Cremer v. Bd. of Cnty. Rd. Com'rs of Alger Cnty., 84.
| Decision Date | 18 May 1949 |
| Docket Number | No. 84.,84. |
| Citation | 37 N.W.2d 699,325 Mich. 27 |
| Parties | CREMER v. BOARD OF COUNTY ROAD COM'RS OF ALGER COUNTY. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE Appeal from Circuit Court, Alger County; Herbert W. Runnels, judge.
Action by Sam Cremer against the Board of County Road Commissioners of the County of Alger, a Municipal Corporation, for unpaid wages. From a judgment for the plaintiff, defendants appeal.
Affirmed.
Before the Entire Bench.
George S. Baldwin, Munising, for appellant.
George C. Quinnell, Marquette, for appellee.
Alleging that he was discharged by defendant in violation of the veterans' preference act, Act No. 205, Pub.Acts 1897, as amended, plaintiff brought suit and had judgment for unpaid wages, which accrued subsequently to his discharge, in the amount of $2,474.66. The defendant, Alger County Board of Road Commissioners, has appealed.
In the trial court the attorneys for the respective parties stipulated that they would ‘present the issue on the right to discharge (plaintiff) without cause to the Court, and to that end agree that the defense made herein may be treated * * * in the nature of a proceeding in certiorari from the decision and order of the Prosecuting Attorney * * * to the end that parties may have a final judgment declaratory of their legal rights on the question of such discharge without cause having been found under so-called Veterans Preference Act.’ A hearing, as provided in the statute, had been had before the prosecuting attorney which resulted in an order by him for plaintiff's reinstatement in his former employment as a maintenance foreman.
Plaintiff is an honorably discharged veteran of World War I. From 1919 to 1936 he was employed by defendant as a general laborer. In 1936 he was made a maintenance foreman. As such he had charge of the trucks, roads and road crew of about 15 men. They were charged with the maintenance of the highways in a designated area of Alger county. The county seems to have been divided into four separate districts. It is not controverted that plaintiff's employment was permanent, not temporary. Plaintiff continued in his employment as such maintenance foreman from 1936 until December 31, 1947. On December 1, 1947, defendant road commission by unanimous resolution dismissed plaintiff as of December 31, 1947, and so notified him.
In accordance with the pertinent statute1, plaintiff protested his discharge. As noted, the statutory hearing before the prosecuting attorney was had. Plaintiff was charged with neglect of duty, incompetency, and lack of cooperation with those working under him. It is our understanding that by the above noted stipulation these claims are now abandoned. In any event, the hearing before the prosecuting attorney resulted in notice by him to defendant as follows:
‘By the authority vested in me by the Veterans' Act * * * I hereby reinstate Sam Cremer to his position as foreman of the Alger County Road Commision, and direct that he be paid compensation from the time of his dismissal at the same rate of compensation as was previously paid him.’
At this stage of the controversy all except one of the employees who worked under plaintiff signed and presented to defendant the following petition:
‘February 11, 1948
‘We, the undersigned, employees of the Alger County Road Commission, hereby request the Road Commission not to reemploy Sam Cremer as foreman as we absolutely refuse to work under him.’
On February 16, 1948, the county road commission persisted in the former removalof plaintiff as foreman, and plaintiff through defendant's superintendent was notified of such action by letter, as follows:
‘At the regular meeting of the Alger County Road Commission held on February 16, 1948, it was decided that in view of the fact that a petition has been filed by all, except one, of the employees working under Sam Cremer while he was active foreman, refuse to work under him if he is reinstated to the same position.
‘Therefore, it is agreed by this commission that he be employed in another capacity, as of this date, February 16, 1948.
Supt. & Engr.'
To the foregoing plaintiff promptly replied:
‘Dear Mr. Depew:
‘Kindly be advised that my reinstatement by the prosecuting attorney for Alger County holds that such reinstatement be as Foreman and that any other employment with the Alger County Road Commission would not be within the meaning of the Veterans Preference Act.
‘It is therefore recommended that the commission officers reconsider its action of February 16, 1948.
‘Yours very truly,
‘/s/ Samuel Cremer’
There was no reconsideration, and the instant suit followed. Defendant's first contention is that notwithstanding the hearing before the prosecuting attorney and his determination that plaintiff should be reinstated ‘to his position as foreman’, defendant had the right to remove plaintiff as foreman. This was on the theory that plaintiff was not protected by the veterans' preference act because he should be considered as being within the statutory provisions which excepts from its protection ‘heads of departments * * * and first deputies of such heads of department’. This contention is not tenable. Plaintiff was only one of several foremen in defendant's employ. The highway work with which this case is concerned was, in Alger county, done under a contract between the state highway commissioner, as first party, and the board of county road commissioners of Alger county. This contract contained numerous restrictions on the powers of the Alger county board of road commissioners which, as we construe this record, was the head of that department in Alger county; and the contract further provided that George L. Depew, with the approval of the first party, be designated maintenance superintendent. It thus appears that the Alger county board of road commissioners was the head of this department and superintendent Depew was its first deputy. Plaintiff was never designated as the head of a department or as a first deputy of the head of a department. The status of plaintiff was the same as that of at least four of defendant's foremen and it is farfetched to consider each of defendant's numerous foremen as a ‘first deputy’ of the head of a department or of the superintendent of Alger county road commission. Plaintiff had no authority over any of the other foremen, nor did any of them have authority over him. Under this record plaintiff's discharge by defendant cannot be considered a lawful discharge as foreman on the theory just above considered.
Defendant also contends that ‘plaintiff, being hired in 1920 as a general laborer, is...
To continue reading
Request your trial
-
Egan v. City of Detroit
...the amount of his award by the sum of money he earned through private consulting work. Plaintiff relies upon Cremer v. Alger County Road Comm'rs, 325 Mich. 27, 37 N.W.2d 699 (1949), where the Court dealt with a similar issue as "There is no merit to defendant's further contention: 'If plain......
-
McLogan v. Craig
...the notice requirement was mandatory. Such an agreement is deemed an abandonment of the other issues. Cremer v. Alger County Road Commissioner (1949), 325 Mich. 27, 37 N.W.2d 699. We have affirmed the trial court's determination that the recount was invalid. That court did not abuse its dis......
-
Jackson v. Detroit Police Chief
...is entitled to the protections the VPA provides. The statute's coverage includes protection from demotion. Cremer v. Alger Cty. Rd. Comm'rs, 325 Mich. 27, 33, 37 N.W.2d 699 (1949). The VPA requires notice and a hearing before taking any employment action against a veteran. M.C.L. § 35.402; ......