In re Fredericks

• Decision Date: 30 June 1938
• Docket Number: No. 91.,91.
• Parties: Appeal of FREDERICKS et al.
• Court: Michigan Supreme Court

285 Mich. 262

280 N.W. 464

Appeal of FREDERICKS et al.

No. 91.

Supreme Court of Michigan.

June 30, 1938.

Proceeding in the matter of Harold Fredericks and another on an appeal to circuit court from an order finding that the dismissal of Harold Fredericks and another from the Fire Department of the City of Highland Park was justified. From an order of the circuit court dismissing the appeal, Harold Fredericks and another appeal.

Affirmed.

Appeal from Circuit Court, Wayne County; Homer Ferguson, judge.

Argued before the Entire Bench.

Baillie & Cary and George H. Cary, all of Detroit, for appellants.

Matthew H. Bishop, of Detroit, for appellees, Members of City of Highland Park, Mich., Police and Fire Commission.

CHANDLER, Justice.

Appellants were employees of the fire department of the city of Highland Park. Charges of incompetency and misconduct were preferred against them in conformity with the charter provisions and following hearing before the police and fire commission they were dismissed. The city had adopted the provisions of Act No. 78, Pub.Acts 1935, and in pursuance thereof writtencharges and answers thereto were filed with the civil service commission, which, after hearing thereon, found the dismissals to be justified. Appellants thereupon took an appeal to the circuit court, which was dismissed on the ground that section 14 of Act No. 78, Pub.Acts 1935, in attempting to provide for an appeal from orders of the civil service commission to the circuit court, imposed nonjudicial functions upon the court, and was, therefore, unconstitutional, violating Mich.Const.1908, art. 4, § 2.

Section 14 of the act provides numerous grounds, any one of which is sufficient, upon which the removal of an employee may be founded. The person sought to be removed is entitled to a written statement of the charges made against him, and if he so desires, may demand a public hearing thereon before the civil service commission, with the further right to appeal to the circuit court from the order of the commission. Although the act contemplates that formal charges shall be preferred, a hearing had thereon, and the decision of the commission to be based upon the testimony so taken, it must be concluded that the commission functions in a capacity which is essentially administrative. Although partaking of that which is judicial, its acts are not truly of such a nature, and are therefore termed quasi judicial functions. This view may appear to be in conflict with the broad language of some of the earlier decisions of this court which held that removal for cause was an exercise of judicial power. Stockwell v. Township Board of White Lake, 22 Mich. 341;Dullam v. Willson, 53 Mich. 392, 19 N.W. 112,51 Am.Rep. 128;People ex rel. Clay v. Stuart, 74 Mich. 411, 41 N.W. 1091,16 Am.St.Rep. 644. However, we believe the rule to the more correctly expressed in Fuller v. Attorney General, 98 Mich. 96, 57 N.W. 33, and State v. Common Council of City of Duluth, 53 Minn. 238, 55 N.W. 118,39 Am.St.Rep. 595, and the act of removing for cause to be primarily administrative, and although judicial in a sense, not an act of such a nature that it requires performance by the judicial branch of the government or permits an appeal thereto.

A decision of the civil service commission upon a hearing to remove for cause, not being the result of judicial action, but being at the most a quasi judicial act of an administrative tribunal, is not subject to review by the courts on appeal, and an attempt by the legislature to create a right of appeal would fail as an unconstitutional endeavor to foist non-judicial functions upon the courts. See City of Aurora v. Schoeberlein, 230 Ill. 496, 82 N.E. 860.

However, the foregoing proposition would be inapplicable in the event that the Legislature did not intend a review de novo by the circuit court but contemplated a review by...