Jones ex rel. Hall v. Turner

163 N.W. 998, 197 Mich. 523

• Court: Michigan Supreme Court
• Decided: July 30, 1917
• Docket: Docket No. 172
• Status: Published

Opinions

Moore, J.

The plaintiff is prosecuting attorney of the county of Ontonagon, and as such files this bill of complaint at the relation of William Hall, a member of the township board of Stannard township. The bill prays for injunction against conducting a saloon under a license claimed to be illegal and for the cancellation of the license. From a decree in accordance with the prayer of the bill the case is brought here by appeal.

The statutory provisions material here are as follows:

“The supervisor, the two justices of the peace whose term of office will soonest expire, and township' clerk, shall constitute the township board, any three of whom shall constitute a quorum for the transaction of business.” 1 Comp. Laws, § 2343 (1 Comp. Laws 1915, § 2122).

- “When from any cause there shall not be three of ¡the officers constituting such board, competent or able to act, one of the remaining justices, on being notified by any member of said board, shall meet with any members of the board, and shall have the same authority as the other members of the board.” 1 Comp. Laws, § 2344 (1 Comp. Laws 1915, § 2123).

There is not much dispute about the facts. On April 10, 1916, at a meeting of the township board attended by the supervisor, the township clerk, and the two justices of the peace, one of whom is the relator, whose terms of office would soonest expire, the liquor application of defendant Turner was considered. On April 14, 1916, at a meeting attended by the same men, two men voted to accept the application, one member voted no, and one did not vote, and the application was declared carried. At a meeting of the township board attended by the same officials held April 28, 1916, a motion to reject the bond of Mr. Turner was carried. On the following day, at a meeting attended by a junior justice of the peace, the bond was accepted, Justice Kaiser protesting that the meeting was illegal. Justice Hall, a senior justice who had attended all of the previous meetings, was in the township, and was able to attend this meeting, but had.no notice it was to be held.

The following occurs in the testimony of the clerk:

“As township clerk of Stannard township, I did not make out, or send any notice to any of the board to attend at a meeting that day. ' There were no written notices given to attend the meeting of the board that day. Well, I was simply come out after. They got me and said there was a meeting. Lloyd Vest came after me. I do not know whether anybody went after Mr. Hall. * * * I did not have any idea how the township board come to hold a meeting on that day. I was simply sent for. I did afterwards certify that the bond passed upon by the persons assuming to act as township board that day was duly approved by the board. I did that by voting on it. I talked with the supervisor about filling it out.”

The following is taken from the testimony of Mr. Turner:

“And at this meeting on the 28th with Messrs. Brown, Hall, Kaiser, and Kopperi present, they either rejected this bond, or failed to approve of it; you knew that, on the 28th it was approved. I beg your pardon, it was the 29th; they didn’t approve it on the 28th. I learned that they didn’t approve my bond directly after, the meeting adjourned; they told me. It was a matter of considerable moment to me. I simply asked them why, and they said they didn’t know. I asked the supervisor why they turned my bond’ down, and he said he didn’t know. I didn’t talk to any of the others. I understood from the supervisor that Mr. Hall was against it.

“I knew that if I was going to get a liquor license that I had to get it that day or not at all. I did not immediately get busy among the members of the board to get another meeting. I got busy to get counsel. Counsel was to get a new application and present the new application before the bpard. * * * They didn’t approve it on the 28th, and then I knew that it was up to me to get the bond approved, and then I had a conversation with- Mr. Brown, the supervisor, and he couldn’t understand why some of the board were against it. I simply asked Mr. Brown why they turned the bond down. Mr. Kopperi was out on the farm. I did not talk about it to Kaiser — he seemed to be against accepting my bond — so I had it arranged with Mr. Brown, the supervisor, that he was to call another meeting of the board, and get the bond approved so I could get a license. Í did not talk with any of the other members of the board. * * * All the conversation I had about the bond was that with the supervisor before the meeting. I had not talked with him about calling in another justice. I had no conversation about that. I knew, however, when I was at this meeting and when this bond was brought up, that Mr. Peterson was assuming to act as a member of the board. I did not know whether or not Mr. Hall was notified. I knew all the time that it was Hall and Kaiser that were objecting.”

We quote from the brief of appellant’s counsel :

“When the State of Michigan or its attorney general or prosecuting attorney comes into this court as a suitor, it or he, whether asserting sovereign prerogative or seeking pecuniary relief, is bound by all the rules of equity with a few exceptions, none of which is applicable to the present controversy. * * * Equity will, in the proceeding where the plaintiff asks its intercession, regard as done that which ought to have been done, and will treat the bond in question as approved on April 28, 1916. The maxim, ‘He that hath committed iniquity shall not have equity,’ applies with singular force to the conduct of the complainant in this case. ‘A court of equity will leave this complainant, the people of the village, * * * in the bed they have deliberately made, and to such defense as a court of law may find they are entitled to,’ is the language of Justice Grant in Common Council of Cedar Springs v. Schlich, 81 Mich. 411 (45 N. W. 995, 8 L. R. A. 851). .* * * An innocent third party need not look beyond the face of the records or the declaration in documents by officials authorized to, issue the same. All presumptions are in favor of the validity of the proceedings.”

The record does not disclose why the bond.was rejected on April 28th. It does disclose that after it was rejected the defendant sought the advice of counsel; that he knew the relator Mr. Hall was opposed to approving his bond; that he knew he was not at the meeting of April 29th; and that his place was taken by a junior justice. We think it can hardly be said he is an innocent third party who will be protected by the face of the record.

The pivotal question involved was so recently before the court in George v. Travis, 185 Mich. 597 (152 N. W. 207, L. R. A. 1915E, 408), that we shall content ourselves by referring to the opinion in that case.

The decree is affirmed, with costs.

Kuhn, C. J., and Stone, Bird, and Fellows, JJ., concurred with Moore, J.