Scott v. Twp. Bd. of Arcada Tp.

• Decision Date: 02 July 1934
• Docket Number: Motion No. 393.
• Citation: 255 N.W. 752,268 Mich. 170
• Parties: SCOTT v. TOWNSHIP BOARD OF ARCADA TP. et al.
• Court: Michigan Supreme Court

268 Mich. 170

255 N.W. 752

SCOTT

v.TOWNSHIP BOARD OF ARCADA TP. et al.

Motion No. 393.

Supreme Court of Michigan.

July 2, 1934.

Appeal from Circuit Court, Gratiot County; Kelly S. Searl, Judge.

Mandamus proceeding by Clarence H. Scott against the Township Board of Arcadia Township, Gratiot County, and Orlin Fletcher and others, constituting the Township Board. From an order denying the writ of mandamus, the plaintiff appeals.

Appeal dismissed.

Argued before the Entire Bench.

David E. McLaughlin, of Saginaw, for appellant.

Charles H. Goggin, of Alma (Paul R. Cash and Robert H. Baker, both of Alma, and O. G. Tuttle, of Ithaca, of counsel), for appellees.

NELSON SHARPE, Chief Justice.

Plaintiff made application to the defendant township board for approval of his application to the liquor control commission for a license to sell beer and wine in a restaurant on his premises in said township, and, on its refusal to approve, petitioned the circuit court of the county of Gratiot for a writ of mandamus to compel such action on its part. An order to show cause was issued, to which the defendant filed its answer, alleging therein that it had acted in good faith in its refusal. After a hearing, in which witnesses were sworn, the trial court entered an order denying the writ, from which the plaintiff has taken this appeal.

The evil resulting from the intemperate use of alcoholic beverages has been the subject of much concern to the people of the state of Michigan for many years. Regulation by act permitting the sale upon compliance with certain requirements proved ineffective, and this state joined many others in the adoption of the Eighteenth Amendment to the Federal Constitution in 1919, which prohibited the manufacture, sale, etc., of intoxicating liquors. This amendment was repealed in 1933.

At the fall election in 1932, the following amendment to our Constitution was adopted (article 16, § 11): ‘The legislature may by law establish a liquor control commission, who, subject to statutory limitations, shall exercise complete control of the alcoholic beverage traffic within this state, including the retail sales thereof; and the legislature may also provide for an excise tax on such sales: Providing, however, that neither the legislature nor such commission may authorize the manufacture or sale of alcoholic beverages in any county in which the electors thereof, by a majority vote, shall prohibit the same.’

Pursuant thereto, Act No. 8, 1st Extra Session 1933, was enacted. It created a liquor control commission of five members, and prescribed their powers and duties. It provides for the issuing of licenses by the commission to restaurants wherein beer and wine may be sold for consumption on the premises only (section 24). Section 17 contains the following provision: ‘Provided, however, That all applications for licenses to sell beer and/or wine and/or spirits for consumption on the premises shall be approved by the local legislative body in which said applicant's place of business is located before being granted a license by the commission.’

Plaintiff's application to the defendant board was made pursuant to this provision. The record discloses that he owned and operated a gasoline filling station and a restaurant connected therewith at the intersection of two highways, at a point about six miles north of the city of Ithaca and two miles south of the city of St. Louis, in the defendant township, in the county of Gratiot. It appears from the evidence submitted that he had sold beer in his restaurant during the preceding year, having had a license therefor under Act No. 64, Pub. Acts 1933, and that no complaint had been made of any disturbance or violation of law in connection therewith, and that he is a reputable citizen of the community in which he lives. His counsel admit that under the proviso in section 17 a discretion is vested in the township board in passing upon the application for approval made by him, but insist that it was exercised arbitrarily and capriciously, and without any sufficient reason therefor.

The...