Potter v. Common Council

Campbell, C. J. 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 [11] have always been ready to accept a good and sufficient bond, and have not acted oppressively. They say that, at the meeting of June 5, “it was apparent that the adjournment was had without action on the bonds 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 the motions was supported, and therefore no vote was had upon either.” It further avers that, after this meeting adjourned, relator took his bond away with him, and has not since appeared before them, or made any request or proposition in regard to it. It is further stated that while various motions were made, they do not appear on the records of the council, as they are not in the custom of entering any motions or resolutions that are not supported and voted on. The return has appended to it a copy of the council minutes, from which the following is all that appears: On April 3d the penalties of liquor bonds were fixed at $5,000. On May 1st it is recited that relator’s liquor bond was presented, but no action had, because of the insufficiency of the affidavit of justification. On the second and fourth days of May motions were made and lost to approve it. On June 5th the minutes state that, at a full meeting, relator’s bond with the sureties named, was presented by the president, and trustee Higby moved that the bond be accepted, which motion received no support. Trustee Goodrich moved to refer it to a committee, which motion received no support. Trustee Carr moved to reject it, which motion received no support. On June 22, 1885, the order of this Court was brought to the attention of the board. Trustee Andrews moved that action be taken on the bond, which prevailed. Trustee Higby moved to accept the bond. Mr. Andrews called for the yeas and nays. Mr. Allen, who is president, and Mr. Higby voted “aye.” Trustees Carr, Bradley, Pratt, Andrews, and Goodrich voted “ nay.” A resolution was then passed to employ counsel to defend the case. No action seems to have been taken at any time to put on record, or to provide for expressing, in an answer to our [12] order, any cause or reason for the refusal of the respondents to approve the bond. The return signed by the president and recorder gives none. 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 [13] fact described or valued at all in those affidavits, although there were such statements appended to the application made to this Court. It is not averred in. any way that either Rainey or Edwin Rotter is not worth all that was sworn to in the justification made under the statute. Affiants also set up some facts in regard to. residence and freehold of Rainey, which show that he rents a house and claims to be a resident, and that he was, when he justified, a substantial freeholder, and was previously a small freeholder. They then set out “conscientious doubts,” and various other reasons, but no facts which are material. 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 [14] they may inquire, where there is substantial reason to do so, beyond the mere general averments of the affidavits of justification. In this they have the same discretion, and no more, that is possessed by other persons called on to approve sureties. They have no right to disregard affidavits without legal proof, and they have no right to reject sureties without at once giving the reason, and giving a speedy opportunity to meet the facts or supply others. It is tyrannical as well as unlawful to hinder any one who is ready to furnish security from conducting his lawful business. 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. Champlin and Morse, J. J., concurred.