Olson v. City of Highland Park

• Citation: 20 N.W.2d 773,312 Mich. 688
• Decision Date: 11 January 1946
• Docket Number: Nos. 55,October term.,, No. 57,56,s. 55
• Parties: OLSON v. CITY OF HIGHLAND PARK. COULTER v. SAME. RUSSELL v. SAME.
• Court: Supreme Court of Michigan

312 Mich. 688

20 N.W.2d 773

OLSON

v.CITY OF HIGHLAND PARK.

COULTER

v.SAME.

RUSSELL

v.SAME.

Nos. 55, 56, No. 57, October term.

Supreme Court of Michigan.

Dec. 3, 1945.

Rehearing Denied Jan. 11, 1946.

See 21 N.W.2d 286.

Appeal from Circuit Court, Wayne County; Joseph A. Moynihan, judge.

Action by Fred E. Olson against City of Highland Park, to recover compensation for overtime services, consolidated with actions by Frances Coulter and Julian F. Russell against same defendant, also to recover compensation for overtime services. From a judgment for the defendant in the first case, the plaintiff Fred E. Olson, appeals, and from judgments for the defendants in the other two cases, the defendants appeal.

Judgment in the first case affirmed, and judgments in other two cases vacated and remanded for entry of judgment in conformity with opinion.

Before the Entire Bench.

William B. Giles and Julian F. Fussell, both of Detroit, for appellants.

Earl B. Young, City Atty., of Highland Park, and Claude H. Stevens, of Detroit, for defendant City of Highland Park.

BUSHNELL, Justice.

These three cases were tried together in the circuit court, and by stipulation were consolidated on appeal. In the first case, Fred E. Olson, a member of the police force of the city of Highland Park, brought an action for compensation for overtime services rendered in excess of 40 hours per week between the dates of November 10, 1940 and May 24, 1943, in the amount of $1,635.29. The circuit judge, sitting without a jury, held that, being an officer of the police department, Olson was not entitled to recover for overtime pay.

In the second case, Frances Coulter, a police matron of the city of Highland Park, sought a judgment in the sum of $3,538.92 as compensation for overtime services rendered in excess of 40 hours per week from November 10, 1940 to October 2, 1943. The trial judge held in her action that, because of the provisions of the charter of the city of Highland Park, and the rules and regulations adopted by its police and fire commission, which specifically state in Section VI of Chapter X thereof that police matrons are not members of the police force, that she was entitled to recover such overtime pay.

In the third case, Julian F. Russell, a switchboard operator, who performed services for the police department, fire department, and city hall, and claimed compensation for overtime service in the amount of $1,684.22, was given a judgment on the ground that he was a city employee. It should be noted that in the Coulter and Russell cases the amount of overtime compensation allowed was based upon the testimony of Lilias F. Evans, controller of the city of Highland Park, who computed the amount these plaintiffs should receive in the event the court held they were entitled to such overtime compensation.

In the Olson case the plaintiff appealed and in the Coulter and Russell cases the city appealed. Olson's position is that he was an employee and that he rendered overtime service under threat of suspension and because his superior had determined that it was required because of necessity or impairment of city service. He claims he is entitled to additional compensation therefor under the provision of paragraph (c), § 33 of chapter XXV of the charter of the city of Highland Park, which reads: ‘Rate of Compensation. The rate of compensation for excess service rendered by any employe of the City of Highland Park of whom service in excess of the regular service day or the regular service week shall have been required in the case of emergency, as here provided, shall be for Sundays and other holidays twice the regular rate of compensation, and for other days one and one-half times the regular rate of compensation.’

The city contends that the trial judge was correct in holding that Olson was not an employee within the purview of this provision of the charter. Olson was appointed as a probationary patrolman on January 28, 1936, by the Police and Fire Commission, subject to certain conditions which were satisfied on or before February 3, 1936, when his appointment was confirmed. He thereafter served, first, as a Grade ‘D’ patrolman, and after advancement from time to time became a Grade ‘A’ patrolman. He has been paid a regular annual salary, semi-monthly, and in addition to the 40 hours per week ordinarily required, has unquestionably put in a large number of hours of overtime service. The record contains some testimony which indicates that the city officials regarded Olson as an employee, and that there was attached to each of his pay checks a stub, entitled: ‘Employee's Statement,’ on which his net pay was calculated.

Under § 2 of chapter XII of the charter of the city of Highland Park the Police and Fire Commission has general control and management of the divisions of police and fire service. The powers of the members of the police force appointed by them are recited in § 12 of chapter XII and include the exercise of powers under the penal laws of the State, the ordinances of the city, and the provisions of its charter, including all the powers given by law to constables for the preservation of quiet and good order and such other powers as are conferred generally upon peace officers of the State. Section 8 of chapter XVI of the charter provides that the members of the police force and all employees thereof shall receive such compensation as the council of the city ‘may subscribe.’ The charter further provides in section 6 of this same chapter that the Police and Fire Commission shall, subject to approval by the council, adopt rules and regulations for the organization and conduct of the department. Such rules and regulations were adopted by the commission on November 2, 1931, and approved by the council on the same date.

Under the foregoing provisions of the charter the council from year to year, by ordinance, fixed the annual salaries of all patrolmen and other officers of the department, and Olson was paid accordingly.

Whether Olson was an employee or an officer of the city depends primarily upon the provisions of the charter. Millaley v. City of Grand Rapids, 231 Mich. 10, 203 N.W. 651. See, also, Blynn v. City of Pontiac, 185 Mich. 35, 151 N.W. 681.

The charter in question, by its language, differentiates between employees of the department and officers thereof. For example, section 3, chapter XII reads in part: ‘The Council may also authorize the employment of civilian employees who, however, shall not be considered as members of the police force or fire force as those terms are used in this charter.’

In the section with respect to compensation a distinction is made between members of the department and employees thereof. In the regulations the same distinction is made. Members of the police force are entitled to leave days and furloughs, while employees are entitled to vacations. The distinction between employees and officers under comparable provisions to those found in the Highland Park charter is pointed out in the Blynn case, supra. We have had occasion recently to refer to other distinctions in Fraternal Order of Police v. Lansing Board of Police & Fire Commissioners, 306 Mich. 68, 10 N.W.2d 310.

Olson was an officer and not an employee, and in the absence of any provision therefor in the charter, rules and regulations of the department, or ordinances of the city, he is not entitled to overtime pay. We find no such provision and the judgment as to Olson should be affirmed.

Frances Coulter, a matron of the police department, was a member of the Women's Division thereof. That division consists of police women and matrons. Matrons are required to...