Brady v. City of Detroit, 1

• Citation: 91 N.W.2d 257,353 Mich. 243
• Decision Date: 15 July 1958
• Docket Number: A,No. 1,1
• Parties: Robert J. BRADY and Andrew Piontek, Plaintiffs and Appellants, v. CITY OF DETROIT, a Michigan Municipal Corporation, Department of Civil Service, Walter D. Alles, James V. Bellanca and Anthony Tasknick, Members thereof, and Department of Board of Fire Commissioners, Charles Creedon, Paxton Mendelsohn, David Pollack and James Mahon, Members thereof, Defendants and Appellees, and Detroit Firefighters Association, a Michigan Corporation, Intervening Defendant. pril Term.
• Court: Supreme Court of Michigan

Page 257

91 N.W.2d 257

353 Mich. 243

Robert J. BRADY and Andrew Piontek, Plaintiffs and Appellants, v. CITY OF DETROIT, a Michigan Municipal Corporation Department of Civil Service, Walter D. Alles, James V Bellanca and Anthony Tasknick, Members thereof, and Department of Board of Fire Commissioners, Charles Creedon Paxton Mendelsohn, David Pollack and James Mahon, Members thereof, Defendants and Appellees and Detroit Firefighters Association, a Michigan Corporation, Intervening Defendant.

No. 1, April Term.

Supreme Court of Michigan.

July 15, 1958.

Daniel G. Shea, Detroit, Harry E. Warning, Detroit, of counsel, for appellants.

Nathaniel H. Goldstick, Corporation Counsel, Robert Reese, Asst. Corporation Counsel, Detroit, for appellees City of Detroit et al.

Rothe, Marston, Mazey, Sachs & O'Connell, Detroit, for appellee Detroit Firefighters Ass'n.

Before the Entire Bench.

CARR, Justice.

The plaintiffs herein are members of the fire department of the city of Detroit. On behalf of themselves and others similarly situated they filed suit in the circuit court of Wayne county seeking a declaratory decree, under the statute ¹, determining their seniority and promotional rights. The bill of complaint avers that in accordance with charter provisions of the city of Detroit the plaintiffs made applications for positions in said department and otherwise complied with the provisions of the charter. Thereafter they were duly certified and placed on the eligible list by the civil service commission of the city. In the meantime this country became engaged in World War II and at the time of certification plaintiffs, with the exception of Piontek, had been inducted into the armed forces. Piontek was likewise so inducted prior to receiving notice to appear for the required physical examination.

Following discharge from the military service plaintiffs were duly appointed as members of the fire department and began active service therein. It is their claim that under charter provisions relating to the civil service commission, Rule XIV of said commission, and Ordinance 38-E of the city of Detroit, they have seniority and promotional rights based on the dates of certification. It was further alleged by plaintiffs in their bill of complaint that the defendant Board of Fire Commissioners had refused to recognize such rights, and, in making promotions, were giving priority to other members of the department who were certified subsequent to plaintiffs but who entered actual service as members of the department before plaintiffs did so. It thus appears that the actual contest is between plaintiffs and other members in the department. The Detroit Firefighters Association intervened as a party defendant, denying the right of plaintiffs to preferential treatment and upholding the position of the Board of Fire Commissioners.

The defendants in their answers to the bill of complaint denied that plaintiffs were entitled to the seniority and promotional rights asserted by them, averring that Title IV, Chapter XV, section 12, of the charter is controlling and that in accordance therewith promotions in the fire department must be made on the basis of length of actual service, without reference to date of certification to the eligibility list. The trial court sustained defendants' claim and entered a decree accordingly, reciting that the said charter provision prevails over the ordinance of the city and the rule of the civil service commission, above cited. Plaintiffs have appealed.

Plaintiffs direct attention to Title IV, Chapter II, of the charter, by which a system of civil service for municipal employees is established. Said chapter is comprehensive in its provisions and in terms applies generally to municipal offices, departments and commissions of the city. Specific emphasis is placed on section 15 of said chapter, which reads in part as follows:

'The head of any department or office in which a position classified under this chapter is to be filled shall notify the Commission of that fact and the Commission shall certify to the appointing officer the name and address of the candidate standing highest upon the eligible list for the class or grade to which such position belongs. In regard to positions involving common or unskilled labor, the Commission shall adopt and publish rules and regulations outlining practices and procedure with respect to such employment not inconsistent with the provisions of this Charter relative to civil service. The appointing officer shall notify said Commission of each position to be filled separately, and shall fill such position by the appointment of the person certified to him by the Commission therefor, which appointment shall be on probation for a period to be fixed by the rules. At or before the expiration of the period of probation, the head of the department or office in which a candidate is employed may, with the consent of said Commission, based upon the written reasons submitted to it, discharge him, or the commission may transfer him to another department with the consent of such department. If not discharged prior to the expiration of the period of probation, his appointment shall be deemed complete.'

Pursuant to authority granted by the charter the Civil Service Commission adopted Rule XIV, above mentioned, which provided that persons certified to the classified service of the city after having been inducted into the armed forces of the country should be entitled to seniority rights from the date of certification, on compliance with the conditions prescribed for actual entrance into municipal employment. Ordinance 38-E of the city of Detroit, effective September 20, 1945, likewise provided seniority for veterans, commencing with date of certification into the classified service contemplated by the pertinent provisions of the charter. On behalf of appellees it is insisted that such provisions of Rule XIV and Ordinance 38-E are repugnant to Title IV, Chapter XV, section 12, of the charter, and that the trial court was correct in so...