Civil Service Commission v. Secretary of State

154 N.W.2d 451, 379 Mich. 613, 1967 Mich. LEXIS 106

• Court: Michigan Supreme Court
• Decided: December 4, 1967
• Docket: Calendar 8, Docket 51,573
• Status: Published

Opinions

Kelly, J.

The parties to this appeal agree that “The sole question before this Court is whether the action the civil service commission took in filing suit in the Ingham county circuit court on August 20, 1964, was within the jurisdiction of the Ingham county circuit court.”

Appellants contend that it is a mandamus action with relief sought being “equivalent to a writ of mandamus,” and, thus, the appellate court and not the circuit court had exclusive jurisdiction to consider such an action.

The substance of the complaint follows:

(1) The civil service commission endeavored between July, 1963, and December, 1963, to arrange an agreement with defendant Secretary of State Hare in regard to “bringing the Tee offices’ or Tee branch offices’ of the Secretary of State under civil service,” as required by article 11, § 5, of the Michigan Constitution of 1963.¹

(2) On December 19, 1963, defendant Hare was notified that the commission took the following action.at its December 18, 1963, meeting:

“The civil service commission finds, after extensive investigation, that the operation of fee branch offices in populous areas which could support a full-time State office is a violation of the civil service provision of the Constitution of the State of Michigan which requires that all such positions in the State- service be filled on the merit system basis. The commission also finds that it would not be feasible for the secretary of State to make an immediate change from fee offices to civil service offices. Therefore, the commission will continue to authorize fee payments as it has in the past until June 30, 1964.

“After June 30, 1964, no fee payments will be approved by the commission to persons operating fee branch offices in the Detroit, Pontiac, Flint, Grand Rapids, Saginaw, Bay City, Muskegon, Kalamazoo, and Lansing areas.”

(3) In the latter part of July, 1964, Secretary of State Hare submitted vouchers to plaintiff civil service commission, which the commission disapproved, for the nine branch offices for which the commission had notified the secretary of State it would not approve vouchers after June 30, 1964, and the commission advised the controller not to certify or process the disapproved vouchers.

(4) Defendant controller, at the request of the defendant secretary of State, did process the vouchers contrary to plaintiff commission’s request and certified same for payment to defendant State treasurer, who signed same and turned the checks over to Secretary of State Hare for delivery by him to said fee branch managers.

(5) “That unless restrained and enjoined, the defendants, Glenn S. Allen, Jr., controller of the State of Michigan; Sanford A. Brown, State treasurer; and the department of administration, a statutory agency of State government, respectively, will continue to receive, certify and process all vouchers pre7 sented by defendant secretary of State, representing payment for personal services rendered by the several fee branch office managers located in the nine metropolitan areas of the State under contract with the said secretary of State, and that warrants will continue to be issued by said defendants, signed by defendant State Treasurer Brown and delivered over by him to defendant Secretary of State Hare for delivery by the latter to the payees named thereon, all without the prior approval of plaintiff commission and in direct contravention of the mandate of the people of Michigan, as expressed in the Constitution of 1963.”

After making the above allegations, plaintiffs prayed for an order of the court permanently enjoining the defendants from certifying or processing vouchers representing payments to be made from State funds for personal services rendered the secretary of State of the State of Michigan in the operation of the above named fee branch offices, which vouchers do not have the approval of the commission or which have been specifically disapproved by said commission.

Defendants filed a motion to dismiss, claiming that “plaintiffs’ sole exclusive remedy, if any, is by way of petition for a writ of mandamus in the Supreme Court,” and, also, an answer and “affirmative defenses” wherein they claimed that:

“Appointing authorities can contract for services with independent contractors when it is not administratively efficient to perform the services involved with employees of the State of Michigan. * * * The sole concern of the civil service commission in this case is to classify positions in the State service. The commission has exceeded its constitutional powers in demanding that the secretary of State, against his best judgment, abolish 36 fee offices and replace them with 21 salaried civil service offices and are therefore not entitled for the relief prayed for in their complaint.”

The trial court in its opinion, denying defendants’ motion to dismiss, stated:

“I cannot find that this matter is in the nature of mandamus or that it is in the nature of a mandatory injunction. My opinion is that it is one of restraint only.”

In affirming the trial court, the Court of Appeals held :

“It is abundantly clear from the communications between the commission and the secretary of State that the commission is desirous of effecting a significant change in the fee branch office setup of the secretary of State’s office as the appellant alleges. However, if the commission’s legal conclusion is correct that these fee branch managers are actually employees, it should effect the change.

“This question can and should he determined in the trial court and the instant suit is a proper vehicle.

“We do not agree that the instant suit is really a mandamus action. If the commission is correct these payments may he properly enjoined.”

The substance of the complaint and the prayer for relief sustain the trial court and the Court of Appeals’ decision that the instant suit is not a mandamus action.

The pleadings disclose a dispute as to whether the employees render personal services as claimed by plaintiffs, or are exempt from constitutional requirements as claimed by defendants.

We agree with the Court of Appeals that: “This question can and should be determined in the trial court and the instant suit is a proper vehicle.”

Affirmed. No costs, a public question involved.

Dethmers, C. J., and Brennan, J., concurred with Kelly, J.

1 “The classified state civil service shall consist of all positions in the state service exeept those filled by popular election, heads of principal departments, members of boards and commissions, the principal executive officer of boards and commissions heading principal departments, employees of courts of record, employees of the legislature, employees of the state institutions of higher education, all persons in the armed forces of the state, eight exempt positions in the office of the governor, and -within each principal department, when requested by the department head, two other exempt positions, one of which shall be policymaking. * * *

“The commission shall * * * approve or disapprove disbursements for all personal services. * * *

“No payment for personal services shall be made or authorized until the provisions of this constitution pertaining to civil service have been complied with in every particular. Violation of any of the provisions hereof may be restrained or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state.”