Jones v. Racing Commissioner

Michigan Court of Appeals

Jones v. Racing Commissioner

223 N.W.2d 367, 56 Mich. App. 65, 1974 Mich. App. LEXIS 703

CourtMichigan Court of Appeals

DecidedOctober 8, 1974

DocketDocket 18075, 18114

StatusPublished

Cited by5 cases

This text of 223 N.W.2d 367 (Jones v. Racing Commissioner) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jones v. Racing Commissioner, 223 N.W.2d 367, 56 Mich. App. 65, 1974 Mich. App. LEXIS 703 (Mich. Ct. App. 1974).

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Opinions

Quinn, P. J.

This declaratory judgment action was filed by plaintiffs to have 1972 PA 5; MCLA 431.43; MSA 18.966C13)* ¹ declared unconstitutional. Defendant Shirley moved for accelerated judgment on the basis that plaintiffs lacked legal capacity to sue, GCR 1963, 116.1(3) and that no plaintiff has demonstrated that he is or will be injured in his capacity as a taxpayer. After denial of this motion, there were extensive proceedings before the trial court culminating in a judgment declaring 1972 PA 5 unconstitutional.

Of the two appeals by defendant and intervening defendants, we deal first with the appeal of defendant because we find it dispositive of the entire litigation. The first claim of error by defendant relates to the denial of his motion for accelerated judgment.

GCR 1963, 201.2(3) provides:

"[A]n action to prevent the illegal expenditure of state funds or to test the constitutionality of a statute [68]*68relating thereto may be brought in the name of a domestic non-profit corporation organized for civic, protective, or improvement purposes, or in the names of at least 5 residents of this state who own property assessed for direct taxation by the county wherein they reside.”

1972 PA 5 involves the expenditure of state funds and this action was brought to test the constitutionality of that act, and the foregoing rule requires five plaintiffs, not three.

In Menendez v Detroit, 337 Mich 476, 482; 60 NW2d 319, 323 (1953), a unanimous Supreme Court stated:

" * * * 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.”

No plaintiff in this action demonstrates in the complaint that he will "sustain substantial injury or suffer loss or damage as a taxpayer”.

For the foregoing reasons, defendant’s motion for accelerated judgment should have been granted. While we recognize that there is a serious question of the constitutionality of 1972 PA 329 under Const 1963, art 4, §24, we decline to pass upon it without the proper parties plaintiff.

Reversed but without costs, a public question being involved.

Carland, J., concurred.

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Quinn, P. J.

This declaratory judgment action was filed by plaintiffs to have 1972 PA 5; MCLA 431.43; MSA 18.966C13)* ¹ declared unconstitutional. Defendant Shirley moved for accelerated judgment on the basis that plaintiffs lacked legal capacity to sue, GCR 1963, 116.1(3) and that no plaintiff has demonstrated that he is or will be injured in his capacity as a taxpayer. After denial of this motion, there were extensive proceedings before the trial court culminating in a judgment declaring 1972 PA 5 unconstitutional.

Of the two appeals by defendant and intervening defendants, we deal first with the appeal of defendant because we find it dispositive of the entire litigation. The first claim of error by defendant relates to the denial of his motion for accelerated judgment.

GCR 1963, 201.2(3) provides:

"[A]n action to prevent the illegal expenditure of state funds or to test the constitutionality of a statute [68]*68relating thereto may be brought in the name of a domestic non-profit corporation organized for civic, protective, or improvement purposes, or in the names of at least 5 residents of this state who own property assessed for direct taxation by the county wherein they reside.”

1972 PA 5 involves the expenditure of state funds and this action was brought to test the constitutionality of that act, and the foregoing rule requires five plaintiffs, not three.

In Menendez v Detroit, 337 Mich 476, 482; 60 NW2d 319, 323 (1953), a unanimous Supreme Court stated:

" * * * 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.”

No plaintiff in this action demonstrates in the complaint that he will "sustain substantial injury or suffer loss or damage as a taxpayer”.

For the foregoing reasons, defendant’s motion for accelerated judgment should have been granted. While we recognize that there is a serious question of the constitutionality of 1972 PA 329 under Const 1963, art 4, §24, we decline to pass upon it without the proper parties plaintiff.

Reversed but without costs, a public question being involved.

Carland, J., concurred.

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Bluebook (online)

223 N.W.2d 367, 56 Mich. App. 65, 1974 Mich. App. LEXIS 703, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-racing-commissioner-michctapp-1974.

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