Schubert v. Forrester, 37.
| Decision Date | 04 June 1945 |
| Docket Number | No. 37.,37. |
| Citation | 311 Mich. 553,19 N.W.2d 96 |
| Parties | SCHUBERT v. FORRESTER et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Sherman D. Callender, judge.
Certiorari by Henry D. Schubert against James A. Forrester and others to review the action of defendants, as members of the Civil Service Board for the City of Dearborn, in reinstating Willis M. Lutz as an employee of the Department of Health and Recreation after his dismissal by plaintiff, superintendent of recreation. From an order dismissing his petition for certiorari, plaintiff, having obtained leave, appeals.
Affirmed.
Before the Entire Bench.
Dale H. Fillmore, of Dearborn, for appellant.
John J. Fish, of Dearborn, for appellees.
Plaintiff appeals from a circuit court order dismissing his petition for certiorari to review the action of the civil service board of the city of Dearborn in reinstating one Willis M. Lutz as an employee of the department of health and recreation.
The material facts are not in dispute. For several years prior to January 5, 1943, plaintiff Schubert was employed by the city of Dearborn as superintendent of its department of recreation. Under the city charter adopted in 1929, the department of recreation was controlled by a recreation commission, and section 88 of the charter provided as follows: ‘Subject to approval by the council, the commission shall have power to arrange or contract with the board or boards of education in the city for the joint operation of any playgrounds or other recreational facilities or for the use and operation of any grounds, facilities or equipment belonging to such board or boards which it or they may desire to be used and operated by the commission, upon such conditions and terms of payment or contribution to cost, as may be mutually agreed by the commission and board.'
The Fordson school district is located in the city of Dearborn. About 1937 a nonprofit corporation known as the Dearborn Boys' Club was organized, its object, as stated in its constitution, being ‘to promote the physical, mental and moral well-being of the boys of Dearborn by providing such means of education and amusement as in the judgment of the directors may seem most likely to achieve the desired ends.’ About 1937 the city, acting under the above charter provision, entered into a working arrangement with the school district and the boys' club, whereby the buildings and equipment of the district were to be used by the club and the city in providing educational and recreational facilities for boys. This arrangement has been continued from year to year, but apprently no formal written agreement has ever been executed between the city, the school district, and the club. Under this co-operative arrangement the city paid the salaries of certain of its employees who worked with the boys' club, including the salary of said Willis Lutz. It appears that Lutz was a civil service employee, classified as director of boys' activities, and that he acted as director of the work of the boys' club. The club combined its personnel and the school facilities and the personnel furnished and paid by the city in a program of education, recreation, and character training for boys. The city participated in this program only by the payment of the salaries of Lutz and other employees, as above mentioned.
In 1942 the city of Dearborn adopted a new charter, which became effective January 5, 1943. Under the new charter the former department of recreation became a division of the department of health and recreation. Section 8.24 of the 1942 charter provides in part:
* * *
‘Subject to approval by the council and the health officer, the division shall have power to arrange or contract with the board or boards of education in the city for the joint operation of any playgrounds or other recreational facilities or for the use and operation of any grounds, facilities, or equipment belonging to such board or boards which it or they may desire to be used and operated by the division, upon such conditions and terms of payment or contribution to cost, as may be mutually agreed by the division and board or boards.'
Plaintiff Schubert was continued as superintendent of recreation under the new charter. It appears that there was continual conflict between plaintiff and the board of directors of the boys' club, each of whom sought to exercise complete control and authority over Lutz and his work. An opinion of the city attorney (who is plaintiff's attorney in the present suit) was requested, and he advised in part: ‘The department of recreation under the direction or Mr. Schubert (plaintiff) does not have entire and absolute control over the work which Mr. Lutz and his staff are carrying on among the boys due to the fact that the responsibility and control is being shared with the boards of education of the city and a third party known as the ‘Boys' Club of Dearborn.”
In the summer of 1943 Lutz, at the direction of the board of directors of the boys' club, had taken a group of boys from the club to Traverse City to assist in harvesting the cherry crop. In the spring of 1944 plaintiff instructed Lutz not to take the boys on the annual cherry-picking trip. On June 5th the board of directors of the boys' club authorized him to make the trip. The trip was also authorized by the executive committee of the board at its meeting on July 7th, at which plaintiff was present. The following record of the executive committee meeting explains the situation: ...
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Payne, In re, Docket No. 94486
...Public Welfare Comm. v. Detroit Civil Service Comm., 289 Mich. 101, 106-107, 286 N.W. 173 (1939); Schubert v. Dearborn Civil Service Bd., 311 Mich. 553, 561, 19 N.W.2d 96 (1945); O'Dell v. Flint Civil Service Comm., 328 Mich. 631, 636-637, 44 N.W.2d 157 (1950). Certiorari was the common-law......
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