McCabe v. Twp. Bd. of Burnside Tp.

• Decision Date: 24 July 1914
• Docket Number: No. 312.,312.
• Citation: 148 N.W. 197,181 Mich. 683
• Parties: McCABE v. TOWNSHIP BOARD OF BURNSIDE TP., LAPEER COUNTY.
• Court: Michigan Supreme Court

181 Mich. 683

148 N.W. 197

McCABE

v.TOWNSHIP BOARD OF BURNSIDE TP., LAPEER COUNTY.

No. 312.

Supreme Court of Michigan.

July 24, 1914.

Certiorari to Circuit Court, Lapeer County; George W. Smith, Judge.

Certiorari by Mathew McCabe to review a final order denying a writ of mandamus to compel the Township Board of the Township of Burnside, Lapeer County, to approve relator's retail liquor dealers' bond. Order and judgment reversed.

Argued before McALVAY, C. J., and BROOKE, KUHN, MOORE, STONE, OSTRANDER, BIRD, and STEERE, JJ. Walter H. Witt, of Brown City (B. F. Reed, of Lapeer, of counsel), for appellant.

Geer, Williams & Halpin, of Lapeer, for appellee.

McALVAY, C. J.

These are proceedings by writ of certiorari to review a final order of the circuit court for Lapeer county, denying a writ of mandamus, to compel respondent township board to approve a retail liquor dealer's bond.

The relator in the mandamus proceedings, possessing the qualifications required by law of a retail liquor dealer, was engaged in that business during the year ending April 30, 1914, and, proposing to continue in such business, filed his application therefor in due form with the township clerk, and at the same time delivered to said officer the required bond duly executed by him as principal and the Michigan Bonding & Surety Company, a domestic corporation, as surety. This application was considered and approved by the township board, and such approval was certified on the application by the township clerk.

The acceptance of this bond having been protested, as provided by law, by petition signed by a majority of the electors, relator, immediately after the approval of his application, tendered to the township board a new bond in the penal sum of $6,000, the amount fixed by the township board, which bond was duly executed by him as principal and by two sufficient sureties, who qualified under oath as required by law, such bond conforming with the statute in form and substance in every respect.

The township board, at a meeting regularly held, refused to approve this bond by a tie vote. Thereupon relator filed his petition in the circuit court for Lapeer county, praying for a mandamus to compel respondent board to convene and approve said bond. An order to show cause was duly issued and served. To this order two separate answers were filed by the members of the board, both admitting all of the facts stated in the petition.

The answer joined in by the two members of the board who favored and voted for approval of the bond also admitted that the prayer of the petition should be granted. The answer made by the two members who opposed the approval of the bond justified their refusal to do so, as follows:

‘They admit that the bond executed by the relator, as principal, and James F. Martin and John G. Homer, as sureties, was not rejected by said township board because of the form of said bond or the insufficiency of the sureties.

‘They admit that they believe they are justified in rejecting and refusing any and all bonds, regardless of the sufficiency of the sureties, because of the language of Act No. 170 of the Public Acts of Michigan for the year 1911, quoted in relator's brief,’ etc.

Upon the return day of the order to show cause the matter was heard before the circuit court on the petition and answers, and an order and judgment was made and entered denying the prayer of the petition.

There is no dispute upon the facts in this case. The question involved is the constitutionality and proper construction of the act referred to and relied upon by two members of the respondent board as their justification for rejecting and refusing to approve relator's bond. The act referred to is Act No. 170, Public Acts 1911, which is amendatory of section 8, No. 313, pub. Acts 1887, being chapter 132, § 5386, C. L. 1897, the material portion of which reads as follows:

‘The township board of any township, the board of trustees of any village or the common council of any city may, by a majority vote, reject any or all such bonds presented to them for their approval.’

The contention of relator and appellant is that this portion of the act is unconstitutional, for the reason, as stated in his brief, that:

‘It grants power to a local board or council to prohibit the liquor traffic altogether, and is therefore repugnant to the object expressed by the title of the act, which is, ‘to provide for the taxation, licensing and regulation of the business of manufacturing, selling, keeping for sale, furnishing, giving, or delivering, spirituous and intoxicating liquors, and malt, brewed, or fermented liquors, or vinous liquors, in this state,’' etc.

The law regulating the liquor traffic in this state, as is well known to the profession and to laymen, since its first enactment to the present time, has frequently been amended. This court has often been called upon to settle questions which have arisen from year to year in the enforcement of its provisions, and also in construing and determining the constitutionality of many of its provisions.

Act No. 313, P. A. 1887, superseded all former legislation relative to the liquor traffic, and, as amended from time to time, continues to be the statute which controls the business. As its title indicates, it was a statute to provide for the taxation and regulation of the liquor traffic. An amendment to its title was passed by Act No. 291, P. A. 1909, by which it was made to read ‘An act to provide for the taxation, licensing and regulation of the business,’ etc., which is its present entitling.

To give an extended history of this legislation would be of no benefit to the profession by reason of the fact of its familiarity with the amendments to the original act and the decisions of this court upon questions which have been raised under it. It has been repeatedly held by this court that the statute is one which provides for the taxation and regulation of this business, and that provisions for prohibiting the liquor traffic are not germane to, and cannot be...