Sabbe v. Wayne Cnty.

• Decision Date: 04 October 1948
• Docket Number: No. 85.,85.
• Citation: 33 N.W.2d 921,322 Mich. 501
• Parties: SABBE v. WAYNE COUNTY et al.
• Court: Michigan Supreme Court

322 Mich. 501

33 N.W.2d 921

SABBE

v.WAYNE COUNTY et al.

No. 85.

Supreme Court of Michigan.

Oct. 4, 1948.

Appeal from Circuit Court, Wayne County, in Chancery; Chester P. O'Hara, Judge.

Suit by Philemon Donald Sabbe against County of Wayne, a municipal corporation, and others for a declaratory decree that county civil service law does not apply to position of deputy circuit court clerk and for an injunction restraining county civil service commission from classifying such position. From an adverse decree, plaintiff appeals.

Decree affirmed.

Before the Entire Bench.

Douglas Leo Paterson, of Detroit, for plaintiff and appellant.

James N. McNally, Pros. Atty., and J. Lynn Fewlass and Julius C. Pliskow, Asst. Pros. Attys., all of Detroit, for defendants and appellees.

Schmalzriedt, Frye, Granse & Frye, by Waldo C. Granse, all of Detroit, for intervening defendants.

DETHMERS, Justice.

Plaintiff is a deputy circuit court clerk, assigned by the county clerk to the court of one of the Wayne county circuit judges, and performs the usual functions and duties required of a county clerk in relation to the circuit court. Act No. 18, Pub.Acts 1921, 1 Comp.Laws 1929, § 1322, Stat.Ann. § 5.851, provides for the appointment of such deputies by the county clerk. Civil service for county employees under the provisions of Act No. 370, Pub.Acts 1941, Comp.Laws Supp.1945, § 1464-11 et seq., Stat.Ann.1947 Cum.Supp. § 5.1191(1) et seq., became effective in Wayne county, upon referendum, in 1942, thus superseding the provisions of said Act No. 18, Pub.Acts 1921, as relates to the appointment of such deputies. See Attorney General ex rel. Whitcomb v. Lau, 256 Mich. 13, 239 N.W. 273. The civil service act does not include the position in question in the unclassified service and provides that all positions not so included are included in the classified service. The rules of the Wayne county civil service commission are to the same effect.

Plaintiff sought a declaratory decree that the county civil service law does not apply to his position and an injunction restraining the county civil service commission from classifying his position or enforcing its rules against him as a deputy circuit court clerk. From decree for defendants plaintiff appeals.

It is plaintiff's contention that his position is judicial in nature, that the civil service act cannot apply to the judiciary because of the constitutional separation of powers of the government, and that the act, if by its terms applicable to his position, constitutes an unconstitutional interference with judicial powers.

Plaintiff's position is included within the classified positions under the provisions of the statute and the rules of the commission and is made subject thereto. May the statute and rules so provide?

We have held that the duties and functions of county clerks are purely ministerial and that judicial functions cannot be performed by court clerks, nor may the power to do so be conferred upon them. People v. Colleton, 59 Mich. 573, 26 N.W. 771; Wilson v. Genesee Circuit Judge, 87 Mich. 493, 49 N.W. 869,24 Am.St.Rep. 173;Thoms v. Recorder's Court Judge, 237 Mich. 413, 212 N.W. 69.

In Duncan v. County of Wayne, 316 Mich. 513, 25 N.W.2d 605, we held that the duties of a clerk in the office of a circuit court commissioner are ministerial, not judicial, and that the placing of the position of such clerk under the county civil service act did not constitute an encroachment upon or interference with the judicial branch of government by either of the other two branches. The reasoning and decision in that case are controlling here.

Plaintiff...