Valentine v. McDonald
| Decision Date | 04 September 1963 |
| Docket Number | No. 26,J,26 |
| Citation | 371 Mich. 138,123 N.W.2d 227 |
| Parties | James VALENTINE, Plaintiff and Appellant, v. Jack McDONALD, Redford Township Supervisor, Redford Township Board, and Redford Township Civil Service Commission, Defendants and Appellees. une Term. |
| Court | Michigan Supreme Court |
Marvin Blake, Detroit, for plaintiff-appellant, Ronald M. Rothstein, Detroit, of counsel.
Kasoff, Young, Gottesman & Kovinsky, Detroit, for defendants-appellees, Allen J. Kovinsky, detroit, of counsel.
Before the Entire Bench.
Plaintiff is an honorably discharged Marine of World War II. Prior to February 24, 1961, he was a detective on the Redford township police department. On that date he was notified by letter from the township supervisor that, effective immediately he was permanently removed as a member of the police department because of immoral conduct.
P.A. 1897, No. 205, as amended (C.L.1948, § 35.401 et seq. [Stat.Ann.1961 Rev. § 4.1221 et seq.]), is 'An Act to prefer honorably discharged members of the armed forces of the United States for public employments' in every public department of the State and of every county and municipal corporation thereof. It is commonly known as the veterans' preference act. Section 1 provides for veterans' preference in hiring for such positions. Section 2 provides that no veteran holding such employment in any public department of the state or any county, city or township, shall be removed therefrom except for certain specified misconduct, and then only after full hearing, in the case of a township, before the township board, which right the veteran waives, however, if he fails to file a written protest with the board within 30 days from the day of his removal. The statute further provides that such hearing shall be afforded the veteran within 30 days after the filing of his protest.
P.A. 1935, No. 78, as amended (C.L.1948, § 38.501 et seq. [Stat.Ann.1958 Rev. § 5.3351 et seq.]), hereinafter called the civil service act, provides for a civil service merit system for police and fire departments in municipalities, if adopted by a majority of the electors therein voting thereon. It was adopted by the electors in Redford township in 1952. Section 14 of that act permits removal of a member of the police department only for cause and, upon his demand, after a public hearing before the civil service commission.
On February 28, 1961, plaintiff filed a demand for hearing before the civil service commission, and a protest of his dismissal with the township board under the veterans' preference act.
A public hearing was had, as demanded, before the civil service commission. It sustained plaintiff's removal. He appealed, by certiorari, to the circuit court. The court affirmed the action of the civil service commission. No appeal therefrom has been taken to this Court.
Plaintiff was never afforded a hearing before the township board under the veterans' preference act. He demanded reinstatement because such hearing was not held within 30 days after his protest, as provided in that act. Upon denial thereof he sought mandamus in circuit court to compel his reinstatement accordingly. This was denied by the circuit court. From that plaintiff appeals here.
Defendants contend that, to the extent that it had application to this situation, the veterans' preference act has been repealed by the subsequently enacted civil service act. This the plaintiff denies.
It is interesting to note that the civil service act, as originally enacted, contained a section 19 providing:
'All acts and parts of acts in conflict with the provisions of this act are hereby repealed insofar as they conflict with the provisions of this act.'
Section 19 was repealed by P.A. 1945, No. 267. More significant is the fact that, after enactment of P.A. 1941, No. 370 (C.L.1948, § 38.401 et seq. [Stat.Ann.1961 Rev. § 5.1191(1) et seq.]), providing for a civil service system in certain counties, section 1 of the veterans' preference act was amended in 1959, by Act No. 179, to provide that if, in any instance, there is a conflict between the provisions of those two acts, the said county civil service act of 1941 'shall prevail.' No such provision is contained in the veterans' preference act with respect to the civil service act covering townships. From this it is evident that the legislature was cognizant of the existence of the veterans' preference act when it enacted the civil service acts and well knew how to effect an express repeal of veterans' preference provisions in favor of civil service act provisions and how to cause the former, by express terms, to be superseded by the latter when it so desired. Having done this expressly in the case of county civil service by amendment of the veterans' preference act and not having done so with respect to township civil service, and having incorporated in the 1935 civil service act section 19 repealing all acts or parts of acts in conflict therewith and, thereafter, in 1945, having repealed that section 19, it seems evident that the legislature has not intended that the veterans' preference act, in whole or in part, should be deemed repealed by the 1935 civil service act as amended and as applied to townships. This view finds further support in the fact that in section 9 of the 1935 civil service act, as amended, it is required that the civil service commission shall 'keep a roster of the members of the fire and police department, together with a record of service, military or naval experience * * *.' Certainly the repeal contended for by defendants is not express. As noted above, the legislative intent appears to have been to the contrary.
Is there repeal by implication as defendants urge?
People v. Buckley, 302 Mich. 12, 4 N.W.2d 448.
'This court has held that, only when two acts are so incompatible that both cannot stand, does a later act repeal a former.' In re Estate of Reynolds, 274 Mich. 354, 264 N.W. 399.
By reasonable construction the two statutes can be reconciled and a purpose may be found to be served by each act, so both must stand. The civil service act was designed, according to its title, to provide, in the public interest, a civil service system based upon merit and to confer certain benefits upon civil service employees, including tenure, rights of promotion and others. The veterans' preference act was enacted for the purpose of discharging, in a measure, the debt of gratitude the public owes to veterans who have served in the armed services in time of war, by granting them a preference in original employment and retention thereof in public service. These purposes need not be considered irreconcilable. It is our duty to reconcile the two statutes, if possible, and to enforce them.
As already observed, the civil service act requires the commission to keep a roster of policemen together with a record of their military or naval experience. This could serve no purpose other than for granting preference to veterans for appointment, tenure or promotion under the civil service system. At the same time, section 1 of the veterans' preference act provides that an appointee thereunder, aside from the preference due him as a veteran, shall 'possess other requisite qualifications, after credit allowed by the provisions of any civil service laws.' Claims of irreconcilability seem effectively refuted by there provisions of the two acts.
Defendants say that sections 11(b) and 14, and particularly the language of section 7, of the civil service act are in flat contradiction of the rights contended for by plaintiff under the veterans' preference act, inasmuch as it is there provided that appointment shall not be in any manner or by any means other than in the civil service act prescribed. Again it is to be observed that it is possible, without conflict between the two acts, in making appointments under the civil service act, to accord, by civil service commission rule, the preference required under the veterans' preference act. Section 14 of the civil service act provides that 'tenure * * * under the provisions of this act' can be terminated by the civil service commission. There can be no doubt that plaintiff's rights theretofore earned by his service under that act have come to an end by commission action. That does not mean to say that his right to employment, without continued benefit of rights conferred by the civil service act in connection with his previous service, may not still be subject to the determination of the township board under the veterans' preference act. The civil service commission's termination of plaintiff's rights theretofore enjoyed or earned under the civil service act would not necessarily be in conflict with a township board holding that he is entitled to remain in his previous job under the veterans' preference act. Future civil service act rights would still be subject to commission determination.
Defendants point to the...
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...does a later act repeal a former.' In re Estate of Reynolds, 274 Mich 354, 360 [264 N.W. 399 (1936) ]." Valentine v. Redford Twp. Supervisor, 371 Mich. 138, 144, 123 N.W.2d 227 (1963). See also Council No. 23 v. Recorder's Court Judges, 399 Mich. 1, 8, 248 N.W.2d 220 (1976) (opinion of Will......
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