Quay v. Cheboygan Circuit Judge , 150 Mich. 457 ( 1907 )

Moore, J.

Prior to July 34, 1907, one Walter Down was engaged in the retail liquor business in Cheboygan county. A complaint was made against him and presented to David H. Crowley, a justice of the peace, who declined to issue a warrant, for the reason that Mr. Down had filed a liquor bond with a surety company as surety, duly approved, according to the provisions of an act, entitled “An act relative to regulation of the liquor traffic,” etc., approved May 1, 1907. (Act No. 507, Local Acts 1907.)

It was the claim of the prosecuting attorney that said act was unconstitutional, and he applied to the judge of the circuit court for Cheboygan county for a mandamus to compel the issuance of said warrant. The circuit judge declined to issue a mandamus, and this proceeding is brought to review his refusal to do so.

It is claimed on the part of the prosecuting attorney that because of the proviso in section 3 of said act which reads as follows, “Provided, that nothing herein contained shall be construed as compelling either the township board of the township of Forest, or the village council of the village of Tower, Cheboygan county, to accept surety bonds, as required in this section, on any liquor bonds that may be presented,” that said act is unconstitutional, inasmuch as it gives the council the right to accept or reject any bond in their discretion, and permits them to unjustly discriminate against one and deprive him of the right to engage in the liquor business without a hearing.

We cannot agree with counsel in this contention. The act authorizes the village council to accept surety bonds, but it does not require them to do so, leaving it to their discretion to either accept or reject such bonds. It was permissible for the legislature to authorize them to do this. See Sherlock v. Stuart, 96 Mich. 193 (21 L. R. A. 580); Johnson v. Bessemer Common Council, 143 Mich. 313; Wells v. Torrey, 144 Mich. 690; Black on Intoxicating Liquors, § 171.

The judgment of the court below is affirmed.

McAlvay, C. J., and Carpenter, Grant, and Blair,, JJ., concurred.