Attorney General ex rel. McRae v. Thompson

Brooke, J.

(after stating the facts). We are met at the outset by the question of the jurisdiction of the court to determine the matters involved. Counsel for relator cites many authorities which, it is asserted, establish the jurisdiction of the court in- the case presented. Among them are the following: Attorney General v. City of Detroit, 26 Mich. 263 ; Attorney General v. Moliter, 26 Mich. 444 ; Attorney General v. Board of Auditors of Wayne County, 73 Mich. 53 ( 40 N. W. *511 852 ); McMullen v. Ingham Circuit Judge, 102 Mich. 608 ( 61 N. W. 260 ); People v. Ingersoll, 58 N. Y. 1 ( 17 Am. Rep. 178 ).

Many cases are cited in each of the foregoing authorities, several of which are analyzed by counsel for relator. In Attorney General v. City of Detroit, supra, Justice Cooley said:

“The right of the attorney general to proceed in equity to enjoin an abuse of corporate power, consisting in the appropriation of corporate funds in a manner not justified by law, appears to me to rest in sound principle. * * * The attorney general does well to interfere when a municipality assumes to do injurious acts which the State, in conferring the power to act at all, has expressly prohibited. * * * Every misuse of corporate authority is in a legal sense an abuse of trust; and the State, as the visitor and supervisory authority and creator of the trust, is exercising no impertinent vigilance when it inquires into and seeks to check it.”

It is, we think, apparent that the power of the State through its attorney general to file informations involving the validity of municipal action is an exercise of its visitatorial authority to enjoin municipal corporations from doing those acts which are prohibited or which are in excess of their corporate powers. The essence of such an, information is necessarily the averment of some transgression of law by the municipality or it officers.

We search in vain the information before us for such an averment. It sets out the acts of the common council and board of estimates in the premises, but alleges no invalidity therein; indeed, by inference it avers their entire legality. The prayer is, in substance, that the tax levy and the several bond issues may be determined to be valid, but that, if any illegality in any particular be found, its correction may be directed, and that the mayor and corporation counsel may be enjoined from proclaiming the illegality of either the levy or the bond issues.

It is not pointed out that either the mayor or the corporation counsel has any official duty to perform in con *512 nection with the tax levy or the bond issues, nor are they or either of them or any other municipal officer or body charged with any breach of official duty either by misfeasance or nonfeasance.

The only affirmative relief sought is an injunction restraining the mayor and the corporation counsel from proclaiming their opinions as to the validity of the proposed tax levy and bond issues. No authority is cited which in our opinion even remotely supports the proposition that equity may assume jurisdiction for this purpose.

The principal and avowed purpose of the information, however, is to secure from the court an adjudication that the proceedings set out therein are legal and that the tax levy and proposed bond issues are valid; or, in case any part thereof be found illegal, such illegality be pointed out and directions given.

A bill filed for such a purpose does not come under any known head of equitable jurisdiction. If this information will lie, there is no reason why the court may not be called upon to certify to the legality of every municipal tax levy or bond issue made in the State upon the mere statement of the proceedings taken and the importance of a determination of their validity, without any averment of illegality in the proceedings, or the breach of any official duty. The prayer that the court, if it find any particular portion of the tax levy or bond issue illegal, direct the correction of such illegality, is no more than an invitation to the court to discharge the duty that would rest upon it, if it had jurisdiction.

Moreover, jurisdiction may not be predicated upon the prayer for relief; that depends upon the allegations of fact. The prayer is no more than a demand for the relief to which the relator believes himself entitled under the facts stated. The difficulty with the proposition before us is well stated by counsel for relator. He says:

“If Mayor Thompson and Corporation Counsel Hally had had the courage of their convictions, they would have become relators in an information by the attorney general *513 to compel the common council to reduce the tax levy and the bond issues for 1911 to the limits prescribed by the opinion of the corporation counsel. Under the English and the Michigan cases cited in our brief below there can be no doubt but such an information would be sustained.”

In this contention, we quite agree with counsel, if the information contained the necessary averments of illegal action or breach of duty. Nor would it be of consequence, in such case, that the information was filed upon the relation of a citizen and taxpayer instead of upon that of the mayor and corporation counsel. But no such case is before us. The learned circuit judge in passing upon the question said:

“It may be said, without fear of successful contradiction, that the settled, well-understood law of this country is that courts will not pass upon questions merely academic. The opinion of a court is merely its reasoning in reaching a conclusion in a controverted question where adverse interests are claimed and represented, but no case can be found where the court has permitted the question to be put as to what the decision would be were the controversy presented to the court upon a given state of facts.”

We agree with this statement of the law. See Little v. Bowers, 134 U. S. 547 (10 Sup. Ct. 620); California v. San Pablo, etc., R. Co., 149 U. S. 308 (13 Sup. Ct. 876); Lord v. Veazie, 49 U. S. 251 ; Hahn v. City of Westport, 135 Mo. 120 ( 36 S. W. 663 ; State v. Dolley, 82 Kan. 533 ( 108 Pac. 846 ); State v. Lambert, 52 W. Va. 248 ( 43 S. E. 176 ); 3 Am. & Eng. Enc. Law (2d Ed.), pp. 160, 341 et seq., and notes. We must hold that the questions presented are upon this record purely academic.

The judgment is affirmed.

Ostrander, C. J., and Steere, Moore, and Stone, JJ., concurred.