*1 1967] 607 v. oe Dearborn. THEISEN CITY OF DEARBORN.
Opinion op the Court. Judgment 1. —Res Judicata. existing An judgment upon final rendered the merits without competent jurisdiction fraud or collusion a tribunal jurisdiction within is conclusive of matter its rights parties, privies, or their in all other actions or any jurisdic- suits in the same or other tribunal of concurrent points pro- tion on in in and matters issue the first ceeding. op 2. Concurrent Same —Court Jurisdiction. jurisdiction directly upon court concurrent point is, plea, bar, evidence, as a or as be- conclusive privies upon tween the same the same matters directly question when eourt. another [27] [24, [19] [29, [44, [14] [15,16] [17,18] [20, [21-23] [43] [2] [3] [6] [7] [8] [10,12] [4, [1 [36, [30-35] [38-40] [41, [28] [26] 5,13] ,9,11] 42] 32] 25] 31] 30A Am Am 30A 30A Am 30A Am 39 Am 30A Am 40 Am 40 Am 4 Am 30A Am Am Jur 46,47] 45 Am 40 Am Jur, Pensions 40 Am 40 Am 40 Am Jur, 30A Am 30A Am 30A Am 30A Am 30A Am 30A Am 30A Am Jur Jur, Am Am Jur, Jur, Jur, Judgments Jur, Jur, Judgments Jur, Judgments Jur, Judgments Jur, Judgments References 2d, 2d, Jur, Jur, Jur, Jur, Parties Pensions Pensions Jur, Judgments Jur, Judgments Jur, Judgments Jur, Judgments Jur, Judgments Judgments Jur, Jur, Appeal Actions Public Eunds Pensions Pensions Pensions Pensions Jur, Judgments Judgments § 44; §§ and Error Records 14 et §§ for Points 1. §§ § §§ § 16, 18, 30A Am § § §§ § § § § 851 et 342. 32. 4. 34. 363 et 368. 455, 463. 33. 312, 337. § § § § §§ § § § 135. 373 328. 325. 364. § 2. 19. 19. 405. 324 150-155. § seq. Jur, Judgments seq. 491. et et seq. seq. seq. Headnotes § 405. Action. Action —Class action, may, persons class maintain or or more in a defend One persons similarly- and various other action themselves (GCR 1963, 208). and interested situated *2 Judgment Actions. 4. —Parties—Class judgment general person is a The rule is that no bound except privity in parties are or who stand with who those exception persons parties, to who are but exists as others represented by parties in a action. class Necessity and Actions —Convenience —Common 5. Same —Class Interest. judgment against parties representing a The law that other rule of against operative rep- so persons in a those class action is necessity, founded on convenience and and based resented is joined joined upon theory persons that and not the the may interest, parties joined depended a be common the controversy merits upon bring forward entire of the to the interests, persons protection as a to their own and joined parties sufficiently represented those who not are joined. Subject Identity of Cause Action — 6. Same —Res Judicata — and Matter Issues. relying adjudication generally person A must a former action, subject matter, identity show the of the eause of and the issues. Appeal—Collateral Attack —Retirement Benefits. Same — 7. court, finally determining The of trial in the amounts of decision policemen and are entitled un- to which retired firemen benefits provisions of the and ordinances of der the retirement charter appealed had city, be- could have been if formula, be based on an incorrect lieved the to determination collaterally. judgment but attached cannot be Remedy Appeal—Proper Test Formula. 8. Same — validity proper procedure of the formula contest arriving annuity used in at benefits for retired policemen previous and firemen in suit between same appeal parties in the same court would have been to previous judgment of the suit. Rights. Appeal and 9. Same —Res Judicata — Error —Pension prior in action established the Decision of trial eourt retirement; arriving in at used formula be annuity benefit †0 City Dearborn. ok 1967]- held, and a conclusive bar policemen and firemen retired for subject action, matter and the issues are iden- where instant same, and tical, parties the forum are the under use of the does in the record the formula found the facts rights plaintiff appear impair or diminish the retirees Charter, eh 21.8). (Const art Dearborn 24; § for Retirement Benefits —Firemen—Police- Same —Formula Agreement Parties. men — arriving at amount formula to be used Judgment based on police- plaintiff retired firemen of retirement benefits due held, parties, agreement on men based applied judge opinion court, in his trial where provisions charter and provided to formula as an ordinances, into the record administrative and it entered act the court. Same —Conclusiveness. judicially and determined A fact which has been tried competent jurisdiction, opportunity or an by a court given, having is conclusive on the trial been such subsequent; privity them, with where involved those
action. Judgment. 12. Same —Consent hearing upon upon or con- judgment by A a entered court judgment and is a of court case sideration might does parties added their consent that fact judgment by it a convert into consent. not Action. Judicata —Class 13. Same —Res rep- individually and elass presented appellants, Claims held, under barred policemen and firemen of retired resentatives they previously decided judicata, had been where of res doetrine or eollusion. upon without fraud the merits Inspection Appeal Rec- of Reviewable — 14. Questions Error — Corporation. Municipal ords — inspect they a should have that contention Plaintiffs’ to “measure eity order in financial records of charter,” in the language according set forth to the claims their raised appeal, where not be heard on the issue was will in trial court.
Dissenting Opinion. Holbrook, Judgment Judicata —Polict. —Res judicata The well established doctrine on the one hand res of litigation putting policy end to effectuates of being prevents on the it other individuals harassed from successive suits. 16. Same —Res Judicata —Bar Another Action. judgment that A as an bar to asserted absolute another action action, only on the demand or same cause is conclusive not of every as to that matter action to offered former demand, every sustain or but as to other matter defeat might purpose. that have been that offered for Estoppel—Different 17. Same — Cause of Action. judgment a A is asserted as bar to action on a another action, operates estoppel or demand cause as an different only of issue, controverted, points as to or those matters upon the determination or verdict was finding of rendered. 18. Same —Res of Action —Dif- Qause Judicata. —Effect—Same ferent Cause of Action. upon second action A the same cause action is barred judgment prior action, Upon since is conclusive every might litigated matter have been in the former n action, litigated not; whether it was' in or but fact if upon judgment action, second action is cause different operates only estoppel questions actually as an as to the or facts litigated and determined. 19. Same —Successive Causes of Action Same Transaction. Prom may give The same transaction state rise distinct facts action, judgment upon successive causes and a will one n not bar a suit another: 20. Same —Second Suit on Different Cause Action. suit, although A the same between former relating subject matter, to the same is not a bar to a subsequent action where the cause action is not the same. *4 31. Actions —Contracts—Division Claims. of another, Although against cannot, one who has a claim in the agreement contrary, absence an to- the divide his claim and of subject separate make it actions, may a contract be of give divisible rise one its to more than as to terms SO pause action. of City oe Dearborn. Agreement— n 22.Contracts —Cause of Action —Default—Entire Performance. Several upon every to one who contracts do lies An action default of although agreement things times, at several several for several, entire, performance is and a contract is divisible its nature. Judgment Actions—Municipal Corporations — —Pensions—Res 23. Judicata. . by plaintiff policemen and to recover and retired Action firemen provi- pension the charter increased under determine benefits city subsequent period to sions for of January 1981, held, separate SI, a action to be cause of from n recovery plaintiff earlier action -the same same for 1, 1952, period October and determination from annuity January payable SI, to retirees is since the pay installments, each installment payable in failure n gives action, separate only the common cause issues rise to of being Charter, 21). (Dearborn judicata ch to both cases res Corporations— Retirement—Municipal Law — 24. Constitutional ' Contracts. obligation respect retirement with The benefits of policemen and was made contractual Con- its firemen of annuity payment action and each creates cause stitution payable, it earlier causes the moment becomes distinct from (Const 1963, prior the Constitution to the date of effective 9, 24; City Charter, 21). ch Dearborn art Systems Corporations Municipal —Contracts. —Retirement systems Municipal did contractual status not have a 1, 1964, prior January' Con- date of effective stitution. Obliga- Severability Causes of Action — 26. Action —Distinct n TION. gives distinct causes action rise to several feature severability obligation, arising is the out transaction obligation regardless other- whether contractual wise. Systems Obligation. Corporations Municipal — —Retirement obligated system, city, by enacting a retirement itself Defendant system according provisions until pay tó obligation though deleted, was altered or even either not contractual. *5 App 5' Longevity—Formula Appeal and Plan — for Error —Pension Payment Judgment—Res Judicata. — longevity pay judge was trial that considered Statement of previous in be used in action determination the formula of plaintiff amount retirement due to determine of benefits system policemen retired and retirement de- firemen of from judg- legal effect, city held, to the have no former fendant ment speahs itself, and the an examination case reveals for of longevity issue, pay henee, that the was not case former judicata is this issue and res have a of fully regard. litigate in their claims this Longevity—Municipal Systems.
-29. Pensions — Retirement Longevity significant determining pay pension is a the factor rights municipal policemen retired under retire- of firemen systems. ment Fluctuating 30. Same — Policemen and Fire- Pensions —Retired men. primary fluctuating pension plan purpose the retired of for guarantee municipal policemen pensioner the firemen living widow, fairly despite or his constant standard the of inflationary economy equality tendencies the and to maintain of position currently person between retired the member and the of holding pensioner ranlc attained his retire- before (cid:127) ment. Judgment Pensions—Application —Res Judicata — of Formula. claim, using wrong retiree’s Plaintiff defendant for- mula to determine the amount each retiree .should receive annuity, . as his retirement must since the fail formula cannot.be.relitigated, plain- decided case and but former thereby adjudicating herein are not tiffs foreclosed from formula, issue whether the prior as determined de- correctly cision-j applied payments has been due since the decision, payments and whether due since former (cid:127) present malcing. date pensions Constitution effective pro- contractual in nature have been consistent with charter city n (Const 19BS,.ari visions Dear- City Charter, $1). t born ch . Municipal Corporations - 32. Pensions — —Maximum Class Rate-m- n Average Compensation. Final city’s plus use longevity maximum elass rate Defendant n n computation plaintiffs’ rights their under prior litigation, arrived at court in- formula ok Dearborn. average than compensation rather their use final as contended by plaintiff Reid, incorrect, retirees since maximum any elass rate does not have relation to what the retiree actually during years service, earned his and the formula depends figures employee’s earning past record, on based on the and, also, the opinion term is not mentioned in either the *6 judgment case which the was determined. of formula Rights 33. Constitutional Law —Retirement —Contractual Sta- Impairment. tus — rights employees systems municipal pension may The under of impaired, systems given not be since such were a contractual provision (Const status a 1963, the new Constitution of 9, 24). art § Rights 34. Same —Contract —Pensions. rights employees city, the retired set of of defendant forth city charter, may in the are contractual and not be impaired (Const 1963, 9, §24; City Charter, 21). art Dearborn ch Judgment Impairment op Rights. 35. Same —Prior — Contract judgment prior To the extent that in a action between same adopted determining and used a formula for plaintiff policemen amount retirement due to retired of benefits municipal pension plan city, and under the firemen of defendant rights city charter, varies the the retirees as set in the of forth neu) is void date after effective of malcing municipal pension systems Constitution contractual (Const 1963, 9, §24; City Charter, 21). art Dearborn ch Appeal Right Inspect 36. and Error —Pension Plan — Records. policemen’s retired contention in action 1Plaintiff firemen’s rights municipal pension pension determination under for plan of city they have a to see the of defendant city correct, Reid, records since the financial of defendant reports public pertaining records to retirement are annuities of; moneys, public inspection, plain- open and as records are special records, have a interest and the record- tiffs plaintiffs requested require discloses the trial court .to defend- necessary .(Const ant inspection records furnish for 9, §23). art Moneys— 37. Constitutional Law —Einancial Records —Public Inspection. requires records, accountings, The Constitution that “all financial reports, reports moneys public audit and other shall be of public open (Const inspection” records and art 23). § Apr Moneys. 38. Words Phrases —Public moneys moneys Public are as “all which shall come defined any any county, any into the township, hands or of officer of of other, district, city village, any municipal school or or of public corporation State, pursuant any provision within this authorizing law such to collect or receive the same” officer (CL 1948, 129.11). § Moneys. 39. Same —Public by governmental Not all held public moneys. are funds officers 40. Same —Public Funds. Public belonging are to the State or to funds defined funds any county political subdivision the State raised for governmental purposes. Municipal Corporations n —(cid:127) — Appropriations — Public Funds ' Pensions. appropriated by payment Funds for benefits public moneys, part since a retirement funds for system salary deductions, come part from funds municipal appropriations come (CLS 1961, 38.559). from Pensions—Appropriations—Governmental Purposes. 42. Same — Appropriation moneys by municipal corporation payment for municipal pensions held, governmental to be purpose. *7 Pensions—Purpose. Same — 43. judiciously pension may A administered potent be a agency fund securing retaining and the services and of most'faithful persons class municipal connected with services efficient of property m which owners and residents municipality a of vitally most interested. Safety Well-Being 44. Same —Public and —Policemen—Firemen. safety well-being general public and municipal of of corporation is policemen the direct concern its and of firemen. and 45. Same —Firemen Policemen —Pension. Payment by municipal corporation annuities policemen governmental held, to its retired and to be a firemen function, policemen as the govern- and function of firemen mental, general pensions and the incentive will enable mu- nicipalities qualified personnel. to attract Inspection. 46. Eecords —Common Law — Every person inspept, personally has a common-law either agent, public records, provided his he has an interest City Dearborn. oe him, enable to maintain or is such that would therein which sought document or record an action which the for defend necessary evidence or can information. furnish System Inspection Municipal Coepoeations oe Rec- — —Pension 47. ords. policemen and suit retired determination firemen for Plaintiff system municipal pension held, amounts due under to have special city pertaining interest in the records sufficient to paid pensions require available and de- funds for city to such records. fendant furnish E.), Appeal Wayne; (George from Bowles J. April at 1966, Division Detroit. 5, Submitted (Docket 1,270.) January No. Decided by Supreme appeal granted March Leave to Court Mich 621. See and Theisen, action Arthur Retired Class N. Firemen Association of Pensioned Policemen and unincorporated George association, Dearborn, an president individually, Morrison, as its against City Michigan munic- Dearborn, others, ipal corporation, accounting and for a deter-' for an provisions moneys mination of due under the policemen’s firemen’s retire- Dearborn’s system. for an accelerated ment Defendant’s motion judgment granted. Plaintiffs’ motion to set aside appeal. Affirmed. denied. Plaintiffs plaintiffs. Thomson,
James Corporation for de- Counsel, Guy, Jr., B. Ralph fendant. brought action This is a class H. P. J. Gillis,
July Retired and individuals and 15, 1964, Association and Firemen Pensioned Policemen *8 against unincorporated association, Dearborn, an they city were Plaintiffs claimed the of Dearborn. owing by them to to moneys additional entitled Cotjet. Opinion the policemen’s provisions of the of certain reason firemen’s sought They system. ac- an retirement inspect discovery rec- counting the financial to moneys owing city to the to ascertain of the ords provisions pertinent the charter them under the and ordinances city. of the defendant judgment a motion accelerated filed Defendant for prior claiming of Dear case, that a Morrison judi 299-972) County (Wayne in res No. born litigation. by instant raised to the issues cata as The circuit granted Wayne county the mo for court judgment. Plaintiffs’ motion accelerated tion for appeal, Plaintiffs’ was denied. set aside questions: (1) raising Is the matter involved two judicataf (2) appellants res Do have the to see city? financial of the records brought by The an action re- Morrison Case was policemen city and firemen Dearborn tired city pay compel defendant provided increased chapter 21 of annuities the Dearborn city in accord with an charter. The circuit court findings agreement between made certain including formula to be used the case ascertaining were entitled to what retirement annui- in the form of increased receive Judgment Morrison was entered Case ties.1 plaintiffs here. years him aof five city entitled to “ “Chapter “This “So far as “The next formula, specifying that: ‘The years retiree’s ‘average final for following necessarily service average service, of service immediately upon ‘average computation, computation is at section during rendered then the annual compensation’ preceding retirement; is an individual final his total excerpt 21.8, salary compensation.’ average the ascertainment his gives first years policeman means: or from retirement, consideration wages annual computation the trial court’s service.’ formula. or fireman paid salary if he Section It a member what the ascertainment has less is there during wages paid 21,28 opinion: each retiree is than provided prgYides his last five *9 Dearborn. oe op Opinion the Court. $195,936.19, in the amount of in the favor of by applying formula at the arrived which sum was judgment covered the The in 1. footnote set forth * * “i* jnem'ber annuity a service retirement shall receive a multiplied average compensation final his equal of to one-fiftieth * * *’ by years creditable service his total hy however, qualified is these words: language, “This * * «i* ipke annuity of member or bene- a serviee compensation, average final or ficiary his esxeeed one-half shall not by pay patrolman a received rate of of the annual seven-tenths first-class, amount is the lesser.’ first-elass, whichever a fireman or too, an individual one for each of the computation, is “The second language setting an outer by limit claimants, qualified is the and it annuity. ceiling upon or the disputed “Finally, computation involves the fluctuation the third language at 21.37. This is found section The formula of benefits. any rank, changed compensation for is that when a rate of means serviee, in the annuities still active grade, position, for those or changed. The formula by beneficiaries are also retirees or received is: * * <!i-x- benefit, beneficiary, annuity, payable a or the other upon changed rate of adjusted based the to an amount shall be compensation rank, grade, position.’ corresponding or the for annuity changed is in relation the amount that the “This means compensation corresponding rank, change for the of grade, in the rate of believed, language, position. pivotal is ‘on The is or beneficiary, benefit, annuity, payable is or based.’ This the term is other annuity pay- The in 21.28 heretofore noted. defined seetion upon beneficiary 21.28 is based under section certain able to annuity concerned, rank, is, grade, position. So far as the is that or retirement, enjoyed upon it is is first derived not from that whieh ascertaining grade, rank, position of last or the retiree hut rather the average found at seetion 21.28. The final by use of the formula the by figure ascertaining compensation average at what is a arrived the salary wages paid during years to the member his last or five years retirement or if has less than five before he then the service salary wages paid during years him his average annual or total process, is, figure at this average arrived the service. rank, grade, compensation position then will determine or final annuity rank, he first draws and that is the retiree when or is in grade, position computation whieh thereafter used under seetion 21.37. increases too, “This, must he an individual determination. Whenever the rank, position 21.37, grade, changed under section then the beneficiary adjustment is entitled annuity to an retiree change compensation in an for that based amount of amount rank, position grade, or in whieh the retiree first found average figure by compensation. computation of his final I find no authority dividing urged upon five as for this the court However, important proviso; there reading defendants. is one together way pertinent provisions all, such a as to harmonize reading specifically 21.28, 21.37 with seetion section it is held that annuity, 21.37, as increased or decreased under seetion shall at compensation rank, for grade, one-half rate no time exceed Opinion op the Court. paid adjusted according
amounts to be
to the
annual
payments
period
annuities and accrued
Octo-
through January
1, 1952,
ber
31, Defendant asserts
Morrison
judicata
controlling
litigation.
res
in this
judicata
The doctrine of res
as stated
our
*10
Supreme
that:
Court is
judgment
“An
final
or decree rendered
existing
upon
the merits without fraud or collusion
competent jurisdiction upon
tribunal
within its
a matter
jurisdiction
rights
is conclusive of the
parties,
privies,
or their
in all other actions or
any
in the
suits
same or
other tribunal of concur-
jurisdiction
points
rent
on the
and matters in issue
proceeding.”
Wyan-
City
in the first
Lilienthal v.
(1938),
dotte
286
604,
jurisdic-
of a court of concurrent
directly upon
point,
plea,
tion,
is, as a
a bar,
parties,
or as evidence, conclusive between the same
upon
directly
question
matter,
same
when
(1894),
another court. Johnson Co. v. Wharton
(14
429).
152
252
US
S Ct
L
608, 38 ed
persons may
In a class action, one or more
be
permitted to maintain or defend an action for them-
persons similarly
selves and various other
situated
exception
1963,
and interested. GCR
208. An
general
person
by judg-
rule
that no
is bound
except
parties
ment
those who are
or stand in
privity
parties
with others who are
exists in the
position
compensation
service,
or
of
one
still
active
or seven-tenths of the rate
grade,
rank,
for the
position
or
of one still in active
service,
any
Any
whichever amount
theory
lesser
other
[sie?J.
interpretation
other
result,
would lead to an absurd
for annuities
enjoyed by
to be
retirees or beneficiaries would
dispropor-
increase
tionately
compensation
to the
of those still
in aetive
In
service.
then,
result
ceiling
proviso
operate
continues to
an
as
outer
upon
limit
and
annuities.
It
policemen’s
noted that when the revised
system
firemen’s retirement
chapter
found at
adopted
23 was
at section
(a)
23.18
thereof,
placed upon
was also
outer limit
n service
annuity.”
619
Dearborn.
oe
v.
op
Opinion
the Court.
represented by
persons
persons
who are so
case of
parties. Hansberry
(1940),
v. Lee
on the record
(61
741).
L
132 ALR
311
32
Ct
85
ed
S
US
parties representing
judgment against
A
against
operative
represented.
general
those
class is
(1853),
(14 L
Smith
Swormstedt
57
288
ed
v.
US
942). This is a rule of
founded on convenience
law
Orphans’
necessity.
Masonic Widows’ and
Infirmary
(1923),
Brothers
v. Hieatt
197
Home
Lightner
(247
34);
(1902),
Ky
v.
301
Mathews
SW
upon
(88
992).
It is based
Minn 333
85
NW
joined
joined
theory
persons
and not
(Brenner
interest
v. Title Guarantee &
a common
Company
[11
NY
NE2d
[1937],
Trust
parties joined may
1010]), that
be
114 ALR
bring
depended
entire merits
forward the
protection
controversy
to their
as a
own
(Hale
[1893],
[33
Ill
Hale
NE
interests
persons
joined
247]) and that the
hot
20 LRA
858,
as
are
sufficiently represented by
who
those
Publishing
joined (Sam
Co., Inc.,
Fox
v. United
*11
[81
6 L
1309,
S Ct
ed 2d
[1961],
(cid:127)Analyzing before this Court the facts the case light we find: of the above, determine in Morrison was to of action The cause policemen of benefits to retired the amount city are entitled. in the Dearborn and firemen in the case to'deter- of action instant The cause police- benefits which retired amount of mine the men in the city The' of Dearborn are entitled. subject The issues have not matter is identical. Opinion op the Court. parties
changed. The were and are before this attempting moneys Court to ascertain the amount of owing pertinent provisions to them under the city. the charter and ordinances of defendant plaintiffs’ they It is now claim en- longevity pay compu- titled to have included in the arriving tation of the formula which is used in at annuity retirement benefits. question chapter
The formula in
found
city
§ 21.8,
of Dearborn
charter.
In this formula
longevity
according
is not
such,
mentioned as
but,
presented by
to the affidavit
controller,
longevity
average
computing
was utilized in
important
wage.
annual
It is also
to note that the
opinion
longevity pay
trial court’s
stated that
computations
included in the
and formula. The
adopted
formula was arrived at
judgment.
the court
included in the formal
it is true that if
While
an incorrect formula was
appealed;
used,
decision of the court could he
collaterally
it cannot now be
attacked. Corbitt v.
(1893),
(35
Rep
Timmerman
Am
A
factor
to be considered would be
impairs
whether the formula used
the rights
policemen
or diminishes the
of retired
light
Const
art 9, 24. Under the facts
presented
and the formula used in the earlier
rights appear
impaired
decision, no
to be
or dimin
ished. For these
Judge
reasons,
decision of
*12
Bowles
conclusive and a bar to later
suits.
(1929),
v. Labadie
doctrine opportunity given. for such trial has been when upon hearing judgment entered the court A upon of the case is consideration parties might fact The court. judg- not convert it into a their consent does added by consent. ment ultimately used to determine indi- formula annuity lengthy arrived at after benefits was
vidual by and deliberation trial court consideration parties. pre- The claims the consent with individually appellants, this Court sented to having previously representatives, been as class fraud or collusion, the merits without decided judicata, of res under the doctrine barred *13 App 607. Cotjkt. op Opinion the they have the also contend Plaintiffs
inspect of the defendant in financial records the according to the lan- claim their “measure order to guage Defendant conténds charter.” the set forth opportunity plaintiffs the afforded were that inspect the raised in the inspect in fact did records and the issue was not This financial records.. here for the first not he heard and will trial court (1966), Gorby Yeomans Mich plaintiffs v.
time. showing were that there no Further, denied is city’s financial records. On access to point figures contrary, makes only have been obtained could used from the city records. appellee.
Judgment affirmed. Costs H. P. with J. J. J., concurred Gums, McGregor, (dissenting). res The doctrine of J. Holbrook, questioned judicata at well to be is too established policy point. it one hand effectuates On this republicae litigation ut putting an end to —interest prevents in the other it litium; and on sit finis being suits successive from harassed dividuals pro CJS, causa. 50 bis vexari eadem —nemo debet purposes Judgments In furtherance of the developed. have been doctrine, two rules general where a rule that a well-settled “It is another judgment as an absolute bar asserted it is action, or the same demand cause action on only every was matter that as to conclusive or defeat action sustain in the former offered might every matter as to other demand, but purpose. hand, the other for that On offered been subsequent demand a different action is on where judgment operates action, cause or estoppel points only issue, as to those matters Theisén of Dearborn. Opinion Dissenting by Holbrook, upon controverted, the determination finding or verdict rendered. In other words, where the second action same the upon every canse of action, is conclusive matter litigated might that whether was have been in the former action, litigated not, fact while if the upon a second action is different cause action, judgment operates estoppel only anas as to the facts *14 questions actually litigated and determined.” 128 ALR 483. Fidelity Guaranty
See, also, United States & Co. (CA McCarthy 1929), (70 1447), 33 F2d ALR (1929), (65 and Creek v. Laski 248 Mich 1113), Michigan Supreme ALR where the Court said.: “ may give ‘the same transaction or state of facts rise to distinct ment judg- or successive of action, causes and a upon upon one will not bar a suit another. judgment although Therefore a in a former suit, between the relating same to the same subject subsequent matter, is not bar ato action, ” when the cause of action is not the same.’ Accordingly, inquiry first must be directed question toward the of whether the Morrison deci- adjudicated sion the same cause of action present plaintiffs have based their suit. If the cause of action open is the same, then the issues still adjudication : must be determined. fully it is
“While established that one who has a against claim agreement another cannot, in the absence of an contrary, to the divide his claim and make * * * subject separate it the actions ‘a contract may give be divisible its terms so as rise more than one cause of action. Thus, if one contracts things to do several at several times, an action lies upon every although agreement default; for, is Ápp j. Dissenting Opinion Holbrook, performance several, and a entire, the contract * * * in its nature.’
is divisible * * * “ bringing on ten ‘The of the suit past estop appellant due, then did not installments, from instituting- the other installments when suits on appellee paid, or ha if not and if was vexed due, pay thereby, it the install must submit rassed * * * Appellant had a of action for ments. monthly being installment, each distinct each separate he was en other, from the therefore bring suit on each installment as became titled to due, ” paid.’ ALR if not plaintiffs sought and recovered In Morrison, provi- pension under the charter benefits increased and the Dearborn, sions specifically period from Oc- covered January plain- through 1961. The 1,1952, tober recover increases in the instant case seek to tiffs annuity payable to re- latter date. The since the payable separate installments, and each tirees is separate gives action. cause of rise merely strength conclusion not diluted this *15 quotation speaks in of a terms because the above contract. provides that art Constitution, pension plan each financial benefits of accrued
“the political system the state and its and retirement obligation thereof a contractual shall be subdivisions thereby.” impaired diminished or shall not be Constitution,1 date the effective After city respect with obligation defendant obligation plaintiffs This is contractual. is these making periodic performed by it i.e., is severable, separate being payments, distinct from and each giving- pay to a each rise and failure to other, 1 January 1, 1964. City v. ok Dearborn. Dissenting Opinion By Holbrook, although they separate action all arise from cause of January agreement. single after Thus, 1, 1964, payment pay annuity a cause each creates
failure to payable, and each of action the moment becomes adjudicated action is distinct from cause cause of in Morrison. subsequent prior January
Payments
1,1964,
but
January
give
separate
rise to
causes
31,1961,
also
may
upon despite
sued
the Mor
of action which
be
prior
judgment. It
is true
to the effective
rison
municipal
retirement
Constitution,
date of the
systems
contractual status. Brown
did
Highland
(1948),
Park
only attempting rights. The to enforce rights obligations therefore are severable *16 give action. Because rise distinct causes
:626 Api? Dissenting Opinion by Holbkook, cause of action in instant case is different from only that in Morrison, issues common to settled judicata. both cases are res (cid:127) According majority opinion, to the the matter of longevity pay in was issue the Morrison case and adjudication. is therefore foreclosed from further Such conclusion not consistent with the record. only support mustered for this statement is the opinion judge proceedings of the trial in the instant employee city. and an affidavit of an of the defendant authority compelling wholly is not all Such at and is irrelevant. The statement the lower court in the present longevity pay that case was considered in legal no Morrison has effect because Morrison judgment speaks for itself. An examination of the only is the Morrison Case itself reliable criterion determining Judge what was or was issue. quite candidly admits that the matter of lon- Gillis pay gevity never was mentioned the court in Morrison. Since issue was considered, never it part is obvious that was not a of the case. More- considering thoroughness over, Morrison extreme
decision, omission cannot be written off a mere inadvertence. Therefore, because the longevity pay issue not an in Morrison, issue judicata not res case is and these fully litigate have a their claims in this regard. sight This should not lose the fact Court
longevity significant pay determining is a factor petitioners. pension rights primary purpose fluctuating pension “The ** * plan guarantee pensioner is to his fairly living despite constant standard widow, n inflationary economy tendencies of the equality position maintain member and attained between the retired person currently holding the rank pensioner before his retirement.” *17 City oe Dearborn. Opinion by Dissenting J. Holbrook, Angeles (1960), App Abbott v. Los 178 Cal 2d Rptr 204, 215, 216, Cal argnes Defendant in its brief that the matter of pay longevity sufficiently has been accounted for including computation pensioner’s init of each average compensation. final First, this would-have longevity no effect those who retired before the pay plan went effect; second, into the extent that possibly this inclusion will increase the size of the. denominator of the fraction used to determine the' retirement rates, it is not consistent with the fluc- tuating provision city benefit of the charter because it will result a lower retirement ratio than would- otherwise be the case if there were no inclusion. appellants’ pensions Moreover, the issue is whether should be increased accordance with the afore- purpose fluctuating provi- mentioned of the benefit longevity payments sion to reflect increases in made' currently employed by to those defendant. Defend- argument not ant’s does face this and, issue, as noted above, the in Morrison is silent on the point. using also
Plaintiffs claim that the defendant is wrong formula determine the amount that each plaintiff association member should receive as his annuity. Since the formula a was matter relitigated. Morrison, 'in cannot issue now be thereby However, are foreclosed adjudicating from the issue of whether the formula, by decision, as determined correctly Morrison has been applied payments defendant to made January payments 31, 1961, since whether the January 1, 1964, since made been consistent provisions the charter with of Dearborn. computations annuity of the In footnote opinion B. included in this of Arthur Theisen are disputed application as an illustration of the of the Dissenting Opinion Holbrook, A ccording formula, forth in a set formula.2 opinion, step majority the first to the footnote average employee’s final the ascertainment compensation. agree that as Mr. Both figure is and it includes lon $6,082.95, Theisen, this step employee. paid pay gevity The second ABTSUM B. THEISEN —POLICE LIEUTENANT 7-16-57 Retired n 2) Dormula — 3) RR= 1) ADC— n $6,082.95 2859. $2,859.00 -- OA $6,082.95 - ADC (Includes Longevity) -j- Defendant’s $6,474.00* - X ADC 1/50 X = *18 Computation 44.161% - 2859. Service yrs 6 mos OB = $2,859.00 - OA = = 260. at 7-16-57 6734. 42.456% + (salary) (long.) Longevity TOTAL MCR - - - Spread 4) Total Present $7,828.00 $8,115.00 $287.00 (Retirement Spread Ratio) Total - Proposed by 5) Thomson = (claimed by $8,115.00 $7,828.00 $3,445.30 defendant) X 42.456% X 44.161% = City $3,456.92 by Paid
$ 11.62 Computation Plaintiffs’ (Ineludes Longevity) 1) $6,082.95 ADC— Service OA ADO - - - 2) Dormula — n =yrs $6,082.95 $2,859.00 X X 1/50 23-1/2 ADC OA = 3) RR = 6,082.95 2,859.00 -H 47% Longevity MCR TOTAL Spread 4) Present Total $7,828.00 $8,115.00 $287.00 Ratio) Spread (Retirement Total 5) = $8,115.00 $3,814.05 X 47% KEY MCR—Maximum Class Rate ADC— RR OA —Retirement —Original Average Annuity Dinal Ratio Compensation [*] Max. for Police Lt. at 7-16-57 oe Dearborn. by Holbkook, Dissenting Opinion on line each formula, set forth the second in the parties, computation is submitted a deter employee’s service retirement an mination annuity employee nuity. is is This immediately upon his retirement. Once entitled again, figure, parties agree on the which is both $2,859. disputed step fluctuating third involves the
The provision charter. result benefit expressed computation percentage is this wage given applied figure all increases this subsequent employees to the date of retire- active suppose hypothetical example, em- For ment. ployee January B retired on named Mr. percentage ratio, retirement his also that
Assume step computing third at arrived figured his on date of retirement as formula, employees given a on If active raise $100 50%. January will ratio of Mr. B pension wage applied his will increase he he increased of the amount of the increase 50% employees. pension given active if his Thus, he will he entitled to an $3,000, *19 $50, $3050. or a total additional plain- Turning Theisen, to the case of Arthur the following computation the third submit tiffs annuity step retirement in the formula. The service compensation 2) by average (step is final divided 1), (step In words, result is other 47%. police lieutenants receive increases as active annuity wages, Theisen’s in- their Mr. should be by the amount of the increase re- creased ceived 47% by police the active lieutenants. computation, however,
In the defendant’s serv- (step by annuity 2) is divided the sum ice of the maximum rate as of the date of retire- class pay plus as longevity ment date retirement. Dissenting Holbrook, by Opinion reduced retirement ratio is thus 42.456% employee, Arthur Thei- is that the retired result percentage given gets the increases a smaller sen, plaintiffs’ police In both to active lieutenants. computation, the dividend is same defendant’s computation, figure, i.e., In $2,859. the defendant’s quotient by larger using a the smaller divisor. is achieved Essentially, point therefore, of con- annuity tention is whether service retirement 2) (step by average be divided should final com- (step 1) pensation contend, as plus maximum class rate at the date of retirement longevity pay at the of retirement, date as defendant contends. Mr. Theisen,
As to difference between the two computations step 3 in the formula are obvious computa- and not insubstantial. If the defendant’s annuity According used, $3,456.92. is his tion plaintiffs’ figures, annuity should be $3,814.05— a difference of on an $357.13 annual basis. In this regard, interesting it is to note line 5 of the defend- computation, ant’s attached hereto. This what says plantiffs’ the defendant will be the result if computations are followed. It is erroneous, because step an examination of 3 reveals that the 42.456% figure using is arrived at the maximum class plus longevity rate as the divisor. Plaintiffs ex- pressly controvert that contention.
Finally, disputed step third in the for- appli- mula, the maximum class rate should have no any First, cation. the does relation to what employee actually during years earned his figure service. It is absurd to use a unrelated employee’s earnings actual to determine the amount annuity annuity of his where the of each retiree is depends determined figures a formula which on employee’s past on *20 based the earning record. The 631 v. Beabborn. on j. Dissenting Ojpiniod Holbrook, step in tliat each the stressed in Morrison court computation for each one em- an individual ployee. term “maximum class rate” is the Second, opinion the in either not mentioned city on The has relied the the Morrison Case. judicata. doctrine, however, That of res defense ways. not be The defendant should works both while it to claim are bound allowed application of the formula con- to use continues judg- figures taining Morrison not authorized authority city The no to use maximum ment. has By affirming computing rate in benefits. class permitting lower Court is court, decision this with formula defendant to meddle as it having fear of its actions reviewed with no chooses authority. by higher makes effec
Moreover, the
Constitution
January 1,
ex
of the formula after
tiveness
§
tremely
of the
Consti
Article
doubtful.
municipal pension systems
gives
a contractual
tution
system
rights
employees
status,
Judges’
Campbell
may
impaired.
Retire
not be
rights
(1966),
The second of defendant the financial records see Article city, affirmative. in the can be answered provides: Michigan Constitution 23 of the *21 632 Mich Dissenting J. by Holbrook, Opinion reports accountings, “All records, financial audit reports moneys public public and other of shall be A open inspection. and records statement of all expenditures public moneys and revenues shall published annually, provided
be and distributed by law.” pertaining If the records to retirement annuities reports public moneys, public they are records open inspection. moneys and as: Public are defined moneys “All which shall come into the hands of any county, any any township, officer or of school city village, any municipal or or of district, other public corporation pursuant or within state, this any provision collect authorizing of law such officer same, receive the shall be denominated public moneys meaning within the of this act.” CL (Stat 3.751). § § 1948, 129.11 Ann 1961 Rev Michigan Supreme The Court held has that not all by governmental public held funds officers are moneys. Pokorny County Wayne The case of v. (1948), public 322 10, defines funds as funds belonging any county political to the or to State governmental subdivision the State raised for purposes. Under this definition, are retirement public moneys? municipal funds Authorization for systems is found in CL and CLS seq., § 38.551 et 1963, as last amended PA (Stat Supp No 57 Ann 1958 Rev Cum and 1963 seq.). § 5.3375[1] et Part of the for the funds retire system salary part ment deductions, come from municipal appropriations. of the funds come from (Stat 5.3375[9]). § CLS 38.559 Ann 1958Rev part At funds, least then, are raised defend city, governmental ant unit. question payment final whether of munic-
ipal pensions governmental purpose. is a That it of Dearborn. Dissenting Opinion by Holbrook, following quotation from indicated is, is § 16. Pensions, Am Jur, pension judiciously administered fund is “A potent agency securing retaining
doubtless faithful efficient of the most class the services municipal with arms of the connected those of men service property every owner in which and resident vitally is most interested.” Cited with approval in v. Dearborn Pension Board O’Connell (1952), See, also, McQuillin, 334 Mich *22 (3d ed), Municipal Corporations §12.143. pensions concerned with for at hand is The case policemen they Certainly when and firemen retire. group public directly servants is more no other safety well-being gen- with the of the concerned governmental, public. Their and if eral function is generous pensions enable munic- the incentive ipalities will qualified personnel, payment attract to certainly governmental a annuities must be such function. support right inspect public for to
Further
in Nowack
found
v. Auditor General
records
(60
1351),
(1928),
In I fail find founda- the statement Judge tion for G-illis to raise this issue in the trial failed contrary, court. from the theOn part very case this By summarily dismissing first. the claims of these plaintiffs place allowing this Court *23 interpretation provisions
its own on the plain- Morrison tiffs with the result any investigating from in foreclosed manner correcting operations pension system. of their would vote I to reverse and remand for further proceedings opinion, in accord with this with costs appellants.