Borseth v. City of Lansing, 32

• Decision Date: 27 November 1953
• Docket Number: No. 32,32
• Citation: 338 Mich. 53,61 N.W.2d 132
• Parties: BORSETH v. CITY OF LANSING et al.
• Court: Michigan Supreme Court

Page 132

61 N.W.2d 132

338 Mich. 53

BORSETH v. CITY OF LANSING et al.

No. 32.

Supreme Court of Michigan.

Nov. 27, 1953.

Pierce, Planck & Ramsey, Lansing, for Lansing Board of Police and Fire Com'rs.

Charles P. VanNote, Lansing, for City of Lansing.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Maurice M. Moule, Asst. Atty. Gen., for appellee.

Before the Entire Bench.

DETHMERS, Chief Justice.

This is an appeal from a circuit court order requiring defendants to restore plaintiff to a position as policeman and to compensate him for loss of wages suffered by reason of their failure to do so immediately upon his application for reemployment. The order was entered under P.A.1951, No. 263, C.L.S.1952, § 35.351 et seq.; Stat.Ann. 1952 Rev. § 4.1486(1) et seq., which provides for rights of public employees who enter the armed forces to reinstatement after relief from military duty.

Section 2 of the act provides, in part:

'Any public employee who leaves a position * * * to perform military duty, * * * and who is relieved or discharged from such duty under honorable conditions, and makes application for reemployment within 90 days after he is relieved from military duty * * * shall----

'(1) If still qualified to perform the duties of such position, be restored to such position * * *;

'(2) If not qualified to perform the duties of such position by reason of disability sustained during such service, such public employee shall be placed in such other position, the duties of which he is qualified to perform, * * *.

'(b) * * * if it is determined that * * *

* * *

* * *

'(2) For any reason it is not feasible for such person to be restored to such department or agency, it shall be determined whether or not there is a position in any other department or agency of the same public employer for which such person is qualified and which is either vacant or held by a person having a temporary appointment thereto or less seniority than the employee returning from military service. In any case in which it is determined that there is such a position, such person shall be restored in service and appointed to such position by the department or agency in which such position exists.'

Section 5(b) provides, in part:

'In case any public employer fails or refuses to comply with the provisions of this act, the circuit court for the district in which such public employer is located shall have power, upon filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions, specifically to require such employer to comply with such provisions and to compensate such person for any loss of wages or benefits suffered by reason of such employers' unlawful action: * * *.'

Defendants contend that section 5(b) undertakes to impose an administrative function on the courts, in violation of Mich.Const.1908, art. 4, §§ 1, 2, dividing the powers of government into three departments; citing Koeper v. Street Railway Comm., 222 Mich. 464, 193 N.W. 221, 226. Involved in that case was the veterans' preference act, P.A.1897, No. 205, as amended by P.A.1919, No. 224, § 2 of which provided that no veteran should be removed from his public employment, except after hearing before the circuit court and only upon its written order. This court held that that provision attempted to delegate an executive or administrative function to the judicial department of government and was, therefore, unconstitutional and void. The act provided for no determination of grounds for removal by any administrative agency, but placed sole responsibility for deciding whether such employee should be removed or not upon the court. This court quoted with approval from the opinion of the trial judge, as follows:

'Said section 2 is unconstitutional, null, and void in that no provision is made in said section or in the act itself specifically setting forth the causes based upon which the order of such removal, suspension and transfer may be made. There being no common standard for determination mentioned in the statute, no judicial question arising under the statute is presented to the court.'

Distinguishable is the instant situation, in which section 2 of the act here involved specifically sets forth the conditions and circumstances under which reemployment is required, thus establishing a standard for determination, and in which section 5(c) thereof places on the employing administrative agency the responsibility for compliance with the requirements of section 2 and, hence, for determining, as provided in that section, the existence or absence of such conditions and circumstances. We do not agree with defendants that under section 5(b) the question thereafter before the circuit court is the same as the one previously before the public employer. Section 5(b) imposes upon the court the judicial function and duty, upon petition, to require compliance with the act. That is the sort of function constantly performed by courts. There is nothing in the act which specifically requires the court, in performing that duty, to reject the public employer's determinations and substitute and follow its own as to whether the employee is still qualified to perform the duties of the position or whether it is feasible to restore him to employment. As already stated, those determinations are expressly required, by section 5(c), to be made by the administrative employing unit. Neither is there anything in the act requiring the court to abandon the general rule and practice, with which the legislature must be deemed to have been familiar, followed in the review of administrative decisions, namely, to decline to usurp administrative functions or to substitute judicial judgment for administrative judgment in the determination of facts, but to confine the judicial role to that of inquiry into whether the administrative agency made such determination as required by law and, if so, to accept it if, and only if, it is supported by evidence and has a sufficient foundation. That this properly comes within the province of the courts appears from Purdie v. Detroit Police Dept. Trial Board, 318 Mich. 430, 28 N.W.2d 283, and cases therein cited. Section 5(b) is, therefore, not, as contended, unconstitutional.

The trial court did not err in denying a motion to dismiss as to defendant board on the ground that it is not a corporate legal entity under the city charter with capacity to sue and be sued. Defendants concede that C.L.1948, § 613.35, Stat.Ann. § 27.765, provides for service of process on unincorporated public boards where the right to bring suit against them is conferred by law, but contend that no right to sue defendant board is conferred by law. P.A.1951, No. 263, itself confers such right in providing that only the employer shall be deemed a necessary party respondent to any action such as this and in defining a 'public employer' as any department, agency or instrumentality of any municipality employing a public employee in a position. Defendant board is such employer.

Defendants say that plaintiff waived his right to reinstatement because, at the time of his entry into military service, he resigned rather than to take a leave of absence as permitted under a resolution of defendant board and a provision of city charter. The statute does not make the right to its benefits dependent upon how a public employee separated himself from his employment to perform military duty. It simply applies its beneficient provisions to 'any public employee who leaves a position * * * to perform military duty'. That statutory language covers plaintiff's...