In Re Fredericks , 285 Mich. 262 ( 1938 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Appellants were employees of the fire department of the city of Highland Park. Charges of incompetency and misconduct were preferred against them in conformity with the charter provisions and following hearing before the police and fire commission they were dismissed. The city had adopted the provisions of Act No. 78, Pub. Acts 1935 (Comp. Laws Supp. 1935, § 2730-1 et seq., Stat. Ann. § 5.3351 et seq.), and in pursuance thereof written charges and answers thereto were filed with the civil service commission, which, after hearing thereon, found the dismissals to be justified. Appellants thereupon took an appeal to the circuit court, which was dismissed on the ground that Act No. 78, § 14, Pub. Acts 1935 (Comp. Laws Supp. 1935, § 2730-14, Stat. Ann. § 5.3364), in attempting to provide for an appeal from orders of the civil service commission to the circuit court, imposed nonjudicial functions upon the court, and was, therefore, unconstitutional, violating Const. 1908, art. 4, § 2.

Section 14 of the act provides numerous grounds, any one of which is sufficient, upon which the removal of an employee may be founded. The person sought to be removed is entitled to a written statement of the charges made against him and, if he so desires, may demand a public hearing thereon before the civil service commission, with the further right to appeal to the circuit court from the order of the commission. Although the act contemplates that formal charges shall be preferred, a hearing had thereon, and the decision of the commission to be based upon the testimony so taken, it must be concluded that the commis-sion functions in a capacity which is essentially administrative. Although partaking of that which is judicial, its acts are not truly of such a nature, and are therefore termed quasi-judicial functions. This view may appear to be in conflict with the broad language of some of the earlier decisions of this court which held that removal for cause was an exercise of judicial power. Stockwell v. White Lake TownshipBoard, 22 Mich. 341; Dullam v. Willson, 53 Mich. 392 (51 Am.Rep. 128); People, ex rel. Clay, v. Stuart, 74 Mich. 411 (16 Am. St. Rep. 644). Moreover, we believe the rule to be more correctly expressed in Fuller v. Attorney General,98 Mich. 96 and State, ex rel. Hart, v. Duluth Common Council,53 Minn. 238 (55 N.W. 118, 39 Am. St. Rep. 505), and the act of removing for cause to be primarily administrative and, although judicial in a sense, not an act of such a nature that it requires performance by the judicial branch of the government or permits an appeal thereto.

A decision of the civil service commission upon a hearing to remove for cause, not being the result of judicial action, but being at the most a quasi-judicial act of an administrative tribunal, is not subject to review by the courts on appeal and an attempt by the legislature to create a right of appeal would fail as an unconstitutional endeavor to foist nonjudicial functions upon the courts. See City of Aurora v. Schoberlein,230 Ill. 496 (82 N.E. 960).

However, the foregoing proposition would be inapplicable in the event that the legislature did not intend a review de novo by the circuit court but contemplated a review by certiorari and thus expressed its intent by the indiscriminate use of the word appeal.

In outlining the procedure on appeal the legislature has provided that the review shall be had on the record as made before the commission, no additional testimony being permitted, which accords with the procedure on review by certiorari. InClancy v. Milwaukee Board of Fire and Police Com'rs,150 Wis. 630 (138 N.W. 109), one Thomas A. Clancy had been removed as chief of the fire department of the city of Milwaukee by the board of fire and police commissioners after trial in accordance with the statute. The statute provided for the institution of an action in the circuit court for the purpose of reviewing such decision, said action to be tried without a jury upon the evidence as returned by the board and the inquiry limited to the question, "Under the evidence was the decision of the board reasonable?" The challenge was made that the provision for review was an attempt to confer nonjudicial functions upon the court. Disposition of the objection was made in these words:

"In substance, this appeal was intended to perform the functions of a writ of certiorari in a case where the writ is directed to a tribunal of this nature, namely to review the evidence to ascertain only whether there was reasonable ground for the decision made. State, ex rel. N.C. Foster Lumber Co., v. Williams, 123 Wis. 61 (100 N.W. 1048). It is a method provided by statute by which the power of superintending control which is vested in the circuit courts by the Constitution is to be exercised. The Constitution (article 7, § 8) provides that the circuit courts shall have a supervisory control over all inferior courts and tribunals and shall have power 'to issue writs of habeas corpus, mandamus, injunction,quo warranto, certiorari, and all other writs necessary to carry into effect their orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions.' While no formal writ issues in the present case and the proceeding is termed an appeal, it accomplishes the same result as though it had been commenced by the issuance of the ancient writ, and there can be no doubt of the legislative power to reach the desired end by procedure termed an appeal as well as by an original common-law writ."

The provision giving circuit courts supervisory control over inferior tribunals in this State is to be found in Const. 1908, art. 7, § 10.

We, therefore, consider the review intended by the legislature as an appeal in the nature of certiorari. The scope of review upon such an appeal is limited to determining if the inferior tribunal, upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law. It is not a review de novo and therefore appellee's contention that a review would be unconstitutional in that administrative and executive functions would be thrust upon the court is without foundation.

Appellants are not entitled to a review as herein indicated as a matter of right. The writ of certiorari issues only in the sound discretion of the court. Appellants did not obtain leave from the circuit court for review, and affirmance of the order dismissing the appeal consequently follows.

A public question being involved, no costs will be allowed.

WIEST, C.J., and BUTZEL, BUSHNELL, SHARPE, POTTER, NORTH, and McALLISTER, JJ., concurred.