Citation Numbers: 54 Mich. 308
Judges: Campbell, Cooley, Sherwood
Filed Date: 6/25/1884
Status: Precedential
Modified Date: 9/8/2022
The petition in this case is for a mandamus to compel the respondents, who are the president and board of trustees of the village of Portland, to comply with his request to approve his liquor bond, tendered by him to them for that purpose. The board, which consists of the president
And the petitioner further represents that in no meeting of the board, nor on the part of any member thereof privately, was there found any fault with the financial sufficiency of the sureties, or either of them; and he further avers that the reason for the board rejecting said bond was because said board was opposed to the sale of liquor under any circumstances, and were under a pledge “ not to approve any bonds whatever of this character, without reference to the sufficiency of the bond in form, or the sufficiency of the sureties thereto; ” that two members of the board were elected in the spring of 1884 upon a ticket which was claimed by its supporters, and so understood generally, to be a temperance or prohibition ticket, and the members thus elected would not approve any liquor bonds whatever, under any circumstances ; that another was elected to fill a vacancy upon the same pledge, and the three others of the trustees held the same views; that privately several members of the board of trustees have said that under no circumstances would they approve any liquor bonds, and “ that in fact the
The affidavit of Mr. 'Morse, the attorney for petitioner, shows that he, accompanied by the petitioner and another attorney, appeared before the board in his behalf at a subsequent informal meeting called by the president to consider the subject of the disapproval of the bond, and that Mr. Morse gave the members present his views of the same, and the duty of the board, and respectfully asked them to assign a reason for rejecting the bond presented, and they refused so to do; that afterwards the petitioner’s attorneys attended a regular meeting of the board and renewed their application for approval of the bond with the same sureties, and asked the board to assign reasons for its rejection, stating that if any defect or insufficiency existed the petitioner was prepared to submit a new bond; and the board made no response thereto.
Five of the trustees make return to this writ and answer under oath, and say the board at a called meeting took action upon this particular bond and disapproved of the same, without stating their reasons for their respective votes. They admit the presentation of the bond for their approval by Mr. Morse, with the request for a statement of their reasons for their action taken in rejecting it, and that they did not comply with such request, considering the matter already disposed of at the former meeting, and that they were not bound to give the reasons for their former votes.
They further state that the true reason for their refusal to
The answer seems to be full, and contains a complete denial of all the material matters contained in the relator’s petition.
Municipal corporations are invested with many powers both of a legislative and judicial character, which are usually, in villages, vested in a board of trustees; and there is no doubt about the duty of the courts to compel by mandamus the proper performance of their corporate duties, and compel action upon matters falling within the scope of their well-defined powers. And it is well settled, in all matters resting in the judgment and discretion of such boards and upon which they have actually passed, mandamus will not lie to control their decision or action when made or taken in good faith. High on Ext. Leg. Rem. § 323 ; Sandlake v. Berlin 2 Cow. 485; Pfister v. Bd. of Com'rs 82 Ind. 382; Albin v. Bd of Directors 58 Iowa 77. When proper action has once been taken in this class of cases, it is not the duty of any appellate court to compel a rehearing. High on Ext. Leg. Rem. §328.
How. Stat. § 2278
This duty necessarily invests the board with large discretionary power. The things which will create a liability on the bond, if they ever exist, are to arise in the future; and it is to guard against these future contingencies, and to secure future responsibility for an injured^ party, where a breach occurs, that the bond is made to provide. It will be noticed that the statute not only requires that the sureties shall
Municipal corporations usually speak from the record or by attorney. In this case the decision of the board of trustees was placed upon their record. The reasons therefor, however, do not appear in the record; neither does the statute require any such thing. Still I fail to see any good reason why the board did not give the attorney for relator, or the relator himself, the information he desired. Common courtesy, it would seem, required as much as that, although at the time the information was called for they were under no legal obligation to comply with the request; and had it appeared, as claimed in the petition, that the rejection of the bond was the result of prejudice and caprice, it would have been our duty to grant relief. We however do not find such to have been the fact, and the writ must be denied, but without costs.
§ 3278. (Sec. 9.) Every person engaged in the sale of any spirituous, malt, brewed, fermented or vinous liquors, except druggists, shall, before commencing such business, and on or before the first day of May in each and every year thereafter, make, execute, and deliver to the county treasurer of the county in which he is carrying on such business, a bond, the
“Know all men by these presents, that we,-, as principal, and -, as sureties, are held and firmly bound unto the people of the State of Michigan in the sum of-dollars, to the payment whereof, well and truly to be made, we bind ourselves, our heirs, executors, and administrators firmly by these presents. Sealed with our seals, and dated this -day of-, A. D. 18 — .
Whereas, the above-named principal professes to carry on the business of -(and describing the place of business)-, at-, in the county of-;
And whereas, the said principal hath covenanted and agreed, and doth hereby covenant and agree, as follows, to wit: That he will not directly or indirectly, by himself, his clerk, agent or servant, at any time sell, furnish, give, or deliver any spirituous, malt, brewed, fermented, or vinous liquor, or any mixed liquor, a part of which is spirituous, malt, brewed, fermented, or vinous, to a minor, nor to any adult person whatever who is at the time intoxicated, nor to any person in the habit of getting intoxicated, nor to any Indian, or any person of Indian descent, nor to any person whose husband, wife, parent, child, guardian, or employer shall forbid the same; and that he will pay all damages, actual and exemplary, that may be adjudged to any person for injuries inflicted upon them, either in person or property, or means of support, by reason of his selling. furnishing, giving, or delivering any such liquors:
Now, the condition of this obligation is such that if said principal shall well and truly keep and perform all and singular the foregoing covenants and agreements, and shall pay any judgment for actual or exemplary damages which may be recovered against him in any court of competent
Signed and sealed in the presence of
--[l. s.' --- 'l. s.J --j,. s J”
There shall also be annexed to each bond required by this act an affi■davit of each surety thereto, which affidavit shall state that the affiant is worth a sum equal to the amount of the bond over and above all indebtedness, and exemptions from sale on executions, and all liability on other similar bonds; and if, in the judgment of the township board, or the boards of trustees, or common council of the village or city in which said business is proposed to be carried on, said sureties, or either of them, are not worth the full sum mentioned in said bond over and above all their ■liabilities, and exemptions and liabilities on other similar bonds, they, the said township board, or board of trustees, or common council of the village or city, as the case may be, shall refuse to indorse said bond with their approval. Such bond shall not be received unless the approval thereof by the township board, or board of trustees, or common council of the village or city, shall be duly certified thereon in writing, and the principal shall not be allowed to sell spirituous, malt, brewed, fermented, or vinous liquors in any other building or place than that specified in said bond without giving notice, and executing another bond in the manner above prescribed. Whenever any condition of said bond shall be broken, a new bond shall be required by the county treasurer with whom such bond was originally filed, and also in case of the death, insolvency, ■or removal of either of the sureties, and in any other contingency that he shall determine requires it. And it shall not be lawful for any person ■to sell any of the liquors mentioned in sections 1 and 2 of this act, after being notified by the county treasurer to procure a new bond, until said bond shall have been executed, approved by the proper board, and filed with the county treasurer; and any sale made in violation of this section shall be a misdemeanor, and shall be punished as provided in section 6 of this act; and in all actions brought upon said bond for damages by reason of the violation of any of the provisions thereof, the plaintiff in ¿such action shall, in the event of recovering a judgment of any amount, also recover his costs of suit.