Johnson v. City of Muskegon Heights, 53
| Decision Date | 04 June 1951 |
| Docket Number | No. 53,53 |
| Citation | 48 N.W.2d 194,330 Mich. 631 |
| Parties | JOHNSON v. CITY OF MUSKEGON heights. |
| Court | Michigan Supreme Court |
Marcus & McCroskey, Muskegon, for plaintiff and appellee.
William J. Balgooyen, Muskegon Heights, for defendant and appellant.
Before the Entire Bench.
An action for damages was commenced against John Farkas, a police officer of Muskegon Heights, charging that he wantonly, maliciously, and without provocation, committed an assault upon Bennie Hildreth.
Plaintiff Nathan Johnson, a taxpayer, sought injunctive relief against defendant City of Muskegon Heights, for the purpose of restraining it from paying any money or furnishing any services in connection with the defense of Farkas.
Johnson alleged in his bill of complaint that the defendant, through its city commission, undertook the defense of the suit against Farkas and caused the appearance of the city attorney to be entered therein. However, the parties later stipulated that, although William J. Balgooyen, city attorney, represented Farkas in the trial of the civil case, he acted as a general practitioner, and the city did not pay for these services, nor has it committed itself to pay for the defense of Farkas.
The city has appealed from a decree enjoining it from paying any money or furnishing any services in connection with the Hildreth-Farkas matter, but not restricting Balgooyen from acting in his private capacity.
The questions presented may be summarized as follows: Does the city of Muskegon Heights have the power to expend public funds for the defense of one of its police officers who was sued in an action at law for assault and battery?
When the matter was argued in this court, appellant city did not appear. Inquiry was made whether in the light of the stipulated facts the case was moot, and this court requested briefs on the subject.
The language of the stipulation is unambiguous. The parties agree that the city attorney did not appear in his official capacity and that no public funds have been expended, nor has any commitment been made for such payment.
As said by the court, speaking through Mr. Justice Fead, in Washington-Detroit Mr. Justice Fead, in Washington-Detroit 229 N.W. 618, 619, 68 A.L.R. 105: 'That the present act (declaratory judgment law) does not constitute a court a fountain of legal advice to fill the cups of loitering wayfarers is also amply sustained by judicial opinion.'
Courts ordinarily will not decide a case or question, in or on which there is no real controversy. 1 CJS 1016.
'It is not our duty to pass on moot questions or abstract propositions.' Sullivan v. Michigan State Board of Dentistry, 268 Mich. 427, 429, 256 N.W. 471, 472.
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