This Court has stated that " * * * It is not to the public good that officers or employees shall accept illegal discharge, or rest quiescent under it, and later mulct the public purse for money not earned." Jones v. Doonan (1933), 265 Mich. 384, 387. In Jones, we quoted with approval from Arant v. Lane (1919), 249 U.S. 367 ( 39 S Ct 293, 63 L Ed 650), in which the Supreme Court cogently reasoned:
As before noted, the civil service commission of Wayne county rejected her petition for reinstatement on September 3, 1953, and her petition to the board of auditors for reinstatement and the payment to her of accrued salary, with additional payments, was not filed until on or about January 3, 1957. Attention is directed to the decision of this Court in Jones v. Doonan, 265 Mich. 384. There the plaintiff was suspended from his position as a policeman in the city of Dearborn by order of the chief of police, based on the fact that plaintiff had been arrested. Such dismissal occurred on August 26, 1929. Subsequently plaintiff notified the commission of safety of the city that the case against him had been dismissed and asked for reinstatement as a patrolman.
As a matter of fact there is some authority to the effect that a municipal employee who asserts he has not been legally dismissed must move seasonably in asserting his continued claim to the office or his failure will result in an abandonment thereof. Jones v. Doonan, 265 Mich. 384; Wayne County Prosecuting Attorney, ex rel. Taxpayers, v. City of Highland Park, 308 Mich. 425. Consistently therewith it has been held that the dismissal cannot be inquired into collaterally, but must be reversed in a direct proceeding therefor. Van Sant v. Atlantic City, 68 N.J.L. 449.
See, also, Sullivan v. State Board of Tax Administration, 290 Mich. 664; Philbrick v. Dust, 178 Mich. 605; and McComb v. Lansing City Council, 264 Mich. 609. Conversely we have held that acquiescence in an illegal discharge for an unreasonable length of time bars any right to compensation. See Jones v. Doonan, 265 Mich. 384, 388, 389; Wayne County Prosecuting Attorney, ex rel. Taxpayers, v. City of Highland Park, 308 Mich. 425. That Michigan is not alone in this position see Phillips v. City of Boston, 150 Mass. 491 ( 23 N.E. 202); Peruzzin v. Test, 282 App. Div. 550 ( 125 N.Y.S.2d 353) ; 145 ALR 767, at 813; and 43 Am Jur, Public Officers, § 381, p 163. In this case we think appellants have each failed seasonably and diligently to lay the foundation for success in the instant appeal by their initial failure to protest or appeal their suspensions by appropriate action before the civil service commission.
In both the mandamus and certiorari cases defendant affirmatively raised the defense of laches, supported by testimony in the mandamus case and in this case by an affidavit attached to the motion to quash the writ of certiorari, showing such facts, which indicate that reversal of the proceedings discharging plaintiff would result in prejudice, detriment and inconvenience to the public service. Under such circumstances we believe that plaintiff's delay of 1 year after the mayor's order of discharge before commencing the mandamus proceedings, with subsequent delay of almost 3 years occasioned by that ill-starred selection of remedy, and his further delay of 9, or at the least 7, months after decision by this Court in the mandamus case before commencement of this action, render him guilty of laches. Jones v. Doonan, 265 Mich. 384; McGregor v. Carney, 271 Mich. 278. Plaintiff cites Chamski v. Wayne County Board of Auditors, 288 Mich. 238, to the contrary. The holding in that case was that plaintiff there could not be held guilty of laches because it is an affirmative defense and no testimony had been offered on the question.
" In Jones v. Doonan, 265 Mich. 384, 251 N.W. 571, the court said: "It is not to the public good that officers or employees shall accept illegal discharge, or rest quiescent under it, and later mulct the public purse for money not earned.
The orderly conduct of municipal affairs requires that an officer or employee, claiming to have been discharged illegally, shall act with reasonable promptness in asserting his right to reinstatement. Our decision in Jones v. Doonan, 265 Mich. 384, is directly applicable. In that case a policeman who was discharged for cause failed to question the legality of his discharge for nearly three years.
In view of the mandatory language of the statute setting pay schedules and the finding that plaintiff objected in fact to pay decreases and in view of the fear of job loss or of other reprisals, we necessarily conclude that he was never in a position to mitigate damages. Jones v. Doonan (1933), 265 Mich. 384, is inapplicable. In Jones, a policeman was discharged and waited for three years before bringing an action for reinstatement and back pay. The court held he was estopped, but here plaintiff was continuously employed in the military establishment and his complaint seeks earned back pay in contrast to unearned pay.
The defendant asserts the plaintiff is barred from bringing his suit by laches and statute of limitations. In support of this claim, defendant points out the present suit was instituted over ten years after the plaintiff's removal and, quoting from Arant v. Lane (1919), 249 U.S. 367 ( 39 S Ct 293, 63 L Ed 650), approved by Jones v. Doonan (1933), 265 Mich. 384, 388, states the plaintiff, "having sat idly by for almost a decade," cannot now present any claims for relief. This argument lacks merit.
Therefore, this Court holds that the civil service commission acted within its constitutionally-granted power in modifying the hearing officer's order so as to deny back pay to plaintiff during his period of suspension when he was under indictment in the recorder's court. Additionally, in Jones v. Doonan (1933), 265 Mich. 384, the Supreme Court held that a former city policeman who sought reinstatement and back pay had unreasonably delayed in asserting his claim, resulting in his abandonment of it, where he declared his intention of never appearing before the trial board and he took no judicial proceedings for reinstatement for a period of nearly three years. In the present case plaintiff was under suspension for nearly three years, during which time he did not appeal.