Kunzig v. Liquor Control Commission

Michigan Reports. judgment The non obstante veredicto in favor of defendant be affirmed, should with costs to defend- ant. JJ., Dethmers, J.

Reid and with Btjtzel, concurred KUNZIG v. CONTROL COMMISSION. LIQUOR Intoxicating Liquors Liquor 1. Control Commission. — complete commission has control of beverage subject statutory alcoholic traffic limitations (Const 1908, 11, adopted 1932; art in PA 1933 § [Ex Sess], 8). No 2. Constitutional Law —Construction of Amendments. Amendments to the Constitution must and con- be considered together, in adopt- strued ease of conflict the amendment time, point ed later controls. Employee Appeal 3. States —Civil Service — to Civil Service Com- mission. may A State appeal in the classified civil service hearing service for a event of his removal or demotion in the State civil service and ob- provisions servance of the civil service amendment compelled, subject judi- Constitution (Const cial 22, adopted 1940). review art § Employees Liquor Control Commission 4. —Classified Same — Service Commission. Civil Service —Civil exempted Employees of the control commission are not authority from of the civil service commission and where under control commission has not been ^[7] [2] [3, [4-6] ’4-6] 4] 14 Am Jur, Costs, ALR 11 Am Effect of civil service laws to Am10 10 Am 207; Jur, Jur, Jur, References 37 ALR Constitutional Civil Civil 815; Service, Service, 91. 172 ALR 1369. Law, Points § § 12. 11. § prevent 54. Headnotes abolition of office. 4 Commission. selected posi- commission as one of exempt the two permitted tions to each elected officer, de- administrative partment, or commission, board is in the classified State civil service and the State civil com- authority mission exercise over an employee removal of 1908, (Const 16, from it art 11, adopted 1932; in 6, 22, art § § adopted 1940). in Liquor 5. Control Commission —Classified Civil Service Same — —Civil Service Commission. liquor control commission does right not have the position employees abolish the of one in the classi- civil fied service without reference to the constitutional (Const civil 1908, 16, service commission art 11, adopted 1932; 6, 22, in art adopted 1940). in § § Manager Liquor 6. Same —Business for Control Commission— Civil Service Commission. Finding of civil service commission that of business manager for control commission was abolished latter previous without of the civil authority service commission and supported by tes- held, timony supported by (Const 1908, 16, 11, record art § adopted 1932; 22, adopted art 6, 1940). § Liquor 7. Costs —Public Commission —Civil Question — Service Commission. No costs are awarded on review service commission's reinstating order plaintiff manager as business for the commission, public question toas authority of the being two commissions in matter (Const involved 1908, 11, 1932; adopted art art § 22, adopted 1940). and Sharpe, JJ., dissenting. Dethmers Appeal from Civil Service Commission. Submit- January (Docket ted 4, 1950. No. 41, Calendar No. April 44,642.) Decided 1950. Kunzig appealed A.

Louis to tbe Civil Service layoff from bis Commission as executive director of Michigan Liquor Control Commission. Order en- Reports. position. reinstating Con- Mm in

tered appeals certiorari. in nature of trol Commission Affirmed. intervenes. Commission Civil Service Graydon Stephen Attorney G. Roth, General, J. Shep- Attorney Withey, Deputy Edmund E. General, and Daniel J. O’Hara herd, General, Solicitor E. Attorney for de- General, Bradt, Assistant Peter fendant. counsel), (Foss Eldred, of Robert H. Dunn O. intervenor. define we are asked to

Boyles, C. J. In this case respective powers control commis ap and the civil service commission as sion State plaintiff, plied the 2 constitutional under * by which said commissions amendments virtue of were created. at the commission, civil service the State 1943,

In liquor request commission, established control the business liquor service in the classified manager designated commission, for that called executive and otherwise 7, executive control provided service commission The civil director. competitive examina- and after tests for candidates liquor with control commission tions furnished plain- register from which to make selection. a Kunzig 1, and on March A. was selected tiff Louis civil serv- in the classified 1944,became liquor manager for the as business ice of State perform- He remained in commission. control August, until as such sometime ance of Ms duties place. took hereinafter related when the events 1949, * 11, 16, commission, (1908), Mich Const art Liquor § adopted in 1932. (1908), 22, adopted art commission, Mich Civil Const in 1940. Kunzig Commission. August On 4, 1949, control commission adopted part a resolution, of which is as follows: “Having carefully reorgan- considered above eye effecting economy cutting ization with an and tape, petitions Michigan red the commission now civil service commission to abolish the operations executive director and director of store Michigan liquor of the control commission.” purported In addition, the resolution to divide responsibilities certain duties and between directors licensing, purchasing and merchandise, enforce- personnel ment, finance, and services, office over which the commissioners have themselves should supervision. direct theOn date that same resolution was sent to the civil service commission with a letter' requesting prompt consideration. August

On 8th the civil service commission re- layoff Kunzig ceived notice of the and on the same date Mr. filed with the civil service appeal layoff request commission an from such early for consideration thereof. The matter was set hearing pursuant for the civil service commission petition control commission and appeal Kunzig, September of Mr. at 10 a.m. prior

On that about 30 date, a.m., minutes adopted control commission another res- rescinding August olution 4th, resolution resolving: further “That executive director and of operations director store be the same and are September

hereby effective 1949.” abolished theAt same time, letter was addressed to the stating: commission, service hereby liquor “You are that notified control by commission this date has abolished the resolution, Reports. Michigan positions store director of and of director executive consequence thereof operations, that in and Kunzig his duties laid off from been A. has Louis September 10, effective all commission, with this 1949.” from the letter another time, at the same

Also, notifying Mr. was addressed to commission layoff position his and him the of his abolishment liquor commission, control from his with duties September 10th. effective attorney general appeared at then An assistant pre- hearing commission, the civil before service and to, referred stated the resolution above sented position commission fol- control lows : attorney general): (assistant It is “Mr. Leacock that control commission

the there is nothing enumerated article that Constitution authorizes step the line of commission to over the civil service demarcation between personnel problems admin- problems invade the administrative istrative * * * ap- this commission field. "Weare before on job peal by Kunzig on abolishment of General you layoff. here for. That’s what we are before * * * question whether the is finding in their discretion after own now, commission job perhaps superfluous, perhaps that the unnec- is essary, perhaps I do not wish to state bottleneck, the exact at but some reason in time, reason necessary desirable, their own discretion whether they may that abolish and I think commission, the civil entirely point only legal and can deter- that’s mined the amendment. It can be de- reference to to the rules of this reference termined degree only are rules substantiated upon Everything in the amendment. rests amendment. Kunzig Control Commission. (civil commissioner): “Mr. Moll service Mr. Lea- your position liquor cock, then now the is, control right has the

commission civil service to abolish this classified position for reasons sufficient to itself approval without consultation or without your present the civil service commission? That’s question, ? is it not present position “Mr. Leacock: our That’s for purpose hearing.” of this evidently

The concluding civil service commission, abolishing position that consideration Kunzig of Mr. as a State in the classi- jurisdiction, proceed- fied within was hearing, performed ed with the considered the duties as,business Kunzig manager, efficiency Mr. his in' doing, legality so September and the dismissal; his and on part

7th entered an order, the material which is follows: legal

“The civil service commission denies the right liquor control commission to abolish the. position question any for administrative reason (and particularly any reason disclosed in the. previous testimony), of the. * * * civil service commission. The liquor control executive as established com- remains a mission, in the State civil service Kunzig, hereby A. incumbent, Louis rein- stated therein.” copy

A of the order was sent to the control given with a commission demand that it be effect. control commission notified Mr. recognize that would order and that he would not reinstated. On 17th October application filed commission in this Court an appeal for leave to in the nature of certiorari from reinstating- of the civil service order Kunzig, granted. Mr. such leave was The civil granted service commission was leave to intervene, Reports. behalf of both com- here on have been filed and briefs missions. precise question is nonessentials, all

Shorn may liquor abolish commission the control whether civil service without position in classified the State a upon any power the civil conferred serv to reference by The amendment. civil service the ice commission authority liquor re to control commission specific department, assign organize functions to its liquor policies employees, for the busi formulate its ness, beverage complete control of the alcoholic and exercise including the retail State, traffic in this statutory subject limitations, to is thereof, sales upon here called to decide are not involved. We may reorgan liquor control commission whether ize open department, stores, or close State transportation purchase, regulate the or otherwise * intoxicating liquor. The Constitution or sale powers, gives commission control statutory subject to limitations.† upon powers the civil service com- conferred only by become the Constitution involved mission liquor control commission im- of the the acts upon when upon pinge conferred the civil serv- by (1908), Constitution ice (liquor § 2 amendments control and 22. The 6, art service) must be considered construed to- civil conflict gether, in case of service amend- point adopted controls. time, later ment, appear provisions Constitution “When duty rec a it is the Court’s measure, conflict oncile possible eye with an to accom far as them mission, who, plete control including § † ^[*] PA “The Stat ratified Ann Í949 Cum legislature the retail at (Ex Sess), of the alcoholic subject November may sales Supp No 8 statutory thereof.” Mich Const election, 1932. law establish Í8.971 et (CL beverage limitations, seq.]). traffic within § 436.1 et shall exercise com- (1908), seq. [Stat art State, com- Ann Eújnzig Commission. plishing pertinent the result intended sections # * * together. when construed “Rule that where there an amendment to the law qualifying restricting provision an earlier of the provision amendatory law, later or control, must applies to an of the amendment Constitution which previously adopted provision.” restricts v. Thoman City Lansing (syllabi), 315 Mich 566.

A State in the classified civil service appeal hearing to the civil service commission for a the event of his removal or demotion in the State concluding civil service. Under the section of the any provisions may amendment, observance of of its compelled, subject judicial and is review. (civil “It lie does not within the serv- ice) finality commission to decide with whether its conformity require- acts are in with constitutional ques- ments as matter or of fact of law. That is a judicial tion for ice determination.” Reed v. Civil Serv- Commission, 301 Mich 151. paragraph

The first the of civil service amendment employees liquor not include of the does control com- among mission the elective State officers, of heads departments, exempt et are cetera, who from the authority of the civil service commission, and the liquor (business position of control executive 7 man- ager) has not been selected control exempt positions one commission as which paragraph allows said to each administrative elected department, board and officer, commission. Mr. ais State in classified State civil service and the State civil service commission jurisdiction over as has his such. The civil provides, amendment so as follows: classify “The commission shall all in the according respective civil service to their State responsibilities, compensation fix duties rates Michigan Reports. disapprove approve positions, or for all classes personal services, for all determine disbursements exclusively by competitive performance on basis qualifications efficiency of all and fitness the merit, of candidates service, in the State civil for regulations covering personnel all make rules employ- regulate all conditions transactions, ment in the State civil person service. No shall promoted appointed State civil service to or qualified for such certified who has not been as so appointment promotion No the commission. or serv- demotions in State civil from or removals religious partisan, or racial, be made for ice shall considerations.” author- commission exercise

The civil service ity Other- civil service. over State removals supervisory control it would have no initial wise, question whether removal or demotion over a partisan, religious racial, con- has made been siderations.

We conclude that control August petitioned when it 4, 1949, resolution the civil service commission abolish correctly 'of executive considered control had a constitutional that the civil service commission Kunzig. of Mr. over removal measure Instead of the fied presenting the civil service commission necessity abolishing advantages this classi- reorgan- process position of a civil service erroneously department, concluded ization authority had no that the civil service commission employ- position of a State over the abolishment appeal service. On its in the classified civil ment upon liquor relies here the control commission position right a had the to abolish that it claim without reference to civil service the classified powers the civil service commis- constitutional proper not the construction of con- That is sion. provisions here under consideration. stitutional Kunzig Control Commission. finding The civil was of the service commission showing hearing based need on the made at the and necessarily finding not at- be considered as a that the tempt liquor abolish the exec- control utive 7 and to Mr. was induced dismiss subterfuge or fraud. In ex- case this pressly brought any disavowed claim that his removal was purely political

about for reasons. The order of the civil service commission was within its constitutional No affirmed. public question being are costs awarded, involved. JJ., concurred Reid, Butzel, Carr, Bushnell, with Boyles, C. J. J., in the concurred result.

North, (dissenting). primary question J. Dethmers, liquor in this case is whether the control commission abolish State classified civil jurisdiction service without the under its approaching In commission. my question, provi- it is that the view constitutional (Mich adopted sion Const art in 1932) 16, 11, liquor control commission shall exercise, subject statutory complete limitations, control liquor place traffic, serve does purposes commission, control of decision herein, position stronger any in a than different that of department, elected administrative officer, board commission, whether constituted the Constitution or question statute, that, therefore, with reference to applicable any us,

before the rule of law appointing applies of those control commission. Hereinafter the will be referred to as the defendant, the civil service commission intervenor and the term “appointing signify any authorities” will be used to Michigan Beports. departments, officers,

or all elected administrative including defendant. commissions, boards or power the in with the view that am not accord I posi- appointing authority abolish a to create or jurisdiction civil serv- in the classified tion its under (Const 1908, amendment the is, ice civil service 1940), subject adopted to the in made art approval the intervenor. precisely be taken of should answer outset,

At the stock question to the above involved in the what is says may implications Defendant be. and what its may holding a it not abolish its that that agency, except the of intervenor, with service amendment mean that the civil has would final and admin- arbiter intervenor constituted question ap- authority whether on istrative pointing reorgan- time from time to authorities departments, their increase or curtail serv- ize their public, dispense to or with certain or add ices doing, positions classified functions, if, so result, created or abolished. are, civil service Intervenor says vigorously that denies de- this regard predicated conclusion is on fendant’s theory authority that intervenor claims to authority positions, abolish which inter- establish claiming. Granted that in- not venor insists tervenor does is authority not claim establish or positions, fact remains this case is abolish solely intervenor does insist that because us before authority disapprove approve crea- it has tions that in such by appointing

or abolishments approval. they are invalid Inherent power power veto to control adminis- policies. The facts of instant case afford trative apt In defendant illustration. an desired, arrangement,

as an administrative vest the commissioners’ in a so-called certain manager. In 1949, defendant commission business Commission. powers, them to those cause decided to reassume com- be exercised the defendant members of dispense with the hence, to and, mission themselves manager. Would services of a business the the of in position intervenor to veto such abolishment manager the exer- of business amount to policies? As- cise of a control over administrative pol- sume that the a matter of desired, defendant as icy, tighten reg- to enforcement its control of purpose, ulations force, or, for that field and, to double its versa, vice relax to remove enforcement, to consequence, certain and, restrictions to cut its field force two. the the Would not inter- approve disapprove venor to or the increase of positions on the one or the decrease on the hand, give say question other, intervenor the final on a policy? legislature pro- In the hearing law vided for a board of commissioners hearings to conduct on matters referred it to (PA [CL defendant. The act 133 1945, No (Stat [1])]) Supp § 436.5a Ann 1949 Cum 18.975 required attorney general assign to 3 assistants hearings to conduct before that board. It is reasona- ble to assume that this necessitated creation of 3 positions attorney general. new as assistants As- legislature sume that hereafter abolishes hearing repealing board of commissioners, the act requiring attorney gen- 3 services of assistants attorney general eral, with the result that the finds 3 fewer himself in need of assistants. Is within province approve disapprove of intervenor to or abolishment, the creation in the first or instance, n in the 3 second, of those the classified regardless legislative service will civil or admin- requirements? policy Suppose istrative that the attorney general policy, decides, as matter of legal giving opinions restrict to a narrower ¡circle they than that to are which now available, ob- Michigan Reports. 327

486 viating 2 assist- his for the services of of the need econ- a matter of decides, that defendant ; ants or efficiency omy reason or for whatever or increased liquor stores the number of decrease own, of its rendering city services in a from to thus unnecessary. manager If intervenor store disapprove right approve the abolish- has the actually it not involved, does ment policy pro- exert control over administrative subject, we find in intervenor’s Anent cedure? this following: brief the anyone “The commission defies State nearly years point to existence instance approve the aboli- where it has refused to consequent layoff civil serv- of an unneeded

tion layoff of the commis- where the rules ice complied connection were and in this with, sion always taken has now, commission states economy position, entirely in favor of that it is long government with it commensurate as State service.” the rendition of efficient wit- quoted reveals, intervenor In the statement power to tingly that it view has its otherwise, or attempted by positions disapprove abolishments economy, appointing for reasons of authorities opinion, particularly in intervenor’s abolish- so, if, with the rendition “commensurate would not be ment be clearer claim could service.” What of efficient power the kind and amount to determine made to public any rendered field to be activity? for intervenor And administrative utterly inconsistent with would be otherwise claim power approve or herein it makes the claim positions disapprove the creation or abolishment agree 'by appointing with I unable to authorities. am power to veto that the intervenor the statement would not affect abolishments “reorganize department, assign defendant to its v. Commission. specific pol- employees, to its functions formulate “open et icies”, cetera, or to close stores or regulate purchase, transportation otherwise liquor.” intoxicating sale of The court cannot upon thing. called to do vain Conrad, Rust v. (41 720). Rep indulge Mich 449 Am law will not require Bugajski in or idle Siwka, formalities. Hopkins, 200 Mich 415; McIntosh v. 255 Mich 493; Smith Applying v. Hubert Co., Land 261 Mich 464. principles those here, law, this instance the require civil service amendment, will not be held to. intervenor’s a of defendant’s abolishment of position permits if, at the time, same defendant, approval, reorganize without to so intervenor’s department, assign other functions to policies position question formulate that the inis, effect, abolished in that it with is left no functions or perform, duties to with the result that intervenor necessity, reclassify must, of it as without accordingly, pay. and, duties On the other appointing if hand, may defendant and other reorganize, assign not so functions and duties employees policies to their or formulate with the results indicated above, without intervenor’s con- sent, then, has indeed, been intervenor enthroned as supreme questions pol- arbiter on of administrative practices procedures. icies, foregoing The force of the conclusion is not di- suggestion that the minished of in- decisions on abolishments are tervenor not final, but subject theory, to review in this Court. Under such given appointing authority, which a situation in good subterfuge, faith and fraud or deter- economy, for reasons of a (cid:127)mines, abolish equally good intervenor, faith, .and but be- efficiency it feels the of State cause service would disapprove impaired, decides be abolishment, being would find-itself of this Court Michigan Reports. 488 upon policy- called to determine the administrative question economy of whether the of on the one ends efficiency, hand, or on the should be other, served. nonjudicial This would amount to the exercise of powers by and duties this Court and be in violation Michigan Constitution 4, of art 2. 1908, Transport Local 170, Workers Union America v. Judge, Genesee Circuit 322 Mich 332. Administra questions judicial tive are not in their nature and are subject Benjamin not Improvement to review. v. Manistee River judicial power

Co., Mich 628. The legitimate cannot interfere with the discretion of any department government. other City De Wayne Judge, troit v. Circuit 79 Mich 384. A statute requiring hearing by before and a written order judge prerequisite discharge circuit aas public employment a war veteran from held was un conferring powers upon constitutional as executive Koeper the mission, Railway courts. v. Detroit Street Com Mich 464. In v. Detroit Goodfellow Civil Service Commission, 312 Mich held was that the function of the Detroit civil service commis reviewing discharges city sion in employees was essentially might administrative so that a court relief afford tution thereon because the Consti usurpation, art forbids of adminis (Question trative functions this Court. of fraud involved.) was not To the same effect, see Pur die Department v. Detroit Police Trial Board, 318 Mich Mapley City 430; Pontiac, 288 Mich 396. people may, by There is no doubt that the constitu tional invest a amendment, civil service with the claimed though intervenor, even consequence super to constitute intervenor a policies visor over administrative of the various- departments agencies. State Civil Service Comm General, ission v. Auditor 302 Mich 673; State of Attorney Delaware, ex rel. General, v. Emerson, 40 v. 489 Commission. 154). (8 Del 233 A2d it the intention the Was of people they adopted 22? so to do article when principle A fundamental of constitutional construc give tion people tois discover and effect the intent the of City, adopting it. Holland v. Clerk Garden of City 299 Mich 465; Jackson v. Commissioner of of Revenue, 316 Mich In 694. cases of doubtful con provisions struction of constitutional resort (Union Pump history had to the of the times Steam Secretary 261) v. State, Sales Co. 216 Mich and of regard given leading should be circumstances adoption thereby sought purposes to their and the accomplished. to be Civil Service Commission v. supra; City Auditor General, Jackson Commis of supra; Revenue, sioner Detroit Board Educa of of Superintendent tion v. Instruction, Public 319 of 436; Mich v. John Hancock Mutual Insurance Co. Life adopting Co., Ford Motor Mich 209. In people presumed amendment the are to have acted light understanding prior existing and of existing laws and of circumstances, and, in the use generally terms, to have meant what those terms implied Saginaw City a.t that time. See Council v. Saginaw System & Policemen Firemen Retirement Trustees, 321 Mich and cases therein cited and, Superintendent Detroit Board also, Education v. supra. Instruction, Public What were the evils sought objects to be cured and to be attained people amendment? did writing What intend in system the merit of civil service into Constitu existing concept sys ? tion What was of such a adopted? tem when amendment was The answers questions importance controlling these are expression contrary the absence of a intention in the amendment. In Civil Service Commission v. supra, purpose General, Auditor we said that the people adopting the amendment was to abolish system spoils with its resultant evils' of ineffi- Reports. ciency, extravagance, political assessments cor- ruption by ap- of the electoral franchise. Retention pointing create abol- ish would not be conflict with that purpose people long so as intervenor is em- powered classify positions, the determine the qualifications supply of and candidates for such positions, pay, adopting fix the rates of et cetera. In people bring the amendment the intended to about employment a betterment in administration State (Reed Commission, civil v. Civil Service 301 by 137) putting Mich an end to the turnover of personnel upon change each of administration and substituting continuity security po- therefor and long they sitions, so exist, as continued for employees qualifications performance whose and efficiency merited it. This calculated was to increase economy. object and to further The ultimate was not, employees, however, increased benefits to but, rather, by improvement means of benefits, such of the nothing State service. There is to indicate that it thought people government jobs was the of the that employees, should exist for the benefit of as distin- guished concept from that exist and are purpose serving filled for the benefiting and public, people or that employees desired that should be appointing continued in after au- thorities have determined that the need therefor has positions by ended. The appointing abolishment of approval entirely intervenor’s consistent with the mentioned intentions and think- ing people adopted. of the when the amendment was appear opinion Nowhere it it does that was the public an that evil existed to the creation, positions, much less the abolishment, which was by placing to be corrected venor. Neither control thereover in inter- appear pub- it does that there awas subjecting lic demand or at clamor the time for ad- v. Control Commission. policies, ministrative in the manner hereinbefore disapproval of inter- considered, express language venor. Unless amend- contrary, ment discloses a clear intention presumed providing sys- must be that in for a merit people tem of service the intended that which contemplated generally sys- at the time was they light knowledge tem and that acted in the prior existing City laws. In Fricke v. Rapids, years 278Mich 323, Grand Court, some prior adoption of the amendment, said: universally proposition “Authorities sustain the city employee by that a abolishing can dismiss a civil service which the holds. City v. Flint Commission, Smith cases position Mich city may therein; cited and that abolish a economy, fide bona reasons of Slavin City Detroit, 262 Mich 173. It is conceded plaintiffs gov- city if office ernment is omy, for abolished bona fide reasons of econ- the holder of that is not entitled to a hearing the civil service board under the civil before provisions city service charter; and that the many city manager person is the to decide how patrolmen given any police be at time should department.” language quoted, construing an ordinance, re- concept prevailing ap- veals the at the time that an pointing authority might, good in faith, create or abolish in the civil service. Likewise, it clearly expressed was the view of this as Court, in supra, Service General, Civil Commission Auditor that the civil service amendment should not be con- affecting existing arrange- strued as the then order, governmental powers ment, division of or the except expressly exercise thereof, amendment provides therefor unmistakable terms. Is there express be found in the to amendment an Michigan Reports. grant power approve intervenor to or dis- approve positions by the creation or abolishment of appointing any and thus, manner, to regulate policies? or control administrative empowers (1)

The amendment intervenor to clas- sify (2) all in the State civil fix service, compensation (3) approve rates of disapprove classes, all personal

disbursements for all services, (4) qualifications determine of all candidates for positions, (5) covering personnel make all rules (6) regulate employ- transactions, all conditions expressly ment. No other are conferred. Expressio unius est exclusio alterius. It must be greater power given held that no other or to inter- specified venor than those enumerated amendment. See Wolverine Student Co- operative, Goodyear Inc., v. Wm. & 314 Co., Mich 590, and cases therein cited. Had it been the intention of people grant intervenor the here con- easy tended it for, would have been to do so in ex- press general practice terms. In view of the contrary systems existing, in civil service then people would seem that had the intended such a de- parture accepted practice they from in civil service, expressed plain language have would having it in and that, they failed do so, did not so intend. only lacking express Not is the amendment au- thority for intervenor ap- to create or abolish or to prove disapprove the creation or abolishment of positions by appointing significant- authorities, but, ly, power granted the first enumerated to intervenor “classify positions” is to ice. This all in the State civil serv- clearly presupposes prior existence of positions by appointing such created authorities the let or without lary hindrance of intervenor. Corol- power appointing thereto is authorities positions approval. to abolish It is without intervenor’s power that said, however, intervenor’s to clas- Xunzig v. 493 Commission. sify positions according all in the State civil service respective pre- responsibilities to their duties and holding appointing a cludes positions ap- create or abolish without intervenor’s proval; appointing authority might that if an abol- position ish a once classified intervenor, without approval, assign the latter’s and re- duties sponsibilities persons occupying of that to positions, represent complete other would this a nul- classifying powers. lification of intervenor’s Such depends entirely upon conception conclusion one’s meaning power granted posi- classify to according responsibilities tions quires and duties. It re- meaning

no distortion of the of terms to in- terpret power granted to intervenor to mean assigned that as are created and duties by appointing thereto authorities from time to time classify positions accordingly intervenor shall if the reappor- duties are and, altered and functions reclassify tioned, intervenor shall ac- cordingly. hand, On other to construe the clas- sifying powers of intervenor so as to include therein power given position freeze into the duties responsibilities upon original which the classifi- beyond cation was based, the reach of appointing authority change such duties and assign positions, functions or them to other is to something specifically read into amendment not provided give “classify” therein and to the word meaning, conferring upon a distorted thus inter- by implication, necessary venor, carrying express pow- exercise and into effect of (For setting powers forth ers. cases tests for im- plication (6 see 2 Fisher, United States v. Cranch US) 396 ^[1805] L [2 ed 304]; M’Cullochv. Mary- land, 4 Wheat (17 US) 411 ^[1819] [4 L ed 579]; United States Marigold, How (50 US) ^[1850] Legal (79 [13 US) L ed Tender Cases, Wall 257]; Michigan Reports. 327 494 [1871] [20 532 L 457, 287]; ed Interstate Commerce Commission v. Brims on, 154 US 472 ^[1894] [14 1125; S 38 L 1047]; Quarles, Ct ed In re 158 US [1895] [15 Debs, 537 L In re 959; 1080]; S Ct 39 ed 1092].) [1895] [15 578 39 L ed US S 900; Ct entirely possible creating It is and to leave the abol ishing pointing positions exclusively ap in the hands any without, manner, to

authorities circum scribing classify the intervenor positions may as from time to time In fact, exist. by we are informed precisely that brief that intervenor’s existing situation under Federal apparently civil service laws and those under urges other States. Intervenor also that creation or of a abolishment comes within the ambit of “personnel concerning transactions” which the gives power amendment intervenor the to make rules regulations. say legisla and well As that when the by public ture created statute the service commis corporation sion, securities commission or department engaging of administration, it was personnel in thereof resulted in transactions inasmuch creation person to be filled nel. Personnel transactions do not occur until after positions have been created and have been or are in process being by personnel. According filled power ly, regulations intervenor’s to make rules and covering personnel transactions no wise includes approve create abolish or to or dis approve positions. the creation or abolishment cry hue holding that a

Intervenor raises appointing create and abolish without intervenor’s would serve bring to emasculate the inevitable spoils system. Precisely how return what and in respect such a result would follow intervenor point explain ap- out, nor does how does proval appointing abolishments au- (cid:127)1950] Control Commission. explana- would avert

'thorities an disaster. Such might proved tion have of interest in view of the challenge, fact that intervenor’s brief throws out quoted, anyone point defying hereinbefore years instance the 9 of intervenor’s existence approve where intervenor has refused to the abolish- position. ment of a brief insists that At the same time, intervenor’s any from of the 28

decisions States permit- above referred to of the Federal courts ting positions abolishment of without civil service point help in are not and of no because alone does civil service exist self-executing virtue of a constitutional amend- says, with the ment, the result, as intervenor that under systems jurisdictions of the other the commis- position sions cannot concern themselves with crea- only examining tions or abolishments but with certifying Adopting duties. intervenor’s on thesis Michigan point, must it be concluded that system alone does the merit of civil service exist by spoils? unemasculated and undefiled In the same says appointing vein, intervenor if the that, author- may ity position ap- abolish one without intervenor’s proval, positions then 10 or “5, a thousand likewise may replacements abolished and made with those who favor with stand the then administration.” prediction The to that dire answer is to be found intervenor’s brief as follows: possible have that

“It been the reason for the August of the resolution of withdrawal 4th which up position brought for the set new contained was appellant’s about because realization that if position old were abolished and the new es- prior incumbent, under the tablished rules appoint- have been entitled to service, of civil would ment neiv Suppose appointing authority that an should cre- positions ate 10 thousand inter- or a without 1, 5, Reports. Michigan, approval. intervenor venor’s Under the amendment classify positions, pay fur- fix would rates therefor. How is civil service nish candidates system spoils restored? emasculated and the thus authority suppose appointing abolishes that an Or 1, 5, approval positions intervenor’s or a thousand other and thereafter creates same positions and seeks to with like duties and functions prophesies, intervenor them to be filled, cause admin- in well with the then with those who stand are recreated istration. moment such intervenor will clas- created or sify, similar pay the matter of who fix rates of and control positions. quoted portion fill the The last from shall under brief indicates that its rules intervenor’s positions are the former incumbents of abolished newly- would forthwith be installed in the ones who positions. created lies emasculation Wherein spoils system? and the return to the civil service Again, it is said that elected and com- officials,boards, positions missions are wont to create with nonexist- politically ent fictional a duties as reward for the practice faithful, and that a would result from holding a adverse to intervenor’s Let it be claims. that remembered, however, positions intervenor classifies the pay. and of it fixes rates If were to position by appointing find that a created an author- ity only real no duties and fictional functions, has it province rest within the would of intervenor to clas- pay sify accordingly and fix the rate of finally, to furnish candidate and, for such non- duty, nonpaying if intervenor and, functional does its position. by The hazards to civil service envisioned in intervenor connection seem remote indeed. Finally, urged (1) holding appoint- that a that may positions ing create and abolish with- authorities practice in intervenor’s would result a out subterfuge which fraud and under the civil serv- of v. Control Commission. appoint- ice and amendment would be circumvented ing posi- authorities would use the to abolish getting employees a tions as ruse for rid of not (2) favor that, with the then administration an in- abolishment therefore, tervenor for must be submitted to approval, if for no at least reason, other a, good determination whether it made in was subterfuge. faith a ruse, or was mere fraud or There powers permissible can be doubt no that when exer- legitimate purposes cised for are when denied purpose achieving illegal for the exercised result. v. American Silkworth Local Federation may Labor, Mich 746. That which not be done directly may accomplished by not be indirection. Civil Service Commission v. Auditor General, though appointing may Mich 673. Hence, lawfully acting create and abolish when good they may purpose faith, not do for the so accomplishing that which is in- amendment say, purpose destroying hibited; that is to for the security competent qualified and tenure of employees actually which continue to Wipfler exist. 284 said the matter Klebes, As (30 581) concerning NY 248 NE2d New York’s constitutionally-created system: civil service abolishing posi- “It mean that does the form of design cloak tion not be used to to oust from his position tute a fitness established have person lawfully appointed and to substi- person appointed according to merit and competitive examination. ‘We pointed out often that the mandate of the Con- applies every stitution in the civil legislature may “the State not disre- ’ gard, evade or weaken the force of mandate.” * * * conferring powers upon Statutes local given cannot read bddies to abolish grant effect the to defeat the as a of mandate of provisions and the of Constitution civil serv- Michigan Reports. 327 498 purpose enforcing law, ice enacted for the the man- of date. court behind the form the looks of ordi- purpose nance to determine intended effect, legal and where an ordinance in form an il- cloaks legal purpose produces illegal result adopted courts have said that the ordinance is ‘good faith’ and has no effect.” (The posi- court held that the abolishment of employee longer tion of an no whose services were good needed was, did not evidence a lack of faith legal.) therefore, determining

The function of the existence of fraud subterfuge or a cial. in connection with the abolishment of judi however, not but is, administrative part depart

Intervenor is of executive government. ment of the State Civil Service Com supra. mission v. Auditor Fraud a con General, is clusion of law from Clarke, facts. v. 179 Scofield Drawing judicial 681. Mich conclusions of law is a and not an executive function. It not within the province (Of the civil of service commission. inter Liability est in this connection is Mutual 237.) Co. Baker, v. Mich For cases which this cognizance presence taken Court has or ab subterfuge sence bad fraud or faith, as means defeating preference the veteran’s or civil serv rights ice of an and in which we have in dicated same be a factor in the determination rights the extent of abolishment troit, of such in connection with the City of a see Slavin v. De Walkling 173; 262Mich v. Smith, 276 Mich 193 ; City Rapids, supra; Fricke Grand Clark v. De Commissioner, troit Police 78; Mich Smith v. City Commission, Flint 698; Mich Swantush v. City Employees Detroit, 257Mich 389. affected have abolishments recourse to the courts purpose trying good faith thereof. plain- There are indications in the record that it was Commission. intervenor tiff’s before the that abolish- manager ment of the of business was not way open plain- good fide faith. The bona tiff present validity that claim and to test by appropriate proceedings in a the abolishment jurisdiction. competent court of ap- here the civil service order of pealed be reversed aside, from should and set but rights plaintiff prejudice to the or inter- appropriate proceedings bring in a court venor ques- public competent jurisdiction. No costs, being involved. tion J.

Sharpe, J., with Dethmers, concurred & COMPANY. WHITEHEAD KALES CHIODO v. Compensation Re-Employment—Fraud. — 1. Workmen’s injured in 1944 while had been Alleged steelworker who fraud of paid compensa- employer and workmen’s employed by another to defendant when to disclose such fact tion but failed therefor employment termi- May him in which employed it first award of com- November, 1947, preclude did nated by injury re-employment defend- after pensation for received re- proof is no February, 1948, where there ant representations made at 'time employment was induced employed in 1947. plaintiff first was ^{[1] [1] [2]} 58 Am tions 58 Status Am Jur, Jur, obtaining employment. References employee or Workmen’s Workmen’s for Points Compensation, Compensation, servant as affected in Headnotes ALR 1124. § 282 et 335. seq. misrepresenta

Case Details

Case Name: Kunzig v. Liquor Control Commission

Court Name: Michigan Supreme Court

Date Published: Apr 11, 1950

Citation: 42 N.W.2d 247

Docket Number: Docket 41, Calendar 44,642

Court Abbreviation: Mich.