Hubbard v. Bd. of Trs. of Ret. Sys.

• Decision Date: 03 June 1946
• Docket Number: No. 42.,42.
• Citation: 315 Mich. 18,23 N.W.2d 186
• Parties: HUBBARD, Mayor, v. BOARD OF TRUSTEES OF RETIREMENT SYSTEM.
• Court: Michigan Supreme Court

315 Mich. 18

23 N.W.2d 186

HUBBARD, Mayor,

v.BOARD OF TRUSTEES OF RETIREMENT SYSTEM.

No. 42.

Supreme Court of Michigan.

June 3, 1946.

Appeal from Circuit Court, Wayne County, in Chancery; Theodore J. Richter, Judge.

Suit in equity by Orville L. Hubbard, Mayor of the City of Dearborn, against the Board of Trustees of the Retirement System created by Ordinance No. 210 of such city, for a declaratory decree as to construction of such ordinance and legality of defendant board's resolutions and portions of appropriations for such system by the city council. From orders dismissing the bill of complaint and denying leave to amend, plaintiff appeals.

Orders, set aside, and case remanded.

Before the Entire Bench.

Dale H. Fillmore, Corporation Counsel for City of Dearborn, J. K. Underwood, Deputy Corporation Counsel for City of Dearborn, both of Dearborn (Lionel R. Hampton, Asst. Corporation Counsel, of Dearborn, of counsel), for plaintiff-appellant.

John J. Fish, of Dearborn, for defendant-appellee.

BOYLES, Justice.

This is an appeal from an order entered by the circuit court for Wayne county in chancery dismissing the bill of complaint on motion of the defendant. The circumstances are not in dispute.

Plaintiff is the mayor of the city of Dearborn. Defendant is the board of trustees of the retirement system for city employees under the provisions of ordinance No. 210 of said city. On November 30, 1945, plaintiff, as mayor, filed a bill of complaint in said circuit court for a declaration of rights, under Act No. 36, Pub.Acts 1929, 3 Comp.Laws 1929, § 13903 et seq., Stat.Ann. § 27.501 et seq. The bill of complaint alleges, in substance, that in preparing the budget of said city for the fiscal year 1944-45, the city council on the certificate of the defendant board placed an item therein for $130,208 for the general employees' retirement system created by ordinance No. 210 of said city; that plaintiff requested an opinion from the corporation counsel as to the legality of such proposed appropriation and in response to such request received an opinion that approximately $20,000 of said appropriation was illegally included in the budget; that thereupon plaintiff, as mayor, vetoed that portion of the appropriation considered by the corporation counsel to be illegal; that the common council reconsidered the matter, overrode the veto and readopted the alleged illegal item. The bill further alleges that the defendant board of trustees again included a similar illegal item in connection with the budget of the city for the fiscal year 1945-46; that plaintiff, as mayor, again vetoed said item; the city council again overrode the veto and included said item in the budget for that fiscal year; that tax moneys are being collected and paid over to the defendant board of trustees in accordance with said illegal budget; that if the illegal basis on which the said money is being appropriated is continued by the defendant board, in about 18 years the city will be obligated to pay into said fund approximately $370,832 more than it should legally pay. Plaintiff, as the mayor of said city, filed this bill of complaint seeking a declaratory decree as to the construction of said ordinance No. 210, the legality of the resolutions passed by the defendant board of trustees, and the legality of said appropriation under the charter and ordinance No. 210 of said city.

The defendant filed an answer, and at the same time filed a motion to dismiss the bill of complaint on several grounds which will be discussed herein. The circuit judge on hearing the motion granted the same and dismissed the bill of complaint. From the order entered thereon plaintiff appeals.

The circuit judge did not hear the case on the merits, nor did the court attempt to decide the issues on which the bill of complaint was filed. The court very properly declined to pass upon the merits of the controversy, on the hearing of the motion to dismiss. The real issues in the case, as to the construction of ordinance No. 210 and the legality of the budget item in dispute, were not presented to, or considered by, the trial court, consequentlywill not be considered on this appeal. Fowler v. McQuigg, 222 Mich. 178, 192 N.W. 708;Plas v. Aldrich, 238 Mich. 343, 213 N.W. 80. Under the circumstances this court does not pass upon the merits of the controversy. First National Bank of Detroit v. Barnum Wire & Iron Works, 58 Mich. 315, 25 N.W. 202;Gregor v. Old, 209 Mich. 43, 176 N.W. 580. The question before us for decision on this appeal is whether the court erred in dismissing the bill of complaint. On appeal from an order granting a motion to dismiss, well-pleaded material allegations in the bill of complaint must be taken as true. Goodfellow v. Detroit Civil Service Commission, 312 Mich. 226, 20 N.W.2d 170.

The first ground relied upon by the trial court for dismissal of the bill of complaint and which is urged here by defendant is that the Declaratory Judgement Act is not applicable to this proceeding. As to that, we conclude that an actual controversy exists, to which the plaintiff, as mayor of the city, is a proper party. In this case the issuable controversy arises as to the legality of the action taken by the defendant board of trustees in deciding to set January 9, 1929, as the date for beginning prior-service credit for retirement purposes, instead of November 18, 1935, the date fixed by the corporation counsel in his opinion. A further issue is involved as to the status of female employees of the city who may be excluded from civil service and the retirement benefits because of marriage. The answer to this controversy will determine whether the veto action taken by the mayor was proper, and whether approximately $20,000 in excess of the amount which was decided as legal by the mayor and corporation counsel should be put in the budget and assessed against the taxpayers. We find that an actual controversy exists, within the provisions of the Declaratory Judgment Act. Section 13.7 of the city charter provides that the annual budget shall be transmitted to the mayor of the city for his approval or rejection, and that he may approve or veto any part or item thereof. Section 8.3 of the charter, among other things, places on the mayor the power and duty to prepare and administer the annual budget. Plaintiff herein, as mayor of the city of Dearborn and its administrative head, according to the city charter, was a proper party, in his official capacity as mayor, to seek a judicial determination of the controversy.

‘The rule is general that all public officers, though not expressly authorized by statute have a capacity to sue commensurate with their public trusts and duties.’ Berrien County Treasurer v. Bunbury, 45 Mich. 79, 84, 7 N.W. 704, 705.

‘Aside from these statutory provisions it is the general rule that public officers need not be expressly authorized by statute to bring suit, but that their capacity to sue is commensurate with their public trusts and duties.’ Auditor General v. Lake George & Muskegon River R. Co., 82 Mich. 426, 429...