Gantz v. City of Detroit 48 Mich. App. 305

Bronson, P. J.

Early in 1971 plaintiff was employed in the controller’s office of the defendant City of Detroit. Such employees are required to live within the city unless specifically excused from such requirement. (See Williams v Detroit Civil Service Commission, 383 Mich 507, 513; 176 NW2d 593, 596 [1970]). After the City had received an anonymous letter, the Civil Service Commission conducted an investigation and determined that plaintiff did not reside within the City of Detroit.

The Civil Service Commission allowed the plaintiff 60 days within which to reestablish his residence within the City of Detroit, and further ordered that if plaintiff did not so reestablish his *307residence, his position would be declared vacant. Plaintiff filed suit in the Wayne County Circuit Court alleging that the Civil Service Commission was without authority or jurisdiction to discharge him or declare his position vacant. Plaintiff also alleged certain irregularities in the Civil Service Commission procedures which led to his discharge. The records of the city indicate that plaintiff was removed from the payroll pursuant to the above action by the Civil Service Commission. Further, for purposes of this lawsuit, the plaintiff conceded that he was not a resident of the City of Detroit. The trial court denied plaintiff’s request for injunctive relief, and sua sponte dismissed plaintiff’s complaint. Plaintiff appeals and again alleges that the Civil Service Commission was without authority to act as it did and that its procedures were irregular.

This case specifically raises the issue left undecided by our Supreme Court in Williams, supra, when it said:

" * *,* we decline to pass upon the question of enforcement of the rule by discharge of an employee, whether by the commission or by an appointing authority.”

In this Court’s disposition of the Williams case (which the Supreme Court reversed) we held that:

"The appointing authority, not the [Detroit Civil Service] commission, decides when, if at all, to discharge an employee. Rule VII [of the Commission], which seeks to impose a mandate on the appointing authority and to compel discharge for nonresidence, exceeds the power of the commission to promulgate or enforce.” Williams v Detroit Civil Service Commission, 15 Mich App 55, 61; 166 NW2d 309, 313 (1968).

As indicated by the Supreme Court in their deci*308sion in Williams, that decision dealt with the authority of the Civil Service Commission to promulgate such a rule, and not with the authority of the Commission to enforce the rule.

In this case, the trial court held on the issue of enforcement:

" * * * it would be most far-fetched to think that the body which created this rule had no enforcement power at all, that is, power to enforce its own rule.”

Our response to this holding is, first, that there is a good deal of precedent for separating the power to make laws, and the power to execute them; and, second, we adopt the rationale of this Court’s prior holding in Williams, 15 Mich App 55; 166 NW2d 309 (1968), and hold here that the Civil Service Commission is without authority to enforce the residency regulation.

In view of our holding on this issue, it is not necessary for us to consider plaintiffs other argument. The trial court’s order dismissing plaintiffs complaint is set aside, and this cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Fitzgerald, J., concurred.

O’Hara, J.

(dissenting). I agree with the trial judge. It is hardly a novel concept that under our system of government there is a difference between the power to make laws and to enforce them.

However, in the case at bar we deal not with a conflict in authority to make or enforce law, but with a delegation of authority and the implicit authority to enforce the delegated power. Our *309whole national and state system of delegation of power is replete with examples of Congressional and state legislative implicit grants of enforcement power to the concerned board, bureau, or commission. The judicial power properly intrudes only when there is an abuse of the delegated power. If the action of the commission is arbitrary, capricious, or beyond the scope of the power delegated, judicial review is available. The case at bar charges no abuse of delegated enforcement power, merely that such power does not exist.

I hold that it does, and that it is subject to judicial supervision as above noted.

I would affirm the trial judge.