George v. Travis

Ostrander, J. (after stating the facts). 1. The second question may be first considered. The church fronts upon Main street. The entrance is in the southwest corner of the building, and approached as well from Broadway, which is the street south of the church, as from Main street, which is the street west of the church. A point on Main street nearest the front entrance is more than 400 feet from the saloon. The point on Broadway nearest the entrance is less than 400 feet from the saloon. Having gained the little corner vestibule of the church from either street, there is a single entrance into the body of the church. We endeavored, in People v. Schneider, 170 Mich. 150 (135 N. W. 973), to so interpret the somewhat ambiguous language of the statute as to afford a workable rule, doing no violence to the language employed by the legislature. Within that rule, the question must be answered in the affirmative, although it is probable that, if the saloon was situated in a different direction from the church, it would be claimed that [603] the measurement should be made to a point in Main street nearest the front entrance to the church. 2. The other questions may be considered together. Defendant has paid his tax, secured his license, filed his bond, with the express assent and approval of the public authorities charged with official duties in connection therewith. It turns out that, applying the statute as it may be applied, and as I think it should be applied, the saloon door is about 16 feet less than 400 feet from the front entrance to the church. The statute provides that: “No license shall be issued to any one to open up and establish a new bar or saloon having its front entrance within four hundred feet along the street line from the front entrance of a church, * * * and after this act takes effect an attempt to open up and establish a new bar * * * having its front entrance within four hundred feet * * * from the front entrance of a church * * * shall be a violation of this ’act, and the person * * * so doing, upon conviction thereof, shall be subject to the penalties prescribed,” etc. Sec. 37, Act No. 291, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 5091). It is not attempted to subject defendant to the pains and penalties of the statute, but, upon the complain! of the prosecuting attorney to a court of equity, to close the saloon, or bar, by the order of the court and the writ of injunction, and the question is presented whether a court of equity may properly grant the relief. Upon this point the argument advanced by complainant is that the saloon is a public nuisance, which may be abated, or restrained, by a court of equity. This court has held that equity has jurisdiction to abate a saloon, if a private nuisance, although the nuisance is also a breach of the criminal law. Detroit Realty Co. v. Barnett, 156 Mich. 385 (120 N. W. 804, 21 L. R. A. [N. S.] 585). We held in Gowan v. Smith, 157 Mich. 443 (122 N. W. 286), that mandamus was not the proper remedy to compel the [604] observance of the statute relating tó the opening and closing of saloons. In Andrews v. Auer, 177 Mich. 244 (143 N. W. 68), it appeared that the saloon keeper stated, in applying for a license, that he was a citizen of the United States and of Michigan. It was charged in the bill of complaint that he was not a citizen of the United States, and for relief it was prayed that the approval of his application for license be declared null, that the license be canceled, and that he be restrained from further carrying on the saloon business. Without deciding whether a place where intoxicating liquors are sold contrary to law is a public nuisance, it was held that the jurisdiction of the court of equity extended to the canceling of certificates and other instruments executed by government officials and boards, when obtained by fraud or illegally. The cases cited in the opinion, the most of them, apply the rule that in cases of fraud the jurisdiction of courts of equity is concurrent with the jurisdiction of courts of law, and that courts of equity may grant more complete relief by compelling cancellation, or surrender, of instruments. See Mack v. Village of Frankfort, 123 Mich. 421 (82 N. W. 209), where such relief was denied, although fraud was alleged, on the ground that complainant had an adequate remedy at law. The cases of Village of Wolverine v. Circuit Judge, 162 Mich. 713 (127 N. W. 744), and Starks v. Circuit Judge, 173 Mich. 464 (139 N. W. 29, 43 L. R. A. [N. S.] 1142, Am. & Eng. Ann. Cas. 1914D, 773), were cases of applications to this court for writs of mandamus to compel the circuit judge, in the first case to dissolve, and in the other case to issue, a writ of injunction. The relief asked for in the first case in the court below was restraint of official action, in the other to restrain the conducting of a saloon. In neither case in this court was the question now being considered presented. In Osborne v. Township Board [605] of Richland Township, 183 Mich. 220 (150 N. W. 249), the direction of official action, by mandamus, was the relief asked for in the court below, the proceeding being reviewed here by certiorari. In no case called to my attention has this court intimated that the jurisdiction of equity courts extended to enforcement of the liquor law or the control of saloons or saloon keepers; that equity will interfere to prevent violations of the liquor law, or to inflict penalties therefor. There is, however, a distinction between cases like the one at bar and Andrews v. Auer, supra, and cases in which, upon the theory that an illy conducted saloon is a public nuisance, a court of equity is asked to interfere. The distinction lies in the fact that in one class of cases, like the present one, the defendant has no right to do business at all, but only has an apparent right, evidenced by the results of his own and of official action, while in the other class of cases the saloon keeper has both a real and an apparent right to conduct the business, but conducts it badly. In the second class of cases, the saloon keeper may conduct his business properly and within the law; in the first class, he has no right to conduct the business, at the particular place, at all. There is in each case responsibility to the criminal law; but in the cases of the first class the penalty is incurred at the outset, is continuing, and cannot be escaped by any method of conducting the business, while in the other class it is incurred only as in the manner of doing business the law is violated. Defendant cannot, if he would, lawfully carry on his business at his present place of business, and every instrument and every vote or resolution upon which his apparent right is founded ought not. to have been given. Possessing the apparent right, the evidences of public permission and indorsement, a court of equity 'may declare them to be ineffective and insuffi [606] cient, and compel their surrender, or cancellation. In Andrews v. Auer, supra, the evidences of right to do business were obtained by fraud; in this case, it must be presumed, they were obtained because of a misapprehension of, or lack of knowledge of, facts which, if understood, would have led to the refusal of the right. In this view of the matter, the prosecuting attorney was a proper complainant, informing officer, the prayer of the bill may be treated as amended, and a decree entered in this court conformably with the views herein expressed. Neither party will recover costs of this appeal. Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.