Williams v. Civil Service Com'n of City of Detroit, 2347

• Decision Date: 23 December 1968
• Docket Number: No. 2347,No. 1,2347,1
• Citation: 15 Mich.App. 55,166 N.W.2d 309
• Parties: George L. WILLIAMS, Charles E. Saltpaw, George Gordon, Henry L. Rozier, Dennis A. Ervin, Ronald W. Lulek, James R. Fortier, Jr., and Roland Sharette, jointly and severally, Plaintiffs-Appellants, v. CIVIL SERVICE COMMISSION OF the CITY OF DETROIT and Edward S. Shell, its president, James V. Bellanca, John T. Dean and Roger F. Foster, its commissioners, and Donald J. Sublette, its secretary and chief examiner, in their official capacity, Defendants-Appellees. Cocket
• Court: Court of Appeal of Michigan — District of US

Page 309

166 N.W.2d 309

15 Mich.App. 55

George L. WILLIAMS, Charles E. Saltpaw, George Gordon, Henry L. Rozier, Dennis A. Ervin, Ronald W. Lulek, James R. Fortier, Jr., and Roland Sharette jointly and severally Plaintiffs-Appellants, v. CIVIL SERVICE COMMISSION OF the CITY OF DETROIT and Edward S. Shell, its president, James V. Bellanca, John T. Dean and Roger F. Foster, its commissioners, and Donald J. Sublette its secretary and chief examiner, in their official capacity, Defendants-Appellees.

Cocket No. 2347.

Court of Appeals of Michigan, Division No. 1.

Dec. 23, 1968.

Rehearing Denied Feb. 14, 1969.

Released for Publication April 9, 1969.

Bruce A. Miller, Zwerdling, Miller, Klimist & Maurer, Detroit, for appellants.

Robert Reese, Corp. Counsel, John R. McKinley, Asst. Corp. Counsel, Detroit, for appellees.

Before LEVIN, P.J., and ROBERT B. BURNS, and McGREGOR, JJ.

LEVIN, Presiding Judge.

Plaintiffs are employees of the city of Detroit. They challenge the validity of Rule VII promulgated by the city of Detroit civil service commission. The rule provides:

'All persons working in any branch of the City Civil Service shall reside in the city of Detroit.'

The plaintiffs proceeded first by petition addressed to the commission. The commission held a hearing at which plaintiffs' attorney argued their position, but no evidence was offered in support of the claims that the rule is irrational and, therefore, beyond the competence of the commission to promulgate and violative of the State and Federal constitutions.

The commission denied plaintiffs' petition. Plaintiffs then filed a complaint with the circuit court. The circuit judge in a comprehensive opinion ruled that the city charter confers on the commission the power to promulgate rule VII and that it is not unconstitutional.

On this appeal, plaintiffs state 2 questions:

1. Did the Detroit civil service commission exceed its power under the city charter by promulgating a general residence requirement for municipal employees?

2. Does a rule conditioning municipal employment on the requirement that the employee reside within the city's boundaries violate constitutional guarantees of due process, equal protection and civil and political liberty?

As a general proposition courts will not reach a constitutional question if they can decide the case on nonconstitutional grounds, whether or not such grounds have been properly raised by the parties (see footnote 1). Neese v. Southern Railway Company (1955), 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60; 16 Am.Jur.2d, Constitutional Law, § 113, p. 301.

In Alma Motor Co. v. Timken-Detroit Axle Co. (1946), 329 U.S. 129, 132, 67 S.Ct. 231, 91 L.Ed. 128, the United States Supreme Court reversed and sent that case back to the Circuit Court of Appeals for consideration of a nonconstitutional question which was (p. 132, 67 S.Ct. p. 232) 'neither considered nor decided by the court below, nor argued here.'

The court observed (p. 136, 137, 67 S.Ct. p. 234):

'If two questions are raised, one of non-constitutional and the other of constitutional nature, and a decision of the non-constitutional question would make unnecessary a decision of the constitutional question, the former will be decided. This same rule should guide the lower courts as well as this one.'

And later (p. 142, 67 S.Ct. p. 236):

'The principle of avoiding constitutional questions is one which was conceived out of considerations of sound judicial administration. It is a traditional policy of our courts.'

Thus, we should not consider the constitutional questions plaintiffs ask us to resolve in their favor until it is determined that the case cannot be decided on nonconstitutional grounds.

Returning to question 1, did the commission exceed its power by promulgating a general residence requirement? For reasons hereafter stated we hold that the commission did exceed its powers when it established a residence requirement as a condition of Continuing employment. We intimate no opinion as to the commission's power to adopt a General residence requirement as a condition of Initial employment. ¹

The general statement of the commission's powers appears in Title 4, ch. 2, § 7 of the charter. ² Section 11 provides for examinations:

'All applicants for offices or positions in said classified service, except those herein otherwise specified, shall pass an examination which shall be made public, competitive and free to all citizens of the United States, With specific limitations as to residence, age, health, habits and moral character, which shall be uniform as to each kind of work or occupation.' (Emphasis supplied.)

That the commission in fact enforces Rule VII against nonresidents appears from its annual reports:

'Residence is continuously policed and all known cases of individual evasions * * * are regularly processed and resolved by This commission.' 1961 Annual Report of the Detroit Civil Service Commission, Pt. 1, p. 12. (Emphasis supplied.)

In the 11-year period, 1956 through 1966, a total of 36 employees were discharged on grounds of nonresidence. Twenty-eight were discharged in the last 5 years of that period. 1956--1966 Annual Reports of the Detroit Civil Service Commission. The interim annual report for 1967 details by city department the residence investigations 'by a civil service investigator.' ³

The commission's initiative in this area is beyond its authority, which is to (i) classify positions, (ii) hold examinations 'with specific limitations as to residence'--the word 'with' modifies the word 'examination' and, thus, the phrase 'with specific limitations as to residence' relates only to Examinations, not tenure in employment, (iii) prepare an eligible list, (iv) certify names to the appointing authority, (v) disapprove discharge of provisional appointees, consent to transfer of provisional appointees, (vi) set aside promotions it finds were made for reasons other than the 'interest of the service' and discharges, Etc., 'made for political or for reasons other than the good of the service.' ⁴

The appointing authority, not the commission, decides when, if at all, to discharge an employee. Rule VII, which seeks to impose a mandate on the appointing authority and to compel discharge for nonresidence, exceeds the power of the commission to promulgate or enforce.

In Delaney v. Detroit Board of Fire Commissioners (1928), 244 Mich. 64, 66, 221 N.W. 283, a fire fighter was discharged by the fire department for 'intoxication and for the good of the service.' The civil service commission ordered him reinstated. The Supreme Court reversed. It held that under § 18 the commission 'is limited to the determination of two questions:

(1) Was the employee discharged for political or religious reasons, or

(2) Was he discharged for other reasons than the good of the service.'

The Court held that the commission could not retry the issue of intoxication, that (p. 67, 221 N.W. p. 284) the commission's 'business is to see that the departmental heads act in good faith, not to correct their judgment':

'The board of fire commissioners has the power of appointment and the Power of removal for any reason not prohibited by the charter. It alone is given jurisdiction to try the question of guilt or innocence on specific charges made against its employees. It is required to give the party charged a trial and to prescribe the punishment if he is found guilty. The charter does not say that he shall have two trials on the merits, one before the board of fire commissioners and the other before the civil service commission. The authority of the commission under the charter is to inquire into the motives or reasons for the discharge, and not into the sufficiency of the evidence on which the trial board acted. The civil service commission is not concerned with the guilt or innocence of the employee except as that fact aids it in determining if the removal was for some other unlawful purpose or reason. In other words, what it is authorized to inquire into is the good faith of departmental heads in removing their employees.' Delaney v. Detroit Board of Fire Commissioners, Supra, pp. 66, 67, 221 N.W. p. 284. (Emphasis supplied.)

In Slavin v. City of Detroit (1933), 262 Mich. 173, 247 N.W. 145, policemen and firemen who had been discharged as an economy measure failed in their effort to compel the city to restore them:

'While it is true that the council may indirectly control the number of officers and employees by limiting the appropriation, the right of appointment and Removal, increase and decrease of the forces still remains in the hands of the police commissioner and the board of fire commissioners respectively.' Slavin v. City of Detroit, Supra, pp. 176, 177, 247 N.W., p. 146. (Emphasis supplied.)

Later in the opinion the Court stated:

'In coming to our conclusion, we have not been unmindful of the fact that appointments to the fire department force are regulated by civil service provisions in the charter which, however, do not affect dismissals made for reasons of economy. (citations omitted) As to the location of the power of appointment and removal of firemen, see Delaney v. Detroit Board of Fire Commissioners, 244 Mich. 64, 221 N.W. 283. Slavin v. City of Detroit, Supra, p. 179, 247 N.W., p. 147.

See, also, Philbrick v. Dust (1914), 178 Mich. 605, 607, 146 N.W. 175. Cf. Kane v. City of Flint (1955), 342 Mich. 74, 79, 69 N.W.2d 156.

While § 7 (see footnote 2) confers upon the commission powers and duties 'necessary to carry out the provisions hereof,' and it may adopt rules 'adapted to carry out the purposes of this chapter and not inconsistent with its provisions for the Examination and selection of persons to fill the offices and positions in the classified service, which are required to be filled by appointment and For the selection of persons to be employed in the service of the city' (Emphasis supplied.) the commission does not under the quoted words...