Cicotte v. Damron, 76
| Decision Date | 14 May 1956 |
| Docket Number | No. 76,76 |
| Citation | 345 Mich. 528,77 N.W.2d 139 |
| Parties | John CICOTTE, Plaintiff and Appellee, v. Woodrow DAMRON, Defendant and Appellant. |
| Court | Michigan Supreme Court |
Edward N. Barnard, Detroit, for defendant-appellant.
Philip J. Neudeck, Detroit, for plaintiff-appellee.
Before the Entire Bench.
Plaintiff filed an information in the nature of quo warranto in the circuit court for Wayne county to test the right of the defendant to hold the office of 'inspector' in the police department of the city of Ecorse in said county. The circuit judge who heard the matter, after taking much testimony, entered an order ousting the defendant from the office of 'assistant chief' of said police department and the defendant appeals.
In the information filed and in the order of ouster entered the office in question is referred to as being second in 'rank' or 'command' in said department.
On January 14, 1954, and for some time prior to that date, the plaintiff held the office of 'assistant chief' of said police department. On that date the police and fire commission of said city changed the rules governing the department of police, and as a result the plaintiff was notified that his rank of assistant chief of the police department had been abolished and that he was transferred to the uniform division as lieutenant, with no change in salary. The same communication informed him that the office of inspector had been created, to be No. 2 in order of rank in the department. Thereupon plaintiff filed the instant petition to test the right of the defendant, who was promoted to the office of inspector, to hold an office 'second in rank' in the department.
The substance of plaintiff's claim is that the commissioners merely changed the name of the office, from assistant chief to inspector, without any change in duties or authority. The defendant claims that the police and fire commission had the legal authority, under the city charter and the regulations of the department, to abolish the office of assistant chief, to establish the office of the inspector, change the powers and duties of said office, and to place the inspector in second rank in the department; that the commission had done so, had appointed the defendant as inspector, and that there was no longer an office of assistant chief to which plaintiff could be restored.
Despite much testimony taken tending to confuse the real issue, the legal question remains the same--did the police and fire commission have authority to abolish the office of assistant chief of the department, create the office of inspector, change the powers and duties of said office, and place the incumbent of that office second in rank and command, in the department?
At the outset in considering the matter, it should be noted that another phase of the dissension evident in the municipal affairs of Ecorse, in connection with the powers and authority of the police and fire commission, was recently before this Court in Royal v. Ecorse Police & Fire Commission, 345 Mich. 214, 75 N.W.2d 841. In that case decision turned on the question whether the commission, acting as a trial board in holding a hearing, under a provision in the city charter authorizing the commission to discipline or discharge a member of the department, had afforded Alvin Royal a proper hearing and opportunity to be heard. The hearing resulted in an order by the commission demoting Royal from chief of police to lieutenant, although only 4 of the 5-member commission had sat as a board to hear and decide the matter. Two of those 4 members were the only witnesses sworn; and they testified against Royal. Then they acted as members of the board of police and fire commissioners in deciding the matter. This Court held that Royal did not receive a fair and impartial trial and affirmed the trial court which had set aside the proceedings. The difference between that case and the present situation is plain. In the instant case there was no occasion to have such a hearing, under the charter. The plaintiff was not charged with misfeasance, nonfeasance or malfeasance in office. The question here is whether the commission had the authority to abolish the office of assistant chief of police, change the powers and duties of that office, and create the rank of inspector.
Applicable to the instant case, the city charter provides:
1
Pursuant to the foregoing charter authority, the police and fire commission adopted rules and regulations, which were amended on January 14, 1954. The rank of assistant chief of police was abolished and the office of inspector was created, to rank next to the chief of police in command of the department. Plaintiff claims that this merely changed the name of the 'second in command' from assistant chief to inspector, was not in good faith, was for political purposes, and that it left plaintiff still in office as the assistant chief of police. The defendant claims that the commission had the authority to appoint an 'inspector' as the 'second in command,' with new duties and to eliminate the rank of assistant chief of police.
Prior to the change, section 9 of the rules and regulations of the department stated the duties and powers of the assistant chief of police as follows:
'The assistant chief of police shall report direct to the chief of police and assist him in the execution of his office and shall have such powers and perform such other duties as the chief from time to time may direct.
'He shall, in the absence of the chief, act in his stead and during such absence shall possess all the powers of the chief in the conduct of the business of the department and in carrying out the orders and policies of the chief, and shall not alter, revise or countermand such orders or policies except in case of emergency.
'He shall exercise...
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Huff, In re
...N.W. 96; MacDonald v. DeWaele, 263 Mich. 233, 248 N.W. 605; Attorney General v. Guy, 334 Mich. 694, 55 N.W.2d 210; and Cicotte v. Damron, 345 Mich. 528, 77 N.W.2d 139, it was held that one does not have a contractual right to the public office to which he has been elected. With even less fo......
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Craig v. City of Detroit Police Dept.
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Continental Oil Co. v. Oil Conservation Commission
...Worth, 1949, 147 Tex. 505, 217 S.W.2d 664; Bartkowiak v. Board of Supervisors, 1954, 341 Mich. 333, 67 N.W.2d 96; and Cicotte v. Damron, 1956, 345 Mich. 528, 77 N.W.2d 139. This is the net effect of the admission and consideration by the trial court of the additional evidence in this case. ......
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