Gray v. Hakenjos, 56

• Citation: 115 N.W.2d 411,366 Mich. 588
• Decision Date: 18 May 1962
• Docket Number: No. 56,56
• Parties: Sidney C. GRAY, Plaintiff and Appellant, v. Edwin A. HAKENJOS, Clerk of the Common Pleas Court for the City of Detroit, and the Honorable George T. Cartwright et al., Judges of the Common Pleas Court for the City of Detroit, in their official capacities but not individually, Defendants and Appellees. *
• Court: Supreme Court of Michigan

Page 411

115 N.W.2d 411

366 Mich. 588

Sidney C. GRAY, Plaintiff and Appellant, v. Edwin A. HAKENJOS, Clerk of the Common Pleas Court for the

City of Detroit, and the Honorable George T. Cartwright et

al., Judges of the Common Pleas Court for the City of

Detroit, in their official capacities but not individually,

Defendants and Appellees. ^*

No. 56.

Supreme Court of Michigan.

May 18, 1962.

William G. Comb, Detroit, Meyer Weisenfeld, Detroit, of counsel, for plaintiff and appellant.

Samuel H. Olsen, Pros. Atty. for County of Wayne, Aloysius J. Suchy and F. Clifton Lind, Detroit, Asst. Pros. Attys., for defendants and appellees.

Before and Entire Bench.

KAVANAGH, Justice.

Plaintiff appeals from an order of the circuit court for the county of Wayne dismissing his bill of complaint to obtain injunctive relief against the clerk and judges of the common pleas court for the city of Detroit from removing him as a bailiff. Plaintiff contends the court and the clerk are not authorized by statute to remove a bailiff for nonfeasance in office.

The clerk of the common pleas court for the city of Detroit filed a petition before the common pleas court asking for removal of plaintiff from his duties as bailiff of the court for 2 reasons:

1) That plaintiff has abandoned and vacated his office in violation of the provisions of C.L.S.1956, § 728.23 (Stat.Ann.1959 Cum.Supp. § 27.3674) by reason of failing to serve and execute process delivered to the plaintiff by the common pleas court for the city of Detroit for extended periods of time prior to the filing of this petition.

2) That plaintiff has abandoned and vacated his office in violation of the provisions of the statute by reason of having ceased to be a qualified resident of the city of Detroit and having become a resident of Royal Oak township, Oakland county, Michigan.

The court issued an order to show cause why the petition should not be granted. Plaintiff then filed his bill of complaint in the circuit court seeking to enjoin the clerk and the members of the common pleas court from removing him from the office of bailiff. The bill alleged the judges of the common pleas court have no authority or jurisdictions to discipline or remove a bailiff for nonfeasance. The complaint further alleged this subject has been pre-empted by the legislature of the State of Michigan, and jurisdiction and authority in the common pleas court to act in removal proceedings exists only in cases of misfeasance or malfeasance.

Defendants--judges of the common pleas court and its clerk-moved to dismiss the bill of complaint on the grounds that (1) it did not state a cause of action cognizable in a court of equity; (2) the subject matter of the bill of complaint is now moot and academic; and (3) the plaintiff has an adequate remedy at law in the nature of appeal from the order of the common pleas court.

Defendants' motion to dismiss was presented in the trial court. After a hearing the trial judge entered an order dismissing the bill of complaint. The trial court stated the common pleas court has inherent power to control all personnel under its jurisdiction, including bailiffs, and to remove them from office upon proof of nonfeasance as well as malfeasance and misfeasance. The court went on to say if the legislature attempted to limit the reasons for removal of court personnel, such act would be unconstitutional as being in violation of the separation of the powers between the legislative and judicial branches of government.

Plaintiff on appeal raises 2 questions:

1) In the creation and establishment of the office of common pleas court bailiff, did the legislature of the State of Michigan have the authority to define the term of office and limit the grounds for removal from office of such bailiff?

2) Where the legislature has defined and limited the grounds for removal from office of common pleas court bailiffs to misfeasance and malfeasance in office, do the judges of said court have inherent power to remove such bailiffs upon proof of nonfeasance in office?

C.L.S.1956, § 728.23 (Stat.Ann.1959 Cum.Supp. § 27.3674) has the following direction concerning prompt service of process:

'Such bailiffs of the city in which the court is located shall promptly serve or cause to be served and execute all process, writs and/or orders delivered to them as herein provided * * *.'

C.L.1948, § 728.28 (State.Ann.1959 Cum.Supp. § 27.3679) sets forth the grounds for removal of bailiffs by common pleas judges in the following manner:

'And it shall be the duty of every such court to compel bailiffs serving process out of such court to perform their duties, to examine into complaints against them, to determine their guilt or innocence of misfeasance and/or malfeasance in office and to discipline any offending bailiffs in manner as herein provided. * * * In the event such bailiff shall be found guilty of any misfeasance and/or malfeasance in office as herein defined, the trial judges shall have power, in their discretion, as follows: (a) permanent removal from office of such officer; (b) suspension from office for a definite period; (c) a finding of contempt of court and the imposition of a penalty therefor as provided by law.' (Emphasis supplied.)

Justice Carr writing in the case if In re Cartwright, 363 Mich. 143, 108 N.W.2d 865, held that misfeasance, as a cause for removal from office, is a default in not doing a lawful thing in a proper manner, or omitting to do it as it should be done. Justice Carr raised this question:

'Did the acts of the defendant on the basis of which the order of removal was made constitute misfeasance within the meaning of the section of the controlling statute * * *?'

He proceeded to hold that the fee-splitting arrangement into which defendant entered with his fellow bailiff enabled him to receive compensation for services that he did not personally render; that defendant's lack of attention to the work of his office was not consistent with his duties as a public officer; that the arrangement made was not...