Menendez v. City of Detroit

• Decision Date: 05 October 1953
• Docket Number: A,No. 35,35
• Citation: 60 N.W.2d 319,337 Mich. 476
• Parties: MENENDEZ et al. v. CITY OF DETROIT et al. pril Term.
• Court: Michigan Supreme Court

Page 319

60 N.W.2d 319

337 Mich. 476

MENENDEZ et al. v. CITY OF DETROIT et al.

No. 35, April Term.

Supreme Court of Michigan.

Oct. 5, 1953.

Paul T. Dwyer, Corp. Counsel, Detroit, Vance G. Ingalls, Asst. Corp. Counsel, Detroit, for defendants-appellees, Miller, Canfield, Paddock & Stone, Detroit, of counsel.

Robet E. Childs, Detroit, for plaintiffs-appellants.

Harry S. Toy, Detroit, amicus curiae.

Before the Entire Bench.

DETHMERS, Chief Justice.

This is a taxpayers' suit to enjoin (1) the issuing of self-liquidating revenue bonds for the acquisition of off-street automobile parking facilities, (2) the transfer of $216,000 from the 'Parking Meter Fund' to the Automobile Parking System Receiving Fund for operation of the system and liquidation of said bonds, and (3) the depositing of future collections from parking meters and facilities in the latter fund for the mentioned purpose.

Are plaintiff-taxpayers parties at interest and hence entitled to maintain this action? After submission of the case on the pleadings without proofs, the trial court held that they were not such parties, but nevertheless proceeded, in its opinion, to consider the case on the merits and concluded the matter by entering a decree which made no finding on the merits but simply dismissed the bill of complaint. Plaintiffs appeal.

Touching on plaintiffs' interest in the matter, their bill of complaint alleges:

'* * * if defendants are not enjoined, the intended defendants' actions will result in great and irreparable damage to plaintiffs by reason thereof and the lack of any adequate remedy at law available to these plaintiffs.

* * *

* * *

'Plaintiffs represent to this court that they and the other taxpayers of the City to Detroit are without a complete and adequate remedy in the premises except in a court of equity and that the matters involved in this litigation and set forth in the bill of complaint are matters of great public importance and exceed in value the sum of one hundred ($100.00) dollars.'

In point, from 28 Am.Jur., Injunctions, § 282, is the following:

'But mere allegations in the bill or petition, of the pleader's conclusion that the act or acts sought to be restrained will, if committed, cause irreparable injury or damage for which there is no remedy at law, not supported by facts showing such irreparable injury or damage, is not sufficient to make out a case for injunctive relief.'

Annexed to the bill of complaint, as exhibits, are copies of (1) the ordinance under attack in this suit, in pursuance of which the parking system is to be established and the bonds issued, and (2) a previous ordinance and a city charter provision, with both of which the attacked ordinance is alleged to be in conflict. There is no allegation in the bill that the establishment of the parking system and issuance of the bonds would serve in any wise to injure plaintiffs' rights as taxpayers or to increase or affect taxes levied or to be levied on plaintiffs' property. On the contrary, it is clear from the bill that the expense of maintaining the system and the payment of the bonds will come exclusively from revenues of the system and that the same will not become a general obligation of the city.

It is alleged in the briefs that transfer of the $216,000 sum from the 'Parking Meter Fund' to the Parking System Receiving Fund and the prospective deposit in the latter of future parking facility collections would affect taxpayers' rights in a manner giving them a justiciable interest in the subject matter. Nothing is to be found in the bill of complaint or annexed exhibits to disclose the nature of or limitations upon the so-called 'Parking Meter Fund', or parking facility collections--whether they are rightly a part of the general fund, available for general purposes--nor is there any indication of the specific purpoe to which said fund or collections must, under charter, ordinance or state law, be applied; neither is there the slightest suggestion of what interest taxpayers have therein or how the amount of taxes to be levied against them could be affected by the dissipation thereof. It is said in the brief of amicus curiae that the fund might, under charter provision, be used to reduce taxes. This is not supported by the allegations of the bill nor do we so read the provisions of the charter set forth as an exhibit attached to the bill. Accordingly, the pleadings fail utterly to make out a case of taxpayers' interest in such fund or collections.

Plaintiffs stress, in their brief, the provision in the ordinance setting up the system and providing for issuance up payment of the bonds therefor, that, in substance, the cost of police enforcement of parking regulations shall not be considered an expense of the system. They say this imposes the cost of such police work on the general taxpayers. It is not made apparent that that is not already a charge against the taxpayers. It does not appear from the bill or exhibits how the establishment of the system and carrying out of the provisions of the ordinance under attack will increase the cost of or the burden on the taxpayers resulting from police enforcement of parking regulations. It is not alleged nor do plaintiffs contend, that use of such parking meter or facility revenues or any other public funds for police work in the enforcement of parking regulations or for the acquisition of parking facilities is unlawful, nor could they well assert the latter in view of the holdings in Wayne Village President v. Village Clerk, 323 Mich. 592, 36 N.W.2d 157, 8 A.L.R.2d 357, and Cleveland v. City of Detroit, 324 Mich. 527, 37 N.W.2d 625, 11 A.L.R.2d 171. Yet, this is essential to the plaintiffs' case. As this court said in Worden v. City of Detroit, 241 Mich. 139, 216 N.W. 461, 463.

'Many cases are cited in which taxpayers have been permitted to come into a court of equity to restrain the enforcement of an unlawful tax. But such cases are hardly applicable here. No tax or assessment either general or special will be levied to pay for the construction of this line. All the cost will be paid for out of the income of the system. But even in taxpayers' cases it is incumbent on the plaintiff to establish the threatened levy of an unlawful tax. So, if we treat the bill as one seeking to restrain the unlawful expenditures of public funds, it is still incumbent on the...