Opinion
Docket No. 85, Calendar No. 44,055.
Decided October 4, 1948.
Appeal from Wayne; O'Hara (Chester P.), J. Submitted June 19, 1948. (Docket No. 85, Calendar No. 44,055.) Decided October 4, 1948.
Bill by Philemon Donald Sabbe against County of Wayne for decree declaring that civil service law does not apply to his position as deputy circuit court clerk. The Civil Service Commission and its members intervened as parties defendant. Decree for defendants. Plaintiff appeals. Affirmed.
Douglas Leo Paterson, for plaintiff.
James N. McNally, Prosecuting Attorney, J. Lynn Fewlass and Julius C. Pliskow, Assistants Prosecuting Attorney, for defendant.
Schmalzriedt, Frye, Granse Frye, for intervenors.
Plaintiff is a deputy circuit court clerk, assigned by the county clerk to the court of one of the Wayne county circuit judges, and performs the usual functions and duties required of a county clerk in relation to the circuit court. Act No. 18, Pub. Acts 1921 (1 Comp. Laws 1929, § 1322 [Stat. Ann. § 5.851]) provides for the appointment of such deputies by the county clerk. Civil service for county employees under the provisions of Act No. 370, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 1464-11 et seq., Stat. Ann. 1947 Cum. Supp. § 5.119[1] et seq.) became effective in Wayne county, upon referendum, in 1942, thus superseding the provisions of said Act No. 18, Pub. Acts 1921, as relates to the appointment of such deputies. See Attorney General, ex rel. Whitcomb, v. Lau, 256 Mich. 13. The civil service act does not include the position in question in the unclassified service and provides that all positions not so included are included in the classified service. The rules of the Wayne county civil service commission are to the same effect.
Plaintiff sought a declaratory decree that the county civil service law does not apply to his position and an injunction restraining the county civil service commission from classifying his position or enforcing its rules against him as a deputy circuit court clerk. From decree for defendants, plaintiff appeals.
It is plaintiff's contention that his position is judicial in nature, that the civil service act cannot apply to the judiciary because of the constitutional separation of powers of the government, and that the act, if by its terms applicable to his position, constitutes an unconstitutional interference with judicial powers.
Plaintiff's position is included within the classified positions under the provisions of the statute and the rules of the commission and is made subject thereto. May the statute and rules so provide?
We have held that the duties and functions of county clerks are purely ministerial and that judicial functions cannot be performed by court clerks, nor may the power to do so be conferred upon them. People v. Colleton, 59 Mich. 573; Wilson v. Genesee Circuit Judge, 87 Mich. 493; Toms v. Recorder's Court Judge, 237 Mich. 413.
In Duncan v. County of Wayne, 316 Mich. 513, we held that the duties of a clerk in the office of a circuit court commissioner are ministerial, not judicial, and that the placing of the position of such clerk under the county civil service act did not constitute an encroachment upon or interference with the judicial branch of government by either of the other two branches. The reasoning and decision in that case are controlling here.
Plaintiff relies upon the following statement concerning a county clerk appearing in this Court's opinion in Smith v. Kent Circuit Judge, 139 Mich. 463:
"He is therefore subject to all the legitimate orders of the court of which he is clerk."
The fact that the clerk is subject to the legitimate orders of the court does not make his functions judicial, nor may the court lawfully order him to perform judicial duties.
Plaintiff also relies on Civil Service Commission of the City of Detroit v. Engel, 187 Mich. 83. As the learned trial judge pointed out in his opinion, the case is clearly distinguishable. Decision did not turn, in the Engel Case, on whether the clerk performed judicial functions or whether placing him under civil service would constitute interference with judicial powers, but solely on the ground that the legislature had established the recorder's court by a local act which provided for appointment of its clerks by that court and that the court possessed jurisdiction over matters of State concern and, therefore, its powers of appointment, given by the legislature, could not be abridged by the city's electors through their amendment of the city charter to provide for civil service, even though they have the power to amend their charter as relates to matters of purely local concern.
Defendants question the propriety of these proceedings and the trial court's denial of their motion to dismiss. Having taken no cross appeal, their contentions in these respects will not be considered here. See Melvindale State Bank v. Eckfeld, 283 Mich. 179; Township of Pontiac v. Featherstone, 319 Mich. 382, and cases therein cited.
Decree affirmed, without costs, a public question being involved.
BUSHNELL, C.J., and SHARPE, BOYLES, REID, NORTH, BUTZEL, and CARR, JJ., concurred.