Opinion
Calendar No. 44,285.
There being no present necessity for issuance of writ on February 28, 1949, it was not issued.
Mandamus by Roy C. Gamble and others against Liquor Control Commission of the State of Michigan and others to compel revocation of license. Submitted December 14, 1948. (Calendar No. 44,285.) There being no present necessity for issuance of writ on February 28, 1949, it was not issued.
Foster, Cummins, Snyder, Cameron Foster ( Walter S. Foster, of counsel), for plaintiff.
Eugene F. Black, Attorney General, Edmund E. Shepherd, Solicitor General, and Daniel J. O'Hara and Charles M.A. Martin, Assistants Attorney General, for defendant.
Plaintiffs, three of whom are attendants and members of the Union Church in the village of Greenbush, filed their petition in this Court for a writ of mandamus to compel the defendant liquor control commission to revoke a class "C" license issued to Morton Dermer and Harry Dermer for the sale of liquor for consumption on the premises at the Greenbush Inn, for the reason that the inn is located, as plaintiffs allege, within 500 feet of the Union Church "by the regularly traveled thoroughfare." On entry of an order to show cause defendants filed their answer and return which "admit the propriety of the instant proceedings." Defendants now contend, however, that the issues involved may properly be presented only in a suit for declaratory judgment or in chancery proceedings; that the plaintiffs here seek a determination of the Dermers' rights in an action to which the latter are not parties, in violation of their rights under the due process clauses of the Federal and State Constitutions.
The license creates no vested or property rights; subject to statutory limitations, it may be revoked whenever the commission deems proper or the law so requires; such revocation involves no question of due process. People v. Schafran, 168 Mich. 324; Johnson v. Liquor Control Commission, 266 Mich. 682. If the license was issued in violation of the statute, as plaintiffs contend, it should be revoked. George v. Travis, 185 Mich. 597 (L.R.A. 1915E, 408). Mandamus is properly invoked. Hanold v. Common Council of Village of Stambaugh, 163 Mich. 242; Osborne v. Richland Township Board, 183 Mich. 220.
The pertinent provisions of the statute read as follows:
"Any new application for a license to sell alcoholic beverages at retail, or any request to transfer location of an existing license, shall be denied in the event the contemplated location is within 500 feet of a church or a school building, by the regularly traveled thoroughfare." Act No. 8, § 17a, Pub. Acts 1933 (Ex. Sess.), as added by Act No. 133, Pub. Acts 1945 (Comp. Laws Supp. 1945, § 9209-32a, Stat. Ann. 1947 Cum. Supp. § 18.988[1]).
3 Comp. Laws 1948, § 436.17a. — REPORTER.
Was the license issued in violation of the statute? The Union Church is on the west side of State street, a street running north and south. The Greenbush Inn is farther north on the east side of the same street. The taproom, in which liquor is sold under the license, occupies the north 12 feet of the inn. However, the "contemplated location" named in the application and the "location" named in the license itself is the Greenbush Inn. Defendants do not deny plaintiffs' contention that the license permits sale of liquors on the premises anywhere in the inn. Prior to issuance of the license defendants determined the distance between the church and inn to be 532 feet by computing the distance at right angles from the front entrance of the church on State street to the front entrance on that same street of the taproom at the northern extremity of the inn.
In measuring the distance between the church and the inn in accord with statutory requirements, viz.; "by the regularly traveled thoroughfare," the distances from the front doors of the church and the inn, respectively, to the thoroughfare are not to be included. People v. Schneider, 170 Mich. 150. The statute makes no reference to the entrance but only to the "location" at which liquors are sold and prohibits the issuance of a license for sale of liquors at a location "within 500 feet of a church," not merely 500 feet of its entrance. "Church" is defined in the statute as follows:
"`Church' to mean an entire house or structure set apart primarily for use for purposes of public worship." Act No. 8, § 2, Pub. Acts 1933 (Ex. Sess.), as amended by Act No. 349, Pub. Acts 1947.
3 Comp. Laws 1948, § 436.2 (Stat. Ann. 1947 Cum. Supp. § 18.972). — REPORTER.
To give effect to the language of the statute, and to effectuate a measurement "by the regularly traveled thoroughfare," two straight lines must be projected, one from the part of the church nearest the inn and one from the part of the Greenbush Inn nearest the church, at right angles to and across State street. The distance along the thoroughfare between the two lines so projected is controlling of the question presented. That distance being admittedly less than 500 feet, the license was issued in violation of the statute and should have been revoked.
The license having expired January 1, 1949, after this case had been submitted, there is no present necessity for issuance of the writ. No costs, a public question being involved.
SHARPE, C.J., and BUSHNELL, BOYLES, REID, NORTH, BUTZEL, and CARR, JJ., concurred.