*1 op Military 1971] Affairs damages of action in in respect ques- cause tion in to be the fund. This paid may it be desirable and even be what public policy may meant but we hold that legislature say, it is not what legislature say. the legis- While lature amended 12 in § 1968 to require physical it contact, left that unchanged part of which § allows the secretary to be sued either alone or aas codefendant. we Thus, cannot accept theory advanced the defendant.
Affirmed, costs, a public question in- being volved.
All concurred.
BROWN v. DEPARTMENT OF MILITARY AFFAIRS Unambiguous Duty. 1. Statutes — Statutes —Court’s language Where the of a unambiguous statute clear obey courts only can and enforce. op 2. Statutes —Construction—Use “Shall”. The use of the word “shall” in a mandatory statute is im- perative, and when used in a public command to official it excludesthe idea of discretion. Pay Changes—Statutes. 3. Militia —National Guard — Rate — Department Military any authority Affairs change lacked its for state National Guard officers where the applicable provides officers National Guard “shall” be army the same manner as Federal officers (MCLA 32.45). References Points Headnotes [1, Jur, Am Suretyship 50 53 Am Jur 2] 217. 2d, Military, Civil 44. [3-8] Defense § Barred —Basis. Contracts —-Actions particular The nature and construction of the contract before the court determine an action is barred. whether *2 5. Limitation of Actions —Militia—National Guard —Back Pat. pay for by back from Guard officer complaint National A by one-year period limitation barred the to 1967 was not in 1968 where the trial complaint was filed though the even plaintiff had been continuous state that the’ found job superior his unless duty, authorities not free to leave superior had resignation, plaintiff’s the officer accepted his that request the complaint not be filed and that requested that been and had denied the was tantamount anything if find out requested and thus unable to audits the owing him; court determination that the trial legislature acknowl- in 1967 the of accrued when cause action the discrepancy pay scales and corrected edged the 32.45). (MCLA was not erroneous trouble statute § Pay Changes Mipitia Bate— Bate — 6. Guard —-Pat —National Statutes. Military Affairs to revise Department of system so as allow pay for National Guard officers paid army officers where less than Federal some officers to be offi- applicable mandates the National Guard appro- paid be Federal officers where cers same as designate not pay and did piration did not alter the scales acts 32.45). paid (MCLA mueh who would be or how Estoppel Pay Guard. 7. —Back —Militia—National claiming estopped
A state National Guard officer was during accepting paychecks period earned back his object dispute, where to the amount he was the officer reprisals job because of fear or loss where mitigate damages (MCLA 32.45). was not in a by Churchill, Dissent J. En- Limitation of Actions —Militia—National Guard —Bisk of forcing Bights. bring
A state National Guard should not allowed officer statutory period a cause action earned back for after legally bringing though passed, the action has even he was for grounds though, entitled to the on all other and even if timely pressed might he had claims, lost have officer 1971] Brown Military op Opinion the Court superior might possibly with his have lost officers
favor position, rights frequently because the en- enforcement of tails rishs. Appeal from Court of Claims, Beer, William John Division November at J. Submitted (Docket 7810.) Lansing. February No. Decided by Supreme Court, 1971. Reversed Mich 194. Complaint by Lieutenant John P. Colonel against Michigan Department the State and the Military pay. Judgment for Affairs back for plaintiff. appeal. Affirmed. MacKay, plaintiff.
Newman & Kelley, Attorney Frank J. Robert A. General, *3 Derengoski, General, Solicitor and Wallace K. Sagendorph Hackney, Charles D. Assistant Attorneys for General, defendants. Before: P. J., Fitzgerald Bronson, JJ.
Churchill,* present through J. The action arises Fitzgerald, plaintiff’s complaint in the state Court Claims pay for from back 1950 to 1967. military
PA 1909, No 84, 45, of the establishment by as act, amended in PA 1937 MCLA 32.45 (Stat provides: 4.637), §Ann
“All officers shall day spent by receive for each them in duty actual service or on under the orders governor, who is authorized to determine place when duty, said pay officers on and al- including traveling lowances, allowances and all nec- essary expense for horses for mounted officers and
* judge, Circuit sitting on Appeals the Court assignment. 463 Opinion the Court length as fixed service pay account increased rank the same regulations officers of or law States.” of the United in the service as an joined Guard National the state Plaintiff paid in accordance He active officer in pay plan In 1950 a new until 1950. with the statute military approved by board. devised and plan, had his reduced Under this years longevity captain with a number that of army days days than the 30 normal some less Usually upon per month. rate was based per days In board 24 26 month. pay system whereby each further officer revised request duty days actual for 30 would per be called to longevity rank, month at full but at than less actually had. resulted in a This decrease be- cause gevity. both in rank advanced and lon- plaintiff prepared complaint In 1964, for court presentation requesting pay adjustment, but was re quested by superior delay pend officersto action ing Schnipke the decision in McDonald v. repeatedly Mich 14. pay Plaintiff has asked for a accounting prepared published. roll which was not or plain- state Court of Claims ruled in favor of complaint tiff’s payroll and ordered a state appeal, audit. raising four issues. *4 Did the March 4, to December of 31, 1959, violate PA No as amended? 84, § 1909, 45,
PA clearly provides 1909, 84,No that officers in the state establishment shall be in the same army manner as Federal officers. This repealed, statute was never changed, or altered 1971] Military oe v.
through mandatory amendment until 1967.1 It was language a effect at all times. Where unambiguous, only statute is clear and it obey courts to and enforce it. Nordman Calhoun (1952), 332 Lakeway Mich 460; Chemicals, Shaw v. Inc., 3 Mich 262. Use of the word mandatory imperative, “shall” is and when used public in a command ato it official, excludes the idea of discretion. correctly The Court of Claims ruled: Department “The Military Affairs, view of this legislature, command of the authority lacked all to try adjust init a different manner”. Michigan Department Military The Affairs had tamper way change with or through advocated ex- pressed legislature. intent Both the scale change again in 1950 and in 1959violated the statu- tory mandate.
II plaintiff’s Was action barred failure file three-year notice tations? claim and limi- juris- Defendants contend that had no the court plaintiff’s claim hack to diction to entertain proper not file action within the because support time. To defendants conclude plaintiff’s cause with of action accrued each paycheck and failure file written notice of claim required years year within one and within three running claim defeats due to of the statute of limitations. court held: hearing testimony “After all of am satisfied part that this contention on the is with- help any way. out to the state in I conclude factu- [113]). PA No 150 (MCLA 32.513: Stat Ann 1969 Rev §4.678 *5 op Opinion the Court ally make his claim.” ordered not was, effect, that Col. Brown to depends upon barred an action is or not Whether particular con- the construction nature and the tract involved. any acknowledge refused to amplified by failure to their breach this payroll provide plaintiff audit. The court awith filing prevented plaintiff from found that was relating peculiar to mili- circumstances claim under requests personnel tary and duress because of superior court deter- reason, For the officers. this July action accrued on mined the cause of discrepancy legislature acknowledged the when the military corrected establishment scales through PA trouble statute. No Con- sequently, the barred. court the action held, was support determination, above
To findings following Plaintiff fact: made the duty, free to he was not been on continuous state leave and superior job officers, of his without consent bring effectually not to suit. ordered was plaintiff to consented that once held The court duty time. Evi- duty, all the placed he was on on be dence disclosed plaintiff a member of as duty in case called to Guard could National military a officer was riot. Furthermore, authority superior quit to unless without accepted public resignation em- a in contrast to power right ployee do who would have pressures military The court determined that so. request unique a made case and that this superior officer and as is tantamount to prevented from officer, subordinate making mili- his claim if he wanted remain in the tary establishment.
The trial court, in addition to issue duress, found:
1971] Brown Dept, op Military why “There is another reason am unable ac- cept jurisdictional part contention appears undisputed state and that is it in this record that Col. Brown was unable to even find out himself factually anything owing whether or not him request because his for audit was refused or, *6 effect, denied.” judge ample The trial and credible evidence upon findings. which to base reviewing the decision of trial court sit- “When jury, ting un- without a this Court does not reverse findings the trial of fact were less court’s People erroneous, 1963, 517.1, v. Hummel GCR (1969), App Inc., 19 Mich 266.” Parkdale Homes, Township App Clinton 23 Mich
Ill justified by Was the modification of appropriations? appropriations and insufficient system pay revision was contend the appropriations justified by and because of insuffi- necessary stay within action was funds, cient the appropriation. the state
The court trial ruled: accept argument part “I am unable to the the though ably presented, of even so that an state, appropriations permits prohibits ap- statute or plication to clearly-worded of the statute referred to pay military Michigan officers.” required plain unambig- are Courts to follow the existing controlling uous an mandates of and statute. legislature change pay plan If the desired to Department Military they the adopted could have Affairs, authorizing plan.
a statute a new The appropriation change did acts not alter or military scale of any way. state They in officers did much. The designate or how would who by superior changes made rate were in the Department of Mili- officers sanctioned governing tary statute. in violation Affairs setting specific legislation In the pay, rates of absence of holding correct PA 1909, trial applied. No 84, 45, dealing (1958), Mich with
Lewis v. State Wayne County pensions, De- v. Social Welfare relating partment (1955), 343 Mich to state hos- distinguish- pital patients, cited are defendants, controlling. able and not present appropriating case statutes
The payment for or set standard pay-regulating not refer to calling The officers. wages with Federal officers of like accordance longevity grade action did this. Plaintiff’s existing upon pay is based recover back-earned legislature simply ap- controlling and propriated statute. straight- lump-sum either or an amount, *7 legislating department without line method for concerning use. its Under these circumstances plaintiff properly trial court ruled that was entitled to reimbursement.
IV estopped by plaintiff to variance his consent Was claim¶ pressing system in following challenge Finally, trial defendants finding: put argument of forth the State was behalf “Now accepted accepted having less, if he less, has that accept estopped. con- I am unable that that he is and the have this state law State tention, either. We Michigan ought be in the never to failing if mere follow its state laws even own right correctly-adjusted to this and the inadvertence, Military 1971] oe v. may
compensation doctrine or under never waived or lost estoppel that I know of.” places plaintiff Defendants aver that in a unique category persons who can never waive or lose their claim under a state statute. making re- the above court, observation, legis- premise that when basic
affirmed its mandatory passed establishing pay a lature repeal schedules it remains the law in the absence of or amendment. mandatory language
In view of the of the statute setting pay objected finding and the that schedules
in fact to decreases and view of the job reprisals, fear necessarily loss or of other we position mitigate conclude that he never in a was damages. (1933), Jones Doonan 265 Mich inapplicable. policeman Jones, In a was dis charged years bringing waited for three before an action for pay. reinstatement and back The court held estopped, was but here con tinuously employed in the establishment complaint and his seeks earned back in contrast pay. to unearned
The court as a found, fact, credibil- ity preferred. as a witness to be In law cases jury, tried judge without the trial court is the credibility Roney of witnesses. v. Mazzara (1947), Mich 103; Elliot v. Buchanan reading applicable
In view of a clear stat- findings sup- utes and are court which ported by credible we affirm the Court of evidence, judgment. Claims public question being
No involved. costs, *8 Bronson, P. J., concurred.
Dissenting Opinion by Churchill, J. (dissenting). military pay The J., Churchill, agree finding statute was I violated. also that the plaintiff of the Court of Claims that was, in effect, ordered not to make his claim not agree plaintiff erroneous. Furthermore I that the estopped pressing is his claim. agree
I that the not, however, do effect of this or suspend der to toll or should be limitations.1 appear plaintiff I t does not that the would by pressing have suffered sanctions his claim except favored with loss status one or more superior possible position officersand the his loss of pretext special under one or another.2 Absent some job security statutory contractual or are these sanc may ordinarily anticipate that one tions when one employer. rights sues his The enforcement of fre quently plaintiff entail risks. The elected not take the risks and now wants best of two worlds. has cited that a threat- relationship ened severance of a beneficial with an adversary party tolls statute of I limitations and do not believe we should make one. why
Furthermore it unclear the state’s failure payroll prevented to conduct a from and did audit filing claim. The Court of Claims could audit after claim was filed. For to remand claim these reasons vote determination claim with the statute applied. of limitations (Stat CL 27A.6452). 600.6452 Ann 1962 Rev might have been He court-martialed but the correctness of valid would have been a defense.