Kunzig v. Liquor Control Commission

42 N.W.2d 247, 327 Mich. 474, 1950 Mich. LEXIS 463

Opinions

Boyles, C. J.

In this case we are asked to define the respective powers of the liquor control commission and the State civil service commission as applied to the plaintiff, under the 2 constitutional amendments

Footnotes

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* by virtue of which said commissions were created.

In 1943, the State civil service commission, at the request of the liquor control commission, established in the classified civil service the position of business manager for that commission, designated as liquor control executive 7, and otherwise called executive director. The civil service commission provided tests for candidates and after competitive examinations furnished the liquor control commission with a register from which to make selection. The plaintiff Louis A. Kunzig was selected and on March 1, 1944, became an employee in the classified civil service of the State as business manager for the liquor control commission. He remained in the performance of Ms duties as such until sometime in August, 1949, when the events hereinafter related took place.

On August 4, 1949, the liquor control commission adopted a resolution, part of which is as follows:

“Having carefully considered the above reorganization with an eye to effecting economy and cutting red tape, the commission now petitions the Michigan civil service commission to abolish the position of executive director and director of store operations of the Michigan liquor control commission.”

In addition, the resolution purported to divide certain duties and responsibilities between directors of licensing, purchasing and merchandise, enforcement, finance, and personnel and office services, over which the commissioners themselves should have direct supervision. On the same date that resolution was sent to the civil service commission with a letter' requesting prompt consideration.

On August 8th the civil service commission received a notice of the layoff of Kunzig and on the same date Mr. Kunzig filed with the civil service commission an appeal from such layoff and a request for early consideration thereof. The matter was set for hearing by the civil service commission pursuant to the petition of the liquor control commission and the appeal of Mr. Kunzig, for September 7, 1949, at 10 a.m.

On that date, about 30 minutes prior to 10 a.m., the liquor control commission adopted another resolution rescinding its resolution of August 4th, and further resolving:

“That the positions of executive director and of director of store operations be and the same are hereby abolished effective September 10, 1949.”

At the same time, a letter was addressed to the civil service commission, stating:

“You are hereby notified that the liquor control commission has this date by resolution, abolished the positions of executive director and of director of store operations, and that in consequence thereof Louis A. Kunzig has been laid off from his duties with this commission, all effective September 10, 1949.”

Also, at the same time, another letter from the commission was addressed to Mr. Kunzig notifying him of the abolishment of his position and his layoff from his duties with the liquor control commission, effective September 10th.

An assistant attorney general then appeared at the hearing before the civil service commission, presented the resolution above referred to, and stated the position of the liquor control commission as follows :

“Mr. Leacock (assistant attorney general): It is the position of the liquor control commission that there is nothing in the powers enumerated in article 6, § 22, of the Michigan Constitution that authorizes the civil service commission to step over the line of demarcation between personnel problems and administrative problems and invade the administrative field. * * * "We are before this commission on appeal by General Kunzig on abolishment of job and layoff. That’s what we are here before you for. * * * The question is whether the liquor control commission now, after finding in their own discretion that the job is perhaps superfluous, perhaps unnecessary, perhaps a bottleneck, I do not wish to state the exact reason at this time, but for some reason in their own discretion it is not necessary or desirable, whether they may abolish that position without the approval of the civil service commission, and I think that’s an entirely legal point and can only be determined by reference to the amendment. It can be determined by reference to the rules of this commission only to the degree that the rules are substantiated in the amendment. Everything rests upon the amendment.

“Mr. Moll (civil service commissioner): Mr. Lea-cock, then your position now is, the liquor control commission has the right to abolish this classified civil service position for reasons sufficient to itself without consultation or without the approval of the civil service commission? That’s your present question, is it not ?

“Mr. Leacock: That’s our present position for the purpose of this hearing.”

The civil service commission, evidently concluding that consideration of the abolishing of the position of Mr. Kunzig as a State employee in the classified civil service was within its jurisdiction, proceeded with the hearing, considered the duties performed by Mr. Kunzig as,business manager, his efficiency in' so doing, and the legality of his dismissal; and on September 7th entered an order, the material part of which is as follows:

“The civil service commission denies the legal right of the liquor control commission to abolish the. position in question for any administrative reason (and particularly for any reason disclosed in the. testimony), without the previous approval of the. civil service commission. * * * The position of liquor control executive 7, as established by this commission, remains a position in the State civil service and the incumbent, Louis A. Kunzig, is hereby reinstated therein.”

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

Shorn of all nonessentials, the precise question is whether the liquor control commission may abolish a position in the State classified civil service without reference to any power conferred upon the civil service commission by the civil service amendment. The authority of the liquor control commission to reorganize its department, assign specific functions to its employees, formulate policies for the liquor business, and exercise complete control of the alcoholic beverage traffic in this State, including the retail sales thereof, subject to statutory limitations, is not involved. We are not here called upon to decide whether the liquor control commission may reorganize its department, open or close State liquor stores, or otherwise regulate the purchase, transportation or sale of intoxicating liquor. The Constitution * gives the liquor control commission such powers, subject to statutory limitations.†

The powers conferred upon the civil service commission by the Constitution become involved only when the acts of the liquor control commission impinge upon the powers conferred upon the civil service commission by the Michigan Constitution (1908), art 6, § 22. The 2 amendments (liquor control and civil service) must be considered and construed together, and in case of conflict the civil service amendment, adopted later in point of time, controls.

“When 2 provisions of the Constitution appear to conflict in a measure, it is the Court’s duty to reconcile them as far as possible with an eye to accom plishing the result intended by the pertinent sections when construed together. # * *

“Rule that where there is an amendment to the law qualifying or restricting an earlier provision of the law, the later or amendatory provision must control, applies to an amendment of the Constitution which restricts a previously adopted provision.” Thoman v. City of Lansing (syllabi), 315 Mich 566.

A State employee in the classified civil service may appeal to the civil service commission for a hearing in the event of his removal or demotion in the State civil service. Under the concluding section of the amendment, observance of any of its provisions may be compelled, and is subject to judicial review.

“It does not lie within the power of the (civil service) commission to decide with finality whether its acts are in conformity with constitutional requirements as a matter of fact or of law. That is a question for judicial determination.” Reed v. Civil Service Commission, 301 Mich 137, 151.

The first paragraph of the civil service amendment does not include employees of the liquor control commission among the elective State officers, heads of departments, et cetera, who are exempt from the authority of the civil service commission, and the position of liquor control executive 7 (business manager) has not been selected by the liquor control commission as one of the 2 exempt positions which said paragraph allows to each elected administrative officer, department, board and commission. Mr. Kunzig is a State employee in the classified State civil service and the State civil service commission has jurisdiction over his position as such. The civil service amendment so provides, as follows:

“The commission shall classify all positions in the State civil service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the State civil service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the State civil service. No person shall be appointed to or promoted in the State civil service who has not been certified as so qualified for such appointment or promotion by the commission. No removals from or demotions in the State civil service shall be made for partisan, racial, or religious considerations.”

The civil service commission may exercise authority over removals in the State civil service. Otherwise, it would have no initial supervisory control over a question as to whether a removal or demotion has been made for partisan, racial, or religious considerations.

We conclude that the liquor control commission in its resolution of August 4, 1949, when it petitioned the civil service commission to abolish the position 'of liquor control executive 7, correctly considered that the civil service commission had a constitutional measure of control over the removal of Mr. Kunzig. Instead of presenting to the civil service commission the advantages or necessity of abolishing this classified civil service position in the process of a reorganization of the department, it erroneously concluded that the civil service commission had no authority over the abolishment of a position in State employment in the classified civil service. On its appeal here the liquor control commission relies upon its claim that it had the right to abolish a position in the classified civil service without reference to the constitutional powers of the civil service commission. That is not the proper construction of the constitutional provisions here under consideration.

The finding of the civil service commission was based on the showing made at the hearing and need not necessarily be considered as a finding that the attempt to abolish the position of liquor control executive 7 and to dismiss Mr. Kunzig was induced by subterfuge or fraud. In this case the employee expressly disavowed any claim that his removal was brought about purely for political reasons.

The order of the civil service commission was within its constitutional powers and is affirmed. No costs are awarded, a public question being involved.

Reid, Butzel, Carr, and Bushnell, JJ., concurred with Boyles, C. J. North, J., concurred in the result.

Liquor control commission, Mich Const (1908), art 16, § 11, adopted in 1932.

Civil service commission, Mich Const (1908), art 6, § 22, adopted in 1940.

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“The legislature may by law establish a liquor control commission, who, subject to statutory limitations, shall exercise complete control of the alcoholic beverage traffic within this State, including the retail sales thereof.” Mich Const (1908), art 16, § 11, ratified at the November election, 1932.

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PA 1933 (Ex Sess), No 8 (CL 1948, § 436.1 et seq. [Stat Ann and Stat Ann Í949 Cum Supp § Í8.971 et seq.]).