Duncan v. Wayne Cnty.

• Decision Date: 06 January 1947
• Docket Number: No. 33.,33.
• Citation: 316 Mich. 513,25 N.W.2d 605
• Parties: DUNCAN v. WAYNE COUNTY et al.
• Court: Michigan Supreme Court

316 Mich. 513

25 N.W.2d 605

DUNCAN

v.WAYNE COUNTY et al.

No. 33.

Supreme Court of Michigan.

Jan. 6, 1947.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County, in Chancery; John v. brennan, judge.

Suit by James L. Duncan against the County of Wayne, a municipal corporation, the Civil Service Commission, and others, to determine whether the county civil service act is applicable to plaintiff as clerk in the office of the circuit court commissioner for Wayne county. From a decree of dismissal, plaintiff appeals.

Decree affirmed.

Before the Entire Bench.

Buckingham, Piggins & Rehn, of Detroit, for plaintiff and appellant.

Gerald K. O'Brien, Pros. Atty., and Arthur L. Robbins and Philip A. McHugh, Asst. Pros. Attys., all of Detroit, for defendants and appellees.

SHARPE, Justice.

This is a suit to determine whether Act No. 370, Pub.Acts 1941, Comp.Laws Supp.1945, § 1464-11 et seq., Stat.Ann. 1946 Cum.Supp. § 5.1191(1) et seq., known as the county civil service act, is applicavle to plaintiff as a clerk in the office of the circuit court commissioner for Wayne county.

Plaintiff, James L. Duncan, was employed in the office of the circuit court commissioner on or about February 16, 1937. On December 1, 1942, he carried a budgetary title of ‘assistant chief clerk.’ Subsequent to the adoption of the county civil service act, he was classified by the Wayne county civil service commission as ‘clerk 2.’ His salary was not changed by the change in classification, nor were his duties affected by such classification.

On November 9, 1944, plaintiff began a suit to enjoin defendants from attempting or continuing to classify or reclassify him as an employee of the office of the circuit court commissioner and for a declaration that Act No. 370, Pub.Acts 1941, does not apply to the employees in the office of the circuit court commissioner of Wayne county. An order to show cause was issued upon the filing of plaintiff's bill of complaint. On December 11, 1945, the trial court filed a written opinion directing the entry of a decree dismissing plaintiff's bill of complaint. On January 9, 1946, a decree was entered in conformity with the opinion filed.

Plaintiff appeals and urges that the office of circuit court commissioner is judicial in nature; that the civil service act cannot apply to the judiciary under the separtion of governmental powers under the Constitution; that the act does not, under its own terms, apply to the judiciary; and that if the act does apply to the judiciary, clerks in the circuit court commissioner's office would be exempt under section 10(a)(4).

Following are portions of the act in question which are material to the issues involved:

‘Sec. 12. * * * The powers and duties of the commission shall be as follows:

‘(a) It shall classify all the offices and positions of employment with reference to the examination herein provided for, excepting as herein otherwise provided;

‘(b) Shall from time to time make, in accordance with the provisions hereof, rules adapted to carry out the purposes of this act and not inconsistent with its provisions for the examination and selection of persons to fill the offices and positions in the classified service, which are required to be filled by appointment, and for the selection of persons to be employed in the service of the county; * * *.’ Comp.Laws Supp.1945, § 1464-22.

‘Sec. 10. * * * The civil service of the county is hereby divided into the unclassified and classified services.

‘(a) The unclassified service shall include:

‘(1) Officers elected by popular vote and persons appointed to fill vacancies in such elective offices;

‘(2) Officers and employees for whom the constitution specifically directs the manner of appointment;

‘(3) Members of boards and commissions required by law to be appointed;

‘(4) A deputy or assistant in each of the elective offices, who in the case of a vacancy in the elective office or inability of such elective officer to perform his duties, would be entitled to perform the duties of the office until the vacancy is filled or the inability removed;

‘(5) Assistant prosecuting attorneys;

‘(6) Commissions appointed by the board of supervisors, or by the board of county auditors, under the general law of the state.

‘(b) * * * The classified service shall comprise all positions not specifically included by this act in the unclassified service.’ Comp.Laws Supp.1945, § 1464-20.

Plaintiff's position as a clerk in the circuit court commissioner's office not being specifically within the six statutory exemptions may not be exempted unless the office of circuit court commissioner is a judicial office.

The Constitution of Michigan of 1835 makes no mention of the circuit court commissioner. Such appears for the first time in the Constitution of 1850, art. 6, § 16, the language being identical with that of the Constitution of 1908, art. 7, § 21. However, the office of circuit court commissioner was known and existed in Michigan prior to the adoption of the 1850 Constitution. See, McClintock v. Laing, 19 Mich. 300.

The judicial powers of a circuit court commissioner shall not exceed those of a judge of the circuit court at chambers. See, Constitution 1908, art. 7, § 21; Chandler v. Nash, 5 Mich. 409;Streeter v. Paton, 7 Mich. 341.

In the matter of Burger, 39 Mich. 203, we said:

‘Circuit court commissioners are chosen under the provision of the Constitution empowering the electors of each county to elect officers who may be vested with judicial powers ‘not exceeding those of a circuit judge at chambers.’ Art. 6, § 16. But as the Constitution had already conferred the judicial power of the State upon certain courts-Art. 6, § 1-this section, as we have frequently had occasion to declare, permitted giving to the commissioners judicial powers in a very subordinate sense only; powers of the sort that are usually denominated quasi judicial; such as are appropriate for the judge's chambers rather than for the court. It is not competent for the Legislature to empower them to try titles to property; Waldby v. Callendar, 8 Mich. 430;Case v. Dean, 16 Mich. 12; or to decide upon the right to the custody of children; Rowe v. Rowe, 28 Mich. 353; or in short, to exercise the usual powers of courts. * * * In short, the circuit court commissioner is a subordinate and assistant to the circuit court rather than an independent judicial officer. * * *

‘In other words, the determination whether the judicial function has or has not been properly and legally exercised in any particular case, is necessarily the exercise of judicial power, and therefore jurisdiction in respect to it cannot be conferred on an officer elected merely for ministerial and chamber duties.

‘No doubt the statute, Comp.L. ch. 223, empowers circuit court commissioners to issue writs of habeas corpus; but this authority is limited and restrained by the Constitution, and cannot extend to any case where a consideration and decision of the question raised would be an exercise of the judicial power. The cases are therefore few in which the commissioner would be empowered to act at all.’

In Rosenthal v. American Construction & Realty Co., 262 Mich. 91, 247 N.W. 117, 118, we said:

‘The Constitution expressly vests the judicial power in the Supreme Court, circuit courts, probate courts, justices of the peace, and such other courts of civil and criminal jurisdiction as the Legislature may establish by general law (article 7, § 1). Acting under the above-noted constitutional authority, the legislature created the judicial office of circuit court commissioner, and vested it with limited judicial powers. The grant of such jurisdictional powers is covered in part by [3] Comp.Laws 1929, § 14964 et seq. The jurisdiction in a circuit court commissioner is limited to that conferred by the Legislature. In summary proceedings, as in other proceedings before him, the...