Opinion
Docket No. 35, Calendar No. 45,770.
Decided October 5, 1953. Rehearing denied November 27, 1953.
Appeal from Wayne; FitzGerald (Frank), J. Submitted April 9, 1953. (Docket No. 35, Calendar No. 45,770.) Decided October 5, 1953. Rehearing denied November 27, 1953.
Bill by George Menendez and wife against City of Detroit and others to restrain issuance of automobile parking system revenue bonds. Decree for defendants. Plaintiffs appeal. Affirmed.
Robert E. Childs, for plaintiffs.
Paul T. Dwyer, Corporation Counsel, and Vance G. Ingalls, Assistant Corporation Counsel ( Miller, Canfield, Paddock Stone, of counsel), for defendants.
Harry S. Toy, Amicus Curiae.
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 of 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 $100."
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 purpose 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 and 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 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. Wayne Village Clerk, 323 Mich. 592; and Cleveland v. City of Detroit, 324 Mich. 527 (11 ALR2d 171). Yet, this is essential to the plaintiffs' case. As this Court said in Worden v. City of Detroit, 241 Mich. 139:
"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 plaintiffs 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 plaintiffs to establish that the threatened expenditure is unlawful." (Emphasis supplied.)
Plaintiffs cite as authority for their right to maintain this action the following: Carrier v. State Administrative Board, 225 Mich. 563; Wolgamood v. Village of Constantine, 292 Mich. 222; Cooper v. City of Detroit, 222 Mich. 360; Freeland v. City of Sturgis, 248 Mich. 190; Lake Superior District Power Co. v. City of Bessemer, 288 Mich. 455; Cleveland v. City of Detroit, supra; Grand Rapids Independent Publishing Co. v. City of Grand Rapids, 335 Mich. 620. In each of these cases it is clearly recognized that prerequisite to a taxpayer's right to maintain a suit of this character against a unit of government is the threat that he will sustain substantial injury or suffer loss or damage as a taxpayer, through increased taxation and the consequences thereof. This is uniformly true of all the Michigan cases considering this subject. See, also, Curtenius v. Hoyt, 37 Mich. 583; George v. Wyandotte Electric Light Co., 105 Mich. 1; Savidge v. Village of Spring Lake, 112 Mich. 91; Bates v. City of Hastings, 145 Mich. 574; McManus v. City of Petoskey, 164 Mich. 390; and Thomas v. Wayne County Supervisors, 214 Mich. 72.
For cases in which taxpayers were denied the right to maintain a suit to restrain projected governmental action or redress a purely public grievance when it was not shown that they would be injured with respect to tax assessments, see Baker v. City of Grand Rapids, 142 Mich. 687; Andrews v. City of South Haven, 187 Mich. 294 (LRA1916A, 908, Ann Cas 1918B, 100); Johnson v. Gibson, 240 Mich. 515; Worden v. City of Detroit, supra. Also of interest in this connection is Miller v. Grandy, 13 Mich. 540, reaffirmed in Johnson v. Gibson, supra, for the proposition that a private taxpayer, suffering no special grievance, is not a proper party plaintiff to a bill of complaint filed to restrain threatened official misconduct.
Judged by the test laid down in previous decisions, plaintiffs may not maintain this action.
Plaintiffs urge that because the trial judge, after holding plaintiffs were not proper parties plaintiff, nonetheless considered the case on the merits and defendants have taken no cross appeal, they may not now, on appeal, question plaintiffs' capacity to sue. Cited therefor are Township of Pontiac v. Featherstone, 319 Mich. 382; Morris v. Ford Motor Co., 320 Mich. 372; and Fass v. City of Highland Park, 321 Mich. 156. These cases hold, directly to the contrary, that an appellee need not take a cross appeal in order to urge, in support of relief afforded him below, reasons other than those adopted by or those rejected by the lower court.
Finally, plaintiffs suggest that in Young v. Ann Arbor, 267 Mich. 241, and Walinske v. Detroit-Wayne Joint Building Authority, 325 Mich. 562, taxpayers' suits were maintained and considered on the merits under circumstances similar to those at bar without the question of their capacity to maintain such suits having been raised. Plaintiffs conclude that, therefore, it would constitute a denial of equal protection of the laws guaranteed by United States Constitution, amendment 14, § 1, to deny them the right to a decision on the merits here. It is absurd, indeed, to say that a position uniformly adhered to by this Court whenever the question has been raised must be abandoned under the mandate of the mentioned constitutional provision because in some case that position may have been overlooked because the question in relation thereto was not raised.
Provisions contained in a stipulation between parties or the opinion or decree of the trial court cannot serve to tie the hands of this Court to prevent it from holding as above indicated.
Affirmed, with costs to defendants.
ADAMS, BUTZEL, CARR, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred.