Lenz v. City of Detroit

135 N.W.2d 904, 376 Mich. 156, 1965 Mich. LEXIS 206

• Court: Michigan Supreme Court
• Decided: July 13, 1965
• Docket: Calendar No. 15, Docket No. 50,439
• Status: Published

Opinions

O’Hara, J.

This appeal brings up the continuing effort of John N. Lenz to obtain judicial relief from what he has alleged was an actionable denial, by the then mayor of Detroit, of administrative due process. See Lenz v. Mayor of Detroit, 338 Mich 383, decided December 29, 1953; Lenz v. Mayor of Detroit, 343 Mich 599 (certiorari denied 351 US 983 [76 S Ct 1050, 100 L ed 1497]) decided December 1, 1955, and Lenz v. City of Detroit, 361 Mich 166, decided September 16, 1960. The appeal before us presents for review a judgment that Lenz take nothing by his November 29, 1961 declaration in assumpsit. The gist of that declaration is a demand for damages caused by Detroit’s alleged breach of Lenz’ contract of employment with the city.

The point made in this latest action is familiar. Lenz says he has a right of action against Detroit because his discharge by the city from employment was illegal in that it was accomplished in violation of section 2 of the veterans’ preference act (CL 1948, § 35.402 [Stat Ann 1961 Rev § 4.1222]). Now, as against his former failure to present claim for damages under title 6, chap 7, § 11 of the charter of Detroit and our adjudication that such presentment was a condition precedent of suit for damages by Lenz (361 Mich 166), Lenz says that he presented (January 17, 1961) his claim pursuant to said section 11; that it has been denied by the common council of Detroit, and that he is free to present that claim in the courts for meritorious determination.

We hold that the section 11 filing by Mr. Lenz of his-claim was too late and that the right of action pleaded here was barred by expiration of the regular six-year statute of limitations (CLS 1956, § 609.13 [Stat Ann 1959 Cum Supp § 27.605] ).

* Mr. Lenz’ right to file under section 11 accrued, along with his right to seek reinstatement by constitutional writ, when the then mayor of Detroit discharged him February 6, 1950 (for the mayor’s letter of discharge, see 338 Mich 390, 391). Most certainly his right to file under section 11 accrued December 29, 1953, when this Court quashed the circuit court’s writ of mandamus and dismissed Lenz’ then effort to have the mayor’s order of discharge set aside. Yet he presented no claim, under section 11, until January 17, 1961. By that time the right of action pleaded here had become extinct.

There is a suggestion in the briefs that the proceedings instituted by Mr. Lenz, first by mandamus to compel reinstatement and then by certiorari to review his discharge, somehow tolled the running of the statute. No authority for the proposition is cited and we find none. The question is governed by the rule of General Discount Corp. v. City of Detroit, 306 Mich 458, 464. That case turned upon another tardy presentment under section 11. The ruling was that the “statute could not be tolled” when, prior to presentment under section 11, “the six-year period had already expired.” We must adhere to such ruling.

The judgment of the circuit court, entered March 27, 1963, is affirmed. No costs.

T. M. Kavanagh, C. J., and Dethmers, Kelly, and Smith, JJ., concurred with O’Hara, J.

For current provisions see PA 1961, No 236, § 5813 (CLS 1961, § 600.5813 [Stat Ann 1962 Rev § 27A.5813]),