Farr v. Anderson ( 1904 )

Moore, C. J.

The conceded facts in this cause are substantially as follows: Alta Farr, the relator, is the wife of R. B. Farr, and is a resident of the village of Tustin. Upon-the 4th day of May last she filed a liquor bond, regular in form, with her husband, R. B. Farr, and one O. P. Engstrom, as sureties, who qualified as required by statute. The sureties are freeholders and residents of the village of Tustin. Respondents composed the village council of the village of Tustin. They held a meeting on the 4th day of May, when the said bond was taken up for consideration, but not approved. The council held another meeting May 8th, when the bond was again given some consideration, but was not approved. Relator then applied for and obtained from the circuit court of Osceola county an order requiring the council to meet and approve said bond, or show cause to the said circuit court why it refused to do so. Upon the 1st day of June the council met and refused to approve the bond because of the insufficiency of the surety R. B. Farr, upon the following vote: Trustees Edgett, Harmer, and Lucas voting against the approval of the bond, Trustees Grummon and Toland voting for approval, Trustee Pet'tie- not being present. The council then answered the petition of the relator, giving its reasons for its refusal to approve said bond. At the coming in of the answer, the court ordered the framing of the following among other issues:

1. Has the common council acted in good faith in rejecting .the liquor bond of relator ?

2. Is the surety R. B. Farr worth in real estate situate within the county of Osceola the sum of $3,000 over and above all indebtedness, incumbrances, and exemptions from sale on executions ?

A hearing was had before the circuit judge, the witnesses appearing before him. There was testimony tending to show that the trustees had acted in bad faith, and that Mr. Farr was financially able to qualify as a surety. There was .testimony tending to show the converse of these propositions. The circuit judge found that the council had acted in bad faith, that Mr. Farr was financially qualified to be a surety, and directed that the bond be approved. His action is sought to be reviewed in this proceeding.

It is the claim of a majority of the trustees that they acted in good faith in rejecting this bond, and that there is no testimony upon which to base the finding of the court. We cannot agree with the contention of the trustees. It would not be profitable to detail the testimony, but, as before stated, there was testimony which, if believed, sustained the finding of the court that the council acted in bad faith in rejecting the bond.

It is also the claim of respondents that under the provisions of section 5386, 2 Comp. Laws, the judgment of the council as to the sufficiency of the bond is final. In support of this proposition they cite Divine v. Board of Trustees of Lakeview, 121 Mich. 433 (80 N. W. 109), and the cases therein cited. A reference to those cases will show they are clearly distinguishable from this one. In none of them was an issue framed. In this one there was. In none of them was it made to appear the board acted arbitrarily, and not in good faith. In this case it was established to the satisfaction of the circuit judge that the board acted arbitrarily. In Divine v. Board of Trustees of Lakeview, supra, it was said the court may determine whether or not the board has acted in good faith, or whether it has acted arbitrarily, in disapproving the bond. The circuit judge having found bad faith and arbitrary action, his judgment is affirmed. The question involved is one of public importance, which has not before been directly passed upon in this court. For that reason no costs will be awarded to either party.

Carpenter, Montgomery, and Hooker, JJ., concurred with Moore, C. J.