Inglis v. SCHOOL SCH. EMP. RETIREMENT BOARD

374 Mich. 10 (1964)

131 N.W.2d 54

INGLIS v. PUBLIC SCHOOL EMPLOYEES RETIREMENT BOARD.

Calendar No. 15, Docket No. 50,438.

Supreme Court of Michigan.

Writ denied November 2, 1964.

Roscoe O. Bonisteel and Roscoe O. Bonisteel, Jr., for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eugene Krasicky, Assistant Attorney General, for defendants.

ADAMS, J.

Plaintiff, a retiree under the school employees' retirement system, seeks mandamus to compel defendants to follow PA 1945, No 136, as amended (CL 1948 and CLS 1961, § 38.201 et seq. [Stat Ann 1959 Rev and Stat Ann 1963 Cum Supp § 15.893(1) et seq.]),[1] the act under which she receives her retirement allowance, in determining *12 amounts to be appropriated to the retirement fund out of the school aid fund.

Plaintiff contends that defendant board should disregard the provisions of PA 1957, No 312, § 3a, as added by PA 1962, No 221 (CL 1948, § 388.613a [Stat Ann 1963 Cum Supp § 15.1919(53a)]), and PA 1962, No 230, § 24, on the ground that the latter are unconstitutional because the titles do not express the purpose of amending the 1945 act.[2]

Plaintiff does not allege that the benefits paid and to be paid to her as a present and future retiree will be adversely affected and makes no claim that her retirement allowance is in arrears. To the contrary, in her complaint she states:

"Upon information and belief, that the defendants herein have no desire to deny to this plaintiff the sums to which she is legally entitled."

The first question presented is whether the plaintiff has standing to seek mandamus inasmuch as her allegations fail to show that she would be adversely affected. In 1 MLP, Action, § 3, p 108, it is stated:

"In accordance with the generally approved definition of `cause of action,' as consisting of plaintiff's right and defendant's wrong, it is necessary to give rise to a cause of action that there be a violation of some positive legal right, or the breach of a legal duty resulting in damage to plaintiff." (Emphasis added.)

In 1 CJS, Actions, § 10, p 993, it is stated:

"A cause of right of action does not arise for the refusal or discontinuance of * * * a public duty which does not inflict special injury on plaintiff."

*13 In the case of Child v. Emerson, 102 Mich 38, where the plaintiffs, husband and wife, brought an action for slander of a business which was the sole property of the wife, and in which the only interest of the husband was that of an employee whose compensation would be determined by the amount of the profits, it was held that such interest of the husband did not entitle him to join with the owner in an action for injury to the business. In that case the compensation of the employee was directly related to the profits of the business, which, presumably, could be affected by a slander. In this case the plaintiff has attempted no showing whatsoever of injury to herself as a result of the action of the defendants in following the provisions of PA 1962, No 221, and PA 1962, No 230.

"It has become the settled policy of this Court to deny the writ of mandamus to compel the performance of public duties by public officers, except where a specific right is involved not possessed by citizens generally." Wilson v. Cleveland, 157 Mich 510, 511 (133 Am St Rep 352).

Inasmuch as plaintiff has failed to show any facts whereby she is injured, she lacks standing. The application for writ of mandamus is denied. No costs, a public question being involved.

KAVANAGH, C.J., and DETHMERS, KELLY, BLACK, SOURIS, SMITH, and O'HARA, JJ., concurred.

[1] Particularly ch 1, § 27 (CLS 1961, § 38.227 [Stat Ann 1959 Rev § 15.893(27)]). REPORTER.

[2] See Const (1908), art 5, § 21, and, currently, Const (1963), art 4, § 24. The acts cited were appropriation acts and the sections objected to provided for allocation of funds to the retirement systems in a manner at variance with the provisions of the school employees retirement act.