Thiesen v. Parker

• Decision Date: 05 April 1948
• Docket Number: Motion No. 385.
• Citation: 320 Mich. 446,31 N.W.2d 806
• Parties: THIESEN et al. v. PARKER et al.
• Court: Michigan Supreme Court

320 Mich. 446

31 N.W.2d 806

THIESEN et al.

v.PARKER et al. ^*

Motion No. 385.

Supreme Court of Michigan.

April 5, 1948.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Guy A. Miller, judge.

Proceeding by Leo W. Thiesen and others against Ray F. Parker and others, members of the council of the City of Dearborn, and such council, for a writ of mandamus to compel the council to include an amount certified by the board of trustees of the city employees' retirement system in an appropriation bill as the city's contribution to the annuity reserve fund of the system. From an order granting the writ, defendants appeal.

Reversed and set aside.

Before the Entire Banch.

Dale H. Fillmore, Corp. Counsel, Joel K. Underwood, Deputy Corp. Counsel, and Earl C. Smith, Asst. Corporation Counsel, all of Dearborn, for defendants-appellants.

John J. Fish, of Dearborn, for plaintiff-appellees.

BUTZEL, Justice.

The individual plaintiffs are employees of the city of Dearborn, Michigan, and members of the retirement system created by ordinance No. 210 of the City of Dearborn, entitled:

‘An ordinance to provide a retirement system, for employees of the city of Dearborn in the general classified civil service.’

Another plaintiff is the Municipal Employees Association of the city of Dearborn, a voluntary unincorporated association of employees of the city, the majority of which are members of the retirement system created by Ordinance No. 210. The right of this association to bring suit is questioned, but irrespective of whether it had such right or not there are sufficient number of proper plaintiffs without it.

Plaintiffs filed a petition for a writ of mandamus in the circuit court for the county of Wayne against the council of the city of Dearborn and its members to compel the city council to include the sum of $140,135 in the appropriation bill for the fiscal year beginning July 1, 1947, as the city's contribution to the annuity reserve fund under the provisions of ordinance 210. The ordinance was adopted by a vote of the electors of the city of Dearborn at a special election on November 3, 1942. Questions in regard to this same ordinance were ruled on in Mayor v. Dearborn Retirement Board of Trustees, 315 Mich. 18, 23 N.W.2d 186, and Hubbard v. Board of Trustees of Dearborn Retirement System, 319 Mich. 395, 29 N.W.2d 779.

The ordinance in general provides for the creation of a retirement system under which city employees who are members must contribute 5 per cent of their compensation to an annuity savings fund. The ordinance further provides:

‘Article III.

‘Section 1. The general administration and the responsibility for the proper operation of the Retirement System and for making effective the provisions of this Ordinance are hereby vested in the Board of Trustees of the Retirement System, * * *.

‘Section 14. The Board shall designate an actuary who shall be the technical advisor of the Board in matters regarding the operation of the funds created by the provisions of this Ordinance and who shall perform such other duties as are required in connection therewith.

‘Section 15. Immediately after the establishment of the Retirement System, the actuary shall make such investigation of the mortality, service and compensation experience of the members as he shall recommend and the Board shall authorize, and on the basis of such investigation he shall recommend for adoption by the Board such tables and such rates as are required for the proper operation of the Retirement System. The Board shall adopt tables and certify rates, and as soon as practicable thereafter the actuary shall make a valuation based on such tables and rates, of the assets and liabilities of the funds created by this Ordinance. * * *

‘Section 17. The Board shall adopt for the Retirement System such mortality, service and other tables as shall be deemed necessary, for the proper administration of this Ordinance. On the basis of such tables, the actuary shall make annually an actuarial valuation of the assets and liabilities of the funds of the Retirement System. * * *

‘Article VII.

‘Section 2. (a) The Annuity Reserve Fund shall be the Fund in which shall be accumulated the reserves for the payment of all annuities and other benefits payable from the contributions made by the City * * *.

‘(b) Upon the basis of such mortality tables, regular interest and other tables as the Board shall adopt, upon recommendation of the Actuary, the Actuary shall annually make an actuarial valuation of the assets and liabilities of the Retirement System as of the close of the fiscal year ending June 30. Upon the basis of such valuation, the Actuary shall annually compute the amount of the City's contribution to the Annuity Reserve Fund, which paid annually during the future natural lifetime of the members and beneficiaries of Retirement System would be insufficient (sic) to provide payment of the annuities and other benefits to which members and beneficiaries may be entitled or are entitled to receive under the provisions of this Ordinance. The Board shall report to the Council, on or before the first day of March, the amount of the City's contribution so determined and the Council shall appropriate and the City shall pay such amount of contribution into the Annuity Reserve Fund during the ensuing fiscal year.’ (Italics ours.)

The ordinance further provides that if a person ceases to be a member of the retirement fund for any reason other than his becoming a beneficiary or because of his death, he shall be paid all or part of his contributions without interest or additions upon demand on forms provided by the board. Other provisions of the ordinance do not affect the question herein involved.

The board of trustees certified to the city council the amount of $140,135 as the amount the city should contribute to the annuity reserve fund for the fiscal year beginning July 1, 1947. The amount so certified was included by the council in its annual budget adopted April 8, 1947. This item in the budget was vetoed by the mayor of the city on April 21, 1947, and the council refused to override the mayor's veto. Plaintiffs seek to compel the council to do so by this action.

Plaintiffs contend that the council had a legal duty to override the mayor's veto and reinstate the certified amount in the budget because of the provisions of ordinance No. 210 above quoted. They contend that the provisions of the ordinance with reference to the inclusion of the amount certified by the board of trustees in the annual...