Rohde v. Wayne Circuit Judge

Moore, J. The petition filed in the above case prays for a writ of mandamus to compel the respondent, James O. Murfin, circuit judge, to set aside an order granting and continuing a temporary injunction in a case pending before him, wherein Philip T. Yan Zile is complainant and Fritz Rohde and William F. Moeller, county treasurer of Wayne county, are defendants. The facts which occasioned the issuance of this temporary injunction, as found by the judge, are as follows: That the village of Gl-rosse Pointe has at the present time a population of 830 inhabitants; that on the 2d day of September, 1909, when the so-called Warner-Cramton law went into effect, there were five or six saloons doing business within the corporate limits of the village; that Yan Damme, Krumholz, and Doerr were then doing business; that in April of the year 1910 the relator in this case and William R. Dobson both applied for licenses to engage in business at the same site; that both licenses were granted, and Dobson occupied the premises for about a month, and thereafter ceased doing business, whereupon the relator, who had theretofore been granted a license, engaged in business at the same place, and has since continued operating therein; that on the tenth of April of this year Rohde, Yan Damme, Krumholz, and Doerr all applied for licenses, and all obtained from the village council licenses to do business in this community. The court further found that the record discloses “that there can be no question but that Mr. Rohde’s license was the first one taken up by the village trustees;” that, when [685] they were considering his bond, a protest was made against the granting of the license. These findings were fully justified by the evidence. The four licenses mentioned above were all granted at the same meeting. The provisions of law to be construed in this proceeding are found in section 39, Act No. 291, Pub. Acts 1909. It is clear that by the terms of this act “the number of licenses issued shall in no case exceed one to every five hundred inhabitants according to the last United States census, except as provided in said section.” We quote therefrom: “ When applied for in accordance with the provisions of this act, bonds shall be approved by the local board, board of trustees, council or common council in each township, village and city for retail liquor dealers, not to exceed the number doing business in said township, village or city in the month of April, nineteen hundred nine: Provided, that if after this act takes effect the number of retail liquor dealers in any township, village or city shall be in excess of the ratio of one to each five hundred inhabitants, according to the last United States census, no license or licenses shall be issued to any person or persons to take the place of such license or licenses as shall have been revoked as in this act provided, or that shall voluntarily have been surrendered, until the ratio of the licenses granted, and the saloons in such township, village or city shall not exceed one saloon, for every five hundred inhabitants thereof, according to the last United States census: Provided further, that said township board, board of trustees, council or common council, of any township, village or city may by ordinance limit the number of licenses to be granted for such township, village or city; but the number of licenses issued shall in no case exceed one to every five hundred inhabitants according to the last United States census, except as herein provided: Provided further, if the applications for such license filed on or before April fifteenth of any year equal or exceed the maximum number permissible under this section, no further application shall be considered.” When this law took effect, the relator was not engaged in the saloon business in the village of Grosse Pointe. and [686] Van Damme, Krumholz, and Doerr were, and, at the time this proceeding was commenced, were still doing business there, making three saloons in a village of 830 inhabitants. The village council should not have considered Mr. Rohde’s application, either in April, 1910, or in April, 1911. Counsel for relator call attention to Hanold v. Common Council of Stambaugh, 163 Mich. 242 (128 N. W. 233), and claim it is controlling in his favor. We think a reference to this case will show it is not in point. The application of the relator is denied, with costs. See Stenglein v. Saginaw Circuit Judge, 128 Mich. 440 (87 N. W. 449). McAlvay, Brooke, Blair, and Stone, JJ., concurred.