*1 Apr 372. RETIRED & FIREMEN OF THE CITY OF POLICEMEN PARK CITY LINCOLN OF LINCOLN PARK. Court. Judgment Summary Judgment Purpose. — — 1. Summary judgment procedure provided by court rules has a two- first, purpose: legal validity fold to test of elaims and defenses; second, expose (GCR sham claim or defense 1963, 117). Summary Judgment Same — —Issues. 2. complaint alleged No factual issues were raised where fraud, alleging constituting fraud, without facts no answer was defendant, filed, motion for judgment, sup- ported eity introduced as amendment action, plaintiff to the defense opposing failed to file 117). (GCR 1963, affidavits Municipal Corporation Obligation. 3. Pensions — — obligation municipal corporation An pension created under a plan present before the effective date of Constitution was not obligation, a contractual and could be altered or terminated municipality, acting at the will of the at least while within (Const 1963, 9, 24). reasonable limits art § Municipal Corporations Salary 4. Same — — Deductions —Vested Rights. Salary municipal employees deductiоns from salaries of made municipal pension pursuant plan did not create a vested right in a before the present effective date of the (Const 1963, 24). Constitution art § [1] [2, 7, [3, [5, [8] 4] 6] 41 Am 41 Am 9-11] Am40 37 Am Jur, Pleading Jur, Pleading Am41 Jur, Municipal Corporations Jur, References Pеnsions Jur, Pleading § §§ for Points § 341. §§ 340-342. § Headnotes v. Lincoln Corporation Obligation—Constitution. Municipal — 5. Same — pension plan, adoption benefits of since financial Accrued Constitution, obligation present are a vested contractuаl city, of such remain otherwise but terms aof (Const 1963, 24). unchanged by the Constitution *2 City—Plan—Charter Amendment —Terms. Same — 6. 1957, charter, previ- city which altered made Amendment of firemen pension plan policemen for remained ously existing effectivе, only present became Constitution after effect of being the effective date the new that after difference pension plan rights were vested Constitution, under the accrued 1963, 9, 24). (Const rights Judgment Municipal Corporation Judgment Summary — —Pen- 7. — sions. held, Summary judgment properly in favor defendant eity polieemen granted in ease where firemen sued due under city for amounts be as it amendment, adoption of charter but did not existed they amendment was ineffective or that the charter receiving not correct amounts under terms of amendment.
Dissenting Opinion. J.C.
Lesinski, Pleading of Issue. 8. —Joinder joined hy filing exist until issue an does not issue An of fact answer. Judgment Summary Issue. —Genuine 9. Same — hy cannot he tested issues motion Genuineness fact for suрported hy no when issue has (GCS 1968, 117.0[S]). joined test Judgment Judgment Summary for Belief. —Ground — hy judgment must Ground for relief hy summary judgment, pleading attached for face joined hy such answer to has not heen issue when 1968, (GCS U7.S2[1]). Judgment Pleading. Summary — 11. Same — Summary appropriate in judgment оf defendant favor plaintiffs’ pleadings, joined on their when has not who (GGS 1968,117.8[1\). face, action state a cause of Arp Moynihan Wayne; (Joseph Jr.), Appeal A. from 1966, Division October at Detroit. Submitted J. 2,036.) (Docket March No. Decided 1967. Leаve July appeal denied Complaint by & Retired Policemen Firemen of City voluntary Park, a of Lincoln association, plaintiffs, against City and 8 individual municipal corporation, Park, a for amounts pension payments, alleged to due as and for an accounting. judgment Summary for defendant. appeal. Plaintiffs Affirmed. plaintiffs. Thomson,
James City Attorney, Butcher, Robert E. for defendant. By July J. charter amendment dated Holbrook, pension plan known as the of Lincoln policеmen’s system and firemen’s retirement *3 policemen was created for the benefit Michigan. of payable firemen Lincoln Park, retiree, plan The each benefits to under this computed by means of a formula which con- (1/50) employee’s sisted of a fixed fraction compensation multiplied by employee’s earnable years exceeding years. number service, compensation” The term “earnable ais variable designed pensions to make the amount of fluctuate up pay or down accordance with fluctuations in the policemen of active and firemen. April
On Lincoln Park charter was amended so as to delete all. ref erence to earnable compensation. pen- The formula used to determine percentage sion is benefits now based on a- fixed (2%) employee’s average compensation. of final This 1957 amendment still in effect. plaintiffs,
The 8 in all, instituted this action on July 30, rеcover claimed deficiencies in v. Lincoln the Coukt. complaint pension, payments. set forth The and re referred above 1943 charter discovery accounting quested of the amounts and an alleged unpaid. complaint alleged The city. part The de defendant fraud summary judgment on a motion for fendant filed complaint ground to state failed granted. which relief could be pursuant supporting filed motion and change forth the set both 1963, 117.2(1), GrCR charter. in the Although contained under the motion was filed GrCR indicates of the motion substance 117.2(1), no since it material under GrCR was made 1963, 117.2(3), This record. of fact raised response deficiency mo to this fatal.1 In is not plaintiffs complaint, incor .filed an amendеd tion, original complaint. porating reference incorporating complaint, from aside amended original complaint, wholly of an itemiza consisted owing to each indi to be tion of the sums plaintiff, itself to not address and did vidual provisions.2 was not suffi This amended motion in defendant’s the issue raised cient to meet . supporting Durant v. Stahlin affidavit 375 Mich granted'
The lower court defendant’s opinion judgment without appeal. devastating again with the are met we “Once
*4 сonsequences motion for ‘put plaintiff house his must scramble when on original result in lower 1957 amendment or [1] [2] plaintiffs' CLS There complaint is no indication pension benefits? 600.2315(3) as to what did the Í957 benefit, in either the amended i.e., (Stat amendment effеet of were' these benefits Ann 1962 Rev the 1957 amendment as'applied complaint § 27A.2315[3]). frozen to or n ' was 6 Mich App op the Court.
in order’ to and make that he may sure be successfully challenged toas of the existence upon purports facts which he to build his case. summary judg-
“It is obvious that the motion for sufficiency pleadings, ment, to directed immediately brings plaintiffs duty under a al- lege justify facts in their affidavits which could finding trial court in a meritorious cause of action.” Corрoration Beck v. Delta Recreation App citing 518, 522, Dionne v. Pierson Con- tracting Company (1965), App summary judgment procedure provided purpose: 1963, 117, first, GCR has twofold legal validity test the of claims and and defenses, expose a shаm or second, defense. Honigman Michigan Hawkins, & Court An- Rules (2d ed), p pur- notated either When of these poses may served, he must entered. 117.3. GCR plead- In an case, the instant examination of the ings any in the record fails to disclose factual original complaint issues. The contains a brief allegation following language: of fraud in the plain- “That the defendants have defrauded these just legal tiffs out of their and benefits under their system given taxpayers retirement to them the vоters of of Lincoln Park.” Plaintiffs’ attorney setting to file failed affidavits forth facts support allegation. of this It would allegation subject that this would be at- fraud 1963,111.1(1) vague tack under GCR because the unspecific paragraph language does not in- form the defendant of the nature of the cause original complaint is called to defend. discovery accounting. demanded and an Plaintiffs’ attorney setting failed file affidavits forth facts support of either demand. The mоtion for sum- mary judgment support in- affidavit thereof *5 377 1967] v. op Opinion Court. the amendment. Nowhere charter terposed 1957 the plaintiffs’ attorney has case of this record the in Prom the amendment. fore- this mentioned even plaintiffs’ attornеy that did going manifest it is enough in his own at- faith have not tempt setting an affidavit it with out to buttress allegations contained therein. particulars the of the no factual there are issues that manifest It is only by The this case. the record of raised legal one. is a this case all retired between The pension provisions the 1943 while 1953, 1948 question is whether the in effect.
were still may altering pension by city, reduce formula, the pensioners. payable to annuities the Highland City Park In Brown poliсeman, plaintiff Brown, a retired in Mich pension charter pension resulting pay- in reduced amended plaintiff’s response claim that In he had ments. higher pension, interest vested pp 114 said: the court at competent is entertain nо doubt “We adopt pension city Highland sys- Park to provisions, important its but tem reasonable question entered in this case is whether contract was part Highland on into plaintiffs, obligation with each of the by city the Federal forbidden Consti- which * * * impair. tution majority are convinced that of cases in “We jurisdictions pen- establishes the rule that a other by public granted is not a sion contrac- authorities obligation, pensioner has tual no vested pension right, and that terminable at the will municipality, acting while of a at least within rea- plaintiffs in limits. At best this sonable an case have existing expectancy based continuance of provisions.” (Emphasis supplied.) App [Map. Court. changed virtue of Const ruling has This financial benefits makes 24, which obligation a contractual obligations respect city. with However, date the effective pension plans created supra, decision, the Brown 1963 Constitution pensions *6 though now are even Alsо, still controls. still re- terms thereof given the status, contractual applied unchanged. in- the As main otherwise amendment to that the 1957 means case, this stant in full force remains charter only change Lincoln the being that with the effect, and rights nоw vested. thereunder are appears more to be on the surface which A case Campbell helpful instant case is (1966), Judges Board Retirement v. where it was judges rights held that pension system na- were of in their impaired. The not be and thеrefore could ture supra, Campbell, distinguishing factor between Campbell that case, however, the instant pension plan voluntarily judges into entered from their own thereto and made contributions relationship. resulting in a contractual funds municipal employers are how- concerned, Where the effective date of the 1963 Consti- ever, not create a from salaries do tution, deductions Coppenolle City right pension. in a Van v. vested (1946), Mich 580. Detroit appear plain- that Nowhere the record does they receiving claimed that are not have tiffs pension amounts under the terms of the correct chal- amendment. Plaintiffs have not even lenged of that amendment. effeсtiveness therefore, this case was conclude,
We proper one for existing in view of the law on
lower court, v. the Court. legal correctly in subject, issue favor decided of defendant. concurred. J., H.
J.
Gtllis,
(dissenting). Since the defendant
J.C.
Lesinski,
join
filing
cause,
an answer in the
failed to
issue
genuineness
position
test
not
it is
issues
pleadings,
of fact
117.2(3).' An
under GCR
joined.
exist until issue
of fact does not
summary judg
The defendant is
entitled
117.2(1),
under the
GCR
ment
plaintiffs’ pleadings
face,
on their
state
cause
for,
ground
requested
action. The
relief
face
if at
all,
must,
concurring
Mr.
attacked.
Justice
so
See
Souris’
opinion in Durant
Stahlin
1. Searches special automobile under both Eederal of an case Séareh and seizure law. and State search Cause. Same —Automobiles—Prоbable may be made in connection with the of an automobile Search probable cause to police if officers have arrest of its driver automobile has stolen. believe that [5] [1-4] Seizure’ § § 46 Am Am Jur Jur, References IS, 19. Robbery 2d, Arrest por et §43 seq. Points et seq.; in Headnotes Am Jur, Seareh and