Kortering v. Muskegon , 41 Mich. App. 153 ( 1972 )

41 Mich. App. 153 (1972) 199 N.W.2d 660

KORTERING
v.
MUSKEGON.

Docket No. 12891.

Michigan Court of Appeals.

Decided May 26, 1972.

Marcus, McCroskey, Libner, Reamon & Williams (by Vernon D. Kortering), for plaintiffs on appeal.

Poppen, Street, Sorensen & Engle, for defendants on appeal.

Before: R.B. BURNS, P.J., and HOLBROOK and O'HARA,^[*] JJ.

R.B. BURNS, P.J.

This is a class action^[1] brought by plaintiffs to compel the City of Muskegon to provide paid and trained guards at various highway crosswalks in the City to assist children at such crosswalks as they proceed to and from their schools. For many years prior to the 1971-72 school year defendant had utilized trained crossing guards. Plaintiffs appeal from the trial court's summary dismissal of their complaint.

Because of the nature of plaintiffs' requested relief, i.e., mandamus,^[2] they were burdened with a high degree of proof. A writ of mandamus will issue only if plaintiffs prove they have a "clear legal right to performance of the specific duty sought to be compelled" and that defendant has a "clear legal duty to perform such act". Toan v McGinn, 271 Mich. 28, 34 (1935); Iron County Board of Supervisors v Crystal Falls, 23 Mich. App. 319, 322 (1970). This Court will not interfere with the trial court's refusal to issue a writ of mandamus unless it is evident that such refusal constitutes a clear abuse of its discretion. Spalding v Spalding, 355 Mich. 382 (1959); Parraghi v Pizzimenti, 37 Mich. App. 290 (1971).

In our view the trial court's decision to grant summary judgment to defendant on the ground that plaintiffs failed to state a claim upon which relief could be granted^[3] was entirely proper.

In attempting to establish the "clear legal duty and right" preconditions to mandamus issuance, plaintiffs rely on MCLA 691.1402; MSA 3.996(102) which provides in part:

"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel."

This statutory language does not impose a duty to provide crossing guards with "such precision and certainty as to leave nothing to the exercise of discretion or judgment". Toan v McGinn, supra, p 34; Iron County Board of Supervisors, supra, p 322.

The determination of providing general and auxiliary services by a city should be left to the discretion of the city officials. See Cicotte v Damron, 345 Mich. 528 (1956).

Affirmed. No costs; a public question.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] See GCR 1963, 208.

[2] See GCR 1963, 714.

[3] See GCR 1963, 117.2(1).