Lilienthal v. City of Wyandotte

• Decision Date: 21 December 1938
• Docket Number: Motion No. 61.
• Citation: 282 N.W. 837,286 Mich. 604
• Parties: LILIENTHAL v. CITY OF WYANDOTTE et al.
• Court: Michigan Supreme Court

286 Mich. 604

282 N.W. 837

LILIENTHAL

v.CITY OF WYANDOTTE et al.

Motion No. 61.

Supreme Court of Michigan.

Dec. 21, 1938.

Mandamus proceeding by Joseph Lilienthal against the City of Wyandotte and others to compel defendants to reinstate plaintiff as a member of the fire department with all back pay and damages. From an order granting the writ, defendants appeal in the nature of certiorari.

Affirmed.Appeal from Circuit Court, Wayne County; Fred S. Lamb, Judge.

Argued before the Entire Bench.

W. Hugh Williams, of Wyandotte, and Frank J. Ortman, of Detroit, for appellants.

William L. Thorp, of Detroit, for appellee.

POTTER, Justice.

Plaintiff, a world war veteran, was employed by the fire department of the city of Wyandotte. In July, 1936, he requested and was granted a leave of absence during the illness of his mother who died July 19, 1936. Plaintiff asked the assistant chief of the fire department for leave of absence until after the funeral of his mother which was granted. She was buried July 21, 1936.

The rules and regulations of the fire department provided that a member should be on duty every other 24 hours,-a member is on duty for 24 hours and the following 24 hours is off duty. The latter is called a leave day. July 22, 1936, was a leave day of plaintiff and he was to report for duty July 23, 1936. He did not so report and the assistant chief, Francisco, in a report to the police and fire commission, communicated this breach of duty. The report was dated July 24, 1936, and stated plaintiff did not report for work July 23, 1936, but did report for work July 27, 1936. This report was erroneous in stating plaintiff reported for work July 27, 1936. He had returned and reported for work July 25, 1936.

The police and fire commission ordered plaintiff to appear before the mayor to answer to the charge of failure to report for duty July 23, 1936. The communication was dated August 3, 1936, and the hearing set for August 19, 1936. A hearing was conducted by the mayor in the presence of the three members of the police and fire commission. The mayor testified (before the civil service commission) that he dismissed the charge against plaintiff on the hearing because of the discrepancy in the dates above mentioned.

September 4, 1936, the mayor addressed a report of the hearing to the police and fire commission stating the charges as presented against plaintiff were true and finding him guilty of being absent from duty on July 23, 1936, without leave, and requested the commission to impose a penalty in order that discipline might be maintained. In consequence, the police and fire commission adopted a resolution that plaintiff must be on duty between the hours of 9 a. m. and 3 p. m. for eight consecutive leave days, commencing on the first leave day after October 8, 1936, without further compensation. The resolution was communicated to the fire chief who was to enforce the disciplinary action. When the fire chief showed plaintiff his orders in this matter, plaintiff informed the chief he would not obey them. The chief waited until October 10, 1936, the day plaintiff was to report for extra duty, and, when he failed to come in, communicated by letter on that day with the police and fire commissioners informing them of plaintiff's non-compliance.

The commission, November 9, 1936, notified plaintiff to appear before the mayor on November 30, 1936, ‘to answer certain charges of official misconduct, wilful neglect of duty and incompetency’ in failing to comply with the disciplinary measures. The hearing was had before the mayor November 30, 1936, as required under the veterans' preference act (1 Comp.Laws 1929, § 901, as amended by Act No. 67, Pub.Acts 1931). December 2, 1936, the mayor signed a formal order of discharge stating his reasons which were: (1) The plaintiff was absent without leave July 23, 1936, with no plausible excuse when he appeared before him August 19, 1936; (2) refusal to comply with the disciplinary measures when informed of them and no excuse for noncompliance, at the hearing of November 30, 1936. He filed a copy of it with the civil service commission. December 11, 1936, plaintiff, by his present counsel, addressed a letter of protest to the mayor requesting that he vacate the order of discharge or communicate with him so that a regular hearing might be had on the matter.

December 29, 1936, a petition was filed with the civil service commission for a public hearing, as provided for by Act No. 78, Pub. Acts 1935. Such hearing was held January 7 and 11, 1937, at which the mayor testified as noted above. The civil service commission had before it substantially the same facts as detailed above and sustained the action of the removing officer, the mayor, in discharging plaintiff from the fire department of the city of Wyandotte.

Plaintiff appealed from the final order of the civil service commission to the Wayne circuit court in pursuance of Act No. 78, Pub.Acts 1935, on March 16, 1937. Plaintiff then filed a declaration. Defendant city filed an answer and plaintiff a counter-answer, and subsequently a motion to dismiss was made by defendant which the trial court provisionally granted for the following reasons:

‘* * * that Act No. 67 of the Public Acts of 1931, as amended, does not make any provision for an appeal; and, second, that under the Firemen's Civil Service Commission, being Act No. 78 of the Public Acts of 1935, the right to appeal and the proofs to be considered are limited to those proofs taken before the commission. This limitation makes the hearing of the case on the declaration, and the answer and the counter-answer of the plaintiff, entirely nugatory, so the motion to dismiss the proceeding, except as to the appeal from the Firemen's Civil Service Commission, is granted, and if the act is held constitutional and the court be allowed to assume the appeal from the Firemen's Civil Service Commission, then this court finds that the action of the Civil Service Commission, in ratifying the order of discharge issued by the mayor in the 2nd day of December, 1936, is without any force or effect.’

The trial court further stated that if the Supreme Court should hold Act No. 78, Pub.Acts 1935, constitutional (which a coordinate branch of the circuit court had held unconstitutional and was on appeal to this court) and applicable to cases of this sort, the motion under consideration should be set aside. The order was made without prejudice to mandamus proceedings to reinstate plaintiff. Thereupon, plaintiff petitioned for a writ of mandamus commanding defendants to reinstate him with all back pay, and damages. An order to show cause was made. Defendants filed an answer denying plaintiff was entitled to the relief prayed and asked the order to show cause be dismissed and the writ of mandamus denied, and that the application for back pay and damages likewise be denied. The trial court granted the writ and restored plaintiff to his position of city fireman because plaintiff did not have what the charter and law required he be given, since the only charge ever preferred against him was his absence from work July 23, 1936, which charge was dismissed by the mayor, according to his testimony, and no charges were subsequently preferred. The writ was issued without prejudice to the defendant city filing charges against plaintiff and following them through in accordance with the city charter and the statute. The court held that since plaintiff had not worked since his discharge, the question of whether he was entitled to any remuneration for the period would be left to the trial on the merits of a case commenced for that purpose against the proper parties. Both parties sought leave to appeal from this order to this court. Appeal in the nature of certiorari was granted.

Plaintiff urges it was error for the court not to order that his salary from December 2, 1936, to the time of hearing, 15 months in all, be paid. Defendants claim the court erred in compelling the reinstatement of plaintiff, in saying defendants did not afford plaintiff a proper hearing under the charter and the law. Defendants contend plaintiff was guilty of laches in filing his petition for mandamus.

The veterans' preference act (Act No. 67, Pub.Acts 1931), § 2, provides:

‘No veteran or other soldier, * * * in any public department * * * of * * * any * * * city * * * shall be removed or suspended, * * * except for official misconduct, habitual, serious or wilful neglect in the performance of duty, extortion, conviction of intoxication, conviction of felony, or incompetency; * * * except after a full hearing before * * * the mayor * * * and at such hearing the veteran shall have the right to be present and be represented by counsel and defend himself against such charges: Provided further, That as a condition precedent to the removal of such veteran, he shall be entitled to a notice stating the cause or causes of removal at least fifteen days prior to the hearing above provided for, and such removal, suspension or transfer shall be made only upon a written order of * * * the mayor, * * *. Provided, however, That where such veteran has been removed, transferred, or suspended other than in accordance with the provisions of this act, he shall file a written protest with the officer whose duty under the provisions of this act it is to make the removal, transfer, or suspension, within thirty days from the day such veteran is removed, transferred, or suspended; otherwise the veteran shall be deemed to have waived the benefits and privileges of this act.’

Act No. 78, Pub.Acts 1935 (the civil service act for firemen), provides:

‘Sec. 13. * * * Nothing in this act contained shall limit the power of an appointing officer to suspend without pay, for purposes of discipline, an employee or subordinate for a reasonable period, not exceeding thirty days * * *.

‘Sec. 14. The tenure of every one holding an office, place, position or...