Carrier v. State Administrative Board , 225 Mich. 563 ( 1923 )

Plaintiffs and appellees, about 20 in number, grouping themselves as citizen taxpayers, filed their bill in the Ingham chancery court to restrain expenditures of money in the construction of buildings at 7 different State institutions. The State administrative board, the auditor general, and the State treasurer, are the only parties defendant in said bill. A motion to dismiss in the nature of a demurrer was made by the defendants in the lower court. This motion was overruled and from the order overruling the motion an appeal is taken to this court.

The causes assigned and relied upon in this appeal are:

(1) The bill of complaint is fatally defective for lack of necessary parties.

(2) The bill of complaint is multifarious.

(3) The plaintiff has not stated such a cause of action as will confer jurisdiction to grant an injunction.

(4) The bill of complaint seeks an injunction restraining the acts of the chief executive of the State.

The first three reasons will not be discussed. The most stress is laid upon the last of these reasons, counsel saying in the brief:

"In the case at bar, the acts complained against, while originating as the acts of the administrative board, yet become the acts of the chief executive by his adoption and promulgation thereof. The administrative board, under the statute creating it, acts as an advisory body to the chief executive. The chief executive adopts, or not, their recommendations and their recommendations have no force or validity except by the express adoption of the chief executive. They are therefore the acts of the chief executive involving discretionary matters and they may not be inquired into or controlled by the judiciary."

The administrative board has a membership of 7 persons. Section 3 of Act No. 2, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 172 [3]), undoubtedly gives the governor the power practically of vetoing the acts of the administrative board, but it requires action of the board itself to enact any order or resolution.

It may be well at this time to call attention to some of the averments of the bill of complaint. We quote therefrom:

"Plaintiffs further show that section 16 [art. 10] of the Constitution of the State of Michigan provides that no money shall be paid out of the State treasury except in pursuance of appropriations made by law, and plaintiffs aver upon information and belief and charge the fact to be that, notwithstanding said constitutional provisions, the said defendant, the State administrative board of the State of Michigan and the said defendant, Oramel B. Fuller, as auditor general of the State of Michigan, and the said defendant, Frank E. Gorman, as State treasurer of the State of Michigan, the last two mentioned defendants acting under and in pursuance of the supervision and control over them given by said Act No. 2 of the Public Acts of 1921 to said defendant, said State administrative board, have paid out from the State treasury and are from time to time paying out from the State treasury and are planning and intending in the future to pay out of said State treasury vast sums of money, aggregating more than one million dollars for purposes for which no appropriation whatever has been made by law or, if any appropriation was so made, sums vastly in excess of such appropriation. * * *

"Yet plaintiffs aver upon information and belief and charge the fact to be, that said State administrative board, notwithstanding all of said acts of the legislature at said sessions of 1917 and 1919 and 1921, and in complete disregard thereof, has recently determined by resolution that said industrial school for boys shall not be removed from said old site in said city of Lansing and that there shall be expended in the building of new permanent structures on said old site with a view to the permanent maintenance thereof the sum of about one million dollars. Plaintiffs show in this regard that no appropriation whatever has been made by law for such a purpose and that the expenditure of said sum of one million dollars or any other sum for such a purpose is contrary to the Constitution and laws of the State of Michigan. Plaintiffs further allege in this regard that said State administrative board intends to pay and cause to be paid for the purpose aforesaid out of the general fund in the State treasury said sum of one million dollars unless restrained from doing so by this honorable court, to the great and irreparable injury of the plaintiffs, and that the said defendant, Oramel B. Fuller as auditor general of the State of Michigan, under the order and direction of the said board will draw and cause to be drawn his warrant upon said State treasury for said sum and that the said defendant, Frank E. Gorman as State treasurer aforesaid, will pay and cause to be paid out of the State treasury said sum of money under the order and direction of said State administrative board unless restrained by this honorable court, all of which unlawful acts and doings upon the part of each of said defendants will result in great and irreparable loss and injury to the plaintiffs."

Under the present state of the pleadings these averments must be taken to be true. If true then the plaintiffs are entitled to relief against at least some of the defendants. We think the case cannot be finally decided without a hearing on the merits.

The action of the chancellor should be affirmed and the defendants given twenty days from the filing of this opinion in which to answer. No costs should be allowed in the case.

McDONALD and SHARPE, JJ., concurred with MOORE, J.