Mulloy v. Wayne Cnty. Bd. of Sup'rs

• Decision Date: 03 June 1929
• Docket Number: No. 51.,51.
• Citation: 225 N.W. 615,246 Mich. 632
• Parties: MULLOY v. WAYNE COUNTY BOARD OF SUP'RS et al.
• Court: Michigan Supreme Court

246 Mich. 632

225 N.W. 615

MULLOY

v.WAYNE COUNTY BOARD OF SUP'RS et al.

No. 51.

Supreme Court of Michigan.

June 3, 1929.

Appeal from Circuit Court, Wayne County, in Chancery; Clarence M. Browne, Judge.

Bill in chancery by John H. Mulloy against the Wayne County Board of Supervisors and others. From a decree dismissing the bill, plaintiff appeals. Reversed and rendered.

Argued before the Entire Bench.

Edward N. Barnard, of Detroit, for appellant.

James E. Chenot, Pros. Atty., and Frank B. Ferguson, both of Detroit, for appellees.

Stevenson, Butzel, Eaman & Long, of Detroit (John C. Bills, of Detroit, of counsel), for interveners.

NORTH, C. J.

The plaintiff herein, a resident, citizen, and taxpayer of Wayne county, seeks by this bill in chancery to enjoin the defendants from instituting civil service among certain employés of Wayne county under the provisions of Act No. 390, Public Acts 1927. The act is somewhat lengthy, and we will not attempt a detailed recital of its various provisions. Suffice it to note that it provides for three civil service commissioners to be paid on a per diem basis, for classification of county officers and employés, the continuation in office of certain classes, the appointment to, the promotion in, and removal from, classified civil service positions; it regulates and restricts political activities of civil service officers and employés; and specifies a penalty for violations of its provisions.

The plaintiff alleges the act is unconstitutional. This is denied by the defendants. The act was held valid by the circuit court, the bill of complaint was dismissed, and plaintiff has appealed. The constitutionality of this act is assailed on several grounds, among them the following: ‘The Act violates Article 5, section 30 of the Michigan Constitution because it is a local or special act though a general act could have been passed, and no provision for a referendum is contained therein, nor was any referendum had thereon. * * * It does not by a fair construction and interpretation contemplate or make any provision for the inclusion within it of counties which may attain a population of 300,000 or more subsequent to April 1, 1928.’

Article 5, § 30 of the Constitution, provides: ‘The Legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act shall take effect until approved by a majority of electors voting thereon in the district to be affected.’

Is that a local Act? By its title and by section 1 it is made applicable to all counties having a population of 300,000 or over. Wayne county is the only county in Michigan which has a population of 300,000 or more. Next in population is Kent county, and the record contains testimony from which it may fairly be concluded that Kent will not attain a population of 300,000 before 1937. The next most populous county in the state is Genesee, and the record contains proof of an estimate that, by the year 1940, its population will be substantially 241,000, which is 59,000 less than that necessary to make this act operative in Genesee county. Clearly, because of its provision as to population, the act applies to Wayne county only. If it is a reasonable and logical basis of classification considering the subject of legislation, unquestionably a specified population may be made the test of the applicability of a general legislative act; and under such conditions the act will not be construed to be invalid as local legislation. Hayes v. Auditor General, 184 Mich. 39, 150 N. W. 331. But where the subject of legislation is such that population has no obvious relation to the purpose sought to be accomplished, an attempt to make the application of the legislative act dependent on population is unwarranted and amounts to local legislation. Attorney General v. Lacy, 180 Mich. 329, 146 N. W. 871.

It is here urged by the appellant that the requirement of a population of 300,000 in this act is an arbitrary provision designed solely to make the act local in fact and applicable to Wayne county only. It is conceded that civil service as outlined in the act could not be made applicable in an advantageous way to counties of small population; but it is contended that there is no justifiable reason for an attempt to apply it to counties of the population of 300,000 or more and in not applying it to other so-called metropolitan counties, such as Kent and Genesee. It is argued that the need of legislation providing for civil service in these counties exists the same as in a county of 300,000 population; that it may differ in degree but not in kind; and there is not such a substantial difference as justifies the classification made in the act. This argument is not wholly lacking in force and applicability; but we think the record now before us would not justify a determination that the act is invalid on this ground alone. However, it may be noted in passing that the Supreme Court of Wisconsin (in a case very much relied upon by the appellees) has sustained a law providing for a civil service commission in every county in that state having a population of over 200,000. This is of consequence only in that it seems to be somewhat indicative of plaintiff's claim that civil service is applicable to metropolitan communities having a population of less than 300,000. State v. Buech, 171 Wis. 474, 177 N. W. 781.

It is pointed out by the appellant that the act itself contains provisions which show conclusively that, when it was passed by the Legislature, it was known to be and intended to be of local application only; and by its terms it is so framed that it can never become operative in any county other than Wayne. The following are some of the provisions of the act upon which this claim is based:

(1) The title to the act reads in part: ‘An Act to establish and provide a civil service commission in and for counties having a population of three hundred thousand or more;’ etc.

This provision is also embodied in section 1: ‘In all counties having a population of 300,000 or more there shall be a civil service commission.’

There was only one county (Wayne) in Michigan that had the specified population at the time the act was passed; and no provision is made in the act by which it will become effective in other counties as they attain the required population.

(2) Section 2 of the act in part...