it is said in 15 R. C. L. p. 953: “That when a right or fact has been judicially tried and determined by a court of competent jurisdiction, or an opportunity for such trial has been given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the parties, and those in privity with them in law or estate.” The issue, and the only one, in the first mandamus *539 proceeding, was precisely the issue, and the only one, in the present case, viz., whether or not the board acted arbitrarily in determining plaintiff was not qualified to receive a permit. In the first case this issue was tendered plaintiff by the return, and he admitted the return to be true. There was then no necessity for testimony. In the present case the issue was also tendered plaintiff by the return, and he denied the truth thereof. This necessitated the taking of proof. But in each case the issue was the same, and plaintiff is now estopped from again having it determined. Johnson v. Board of Sup'rs of Ionia Co., 202 Mich. 597; Hoffman v. Silverthorn, 137 Mich. 60. We have examined cases cited by plaintiff and find they are not in point. From the record we might conclude that permit was withheld from plaintiff without justifiable cause, and the trial court may have been right in so holding. But after judgment in a case in all respects identical, the court was clearly without further jurisdiction. The defendant township board may lawfully deny the plaintiff a permit or license to operate a soft drink emporium and public dance hall within its township for a period of one year from the date of his first application. The judgment reviewed is reversed, and the circuit court directed to enter one in favor of the defendant, but without costs as the case involves a matter of public moment. Sharpe, C. J., and Bird, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.