Blynn v. City of Pontiac

Kuhn, J. (after stating the facts). Section 7, — 42 — pt. 1, Act No. 10, Pub. Acts 1912 (Extra Session), (2 How. Stat. [2d Ed.] § 3945), provides in part as follows: “The term ‘employee’ as used in this act shall be construed to mean: (1) Every person in the service of the State, or of any county, city, township, incorporated village or school district therein, under any appointment, or contract of hire, express or implied, oral or written, except any official of the State, or of any county, city, township, incorporated village or school district therein.” The decision of the Industrial Accident Board can be affirmed only if it is found that a policeman of the city of Pontiac, under the facts stipulated, is an employee and not a public officer. Policemen generally are charged with the especial duty of protecting the lives of citizens within certain territorial limits, and of preserving the public peace. The preservation of the public peace being a matter of public concern, it has therefore been said that policemen may be considered as public officers. As a rule, they are appointed under authority given by the State, and therefore have generally not been regarded as servants or agents or as otherwise bearing a contractual relation to the municipality. Schmitt v. Dooling, 145 Ky. 240 (140 S. W. 197, 36 L. R. A. [N. S.] 881 and note, Am. & Eng. Ann. Cas. 1913B, 1078). Chief Justice Marshall distinguished an office from a simple employment in the case of United States v. Maurice, 2 Brock. (U. S.) 96, 103 Fed. Cas. No. 15,747, as follows: “Although an office is an ‘employment,’ it does not follow that every employment is an office. A man may be certainly employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer. But if the duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform, who enters — 43 — on the duties appertaining to his station, without any contract defining them, if those duties continue, though the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.” In the case of Throop v. Langdon, 40 Mich. 673, Mr. Justice Cooley expresses the distinction as follows: “The officer is distinguished from the employee in the greater importance, dignity, and independence of his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or nonfeasance in office, and usually, though not necessarily, in the tenure of his position.” The court of criminal appeals of Texas has decided that “a policeman of a city is a public officer holding his office as a trust from the State, and not as a matter of contract between himself and the city; the word applying equally to every member of the police force,” and that “a policeman is a public officer of the State expressly charged by the statutes with enforcing a large body of the criminal law.” Ex parte Preston (Tex. Cr. App.), 161 S. W. 115. See, also, Woodhull v. Mayor, 150 N. Y. 450 (44 N. E. 1038); 2 McQuillan on Municipal Corporations, p. 940; 5 Id. p. 5049; 28 Cyc. p. 497. Counsel for applicant does not, however, take exception to these authorities as to the status of a policeman generally, but says that they do not bear upon the situation here presented, because the city of Pontiac in its charter has determined it and has classified its policemen as employees. Assuming that the position of counsel for the applicant is tenable, that the city has the authority under the home rule provision of the Constitution to determine that a policeman, who generally would be regarded as an officer, should for the — 44 — purposes of the workmen's compensation law be regarded as an employee (which we do not decide), we are not satisfied that such a conclusion is the proper one to arrive at upon a careful study of the various charter provisions with reference to the police force of the city of Pontiac. A study of these various provisions is convincing that it was the purpose therein manifested to leave the policemen in the category of appointive officers, and not to make them merely employees. This, we think, is apparent from the wording of sections 5 and 6 of chapter X of the charter, which provide as follows: “Sec. 5. The police department shall consist of the chief of police and as many subordinate officers, policemen, and employees as the commission shall by ordinance determine. “Sec. 6. The commission shall by ordinance make and establish rules for the regulation and government of the police department, prescribe and define the powers and duties of the officers and employees of such department, and shall prescribe and enforce such police regulations as will most effectually preserve the peace and good order of the city, preserve the inhabitants from personal violence, and protect public and private property from destruction by fire and unlawful depredation.” It is clear that in the department of police it is sought to distinguish between officers and employees, and in section 5 policemen are spoken of independently of employees. It is true that section 10 of chapter VII, which provides that each member of the commission shall have authority to employ such employees as may be necessary to conduct their several departments in an efficient manner, and that such employees may be discharged at the pleasure of the member making such employment, is the only section in the charter which provides for the appointment of policemen. But, in view of the distinction clearly made in the sections — 45 — with, reference to the police department, the word “employees” used in this section should not be held to have been used in any other than the comprehensive sense of including all persons serving the public in these departments, whether filling an appointive office or merely occupying a temporary contractual relation to the municipality as an employee; and this use of the word should not be held to deprive a policeman of the city of Pontiac of the dignity and importance which it is generally recognized attaches to his position. It is said that in the case of Attorney General v. Cain, 84 Mich. 223, on page 227 (47 N. W. 484 on page 485), it was held that a policeman was not a • public officer. But that was a quo warranto proceeding and the court said: “We do not think the position of policeman, under these circumstances, is such an office as authorizes the attorney general to file an information by quo warranto in this Court to test the title to the position. It was said in People v. De Mill, 15 Mich. 182 [93 Am. Dec. 179] that: “ ‘There are grades of positions denominated “offiees” which do not rise to the dignity of being entitled to the notice of the attorney general by information.’ See, also, Throop v. Langdon, 40 Mich. 686. “It is certain that the intent of the charter is that these policemen shall be subject to the orders and direction of the common council, and that such council, has the power at any time to remove them.” This case was referred to in the later case of Trainor v. Board of Auditors, 89 Mich. 162 (50 N. W. 809, 15 L. R. A. 95). While this latter case says that a policeman in the city of Adrian is not a public officer, referring to Attorney General v. Cain, supra, it must be said that this decision goes only to the extent of holding that, since in that city policemen were removable by the council at pleasure, it would be use — 46 — less for the attorney general to institute proceedings to determine who was entitled to the position. Under these circumstances, it was not such an office as would authorize the attorney general to file an information by quo warranto in this court to test the title to the position. Being satisfied that a policeman is an appointive officer under the provisions of the charter of this city, required to take an official oath of office, which it appears was done in this case, it follows that he came within the exception in subdivision 1, § 7, pt. 1, Act No. 10, Public Acts 1912 (Extra Session), (2 How. Stat. [2d Ed.] § 3945), and is not an employee, as defined by said act, and therefore does not come within its provisions. Any effort to enlarge the scope of this act should be addressed to the legislature. The decision of the Industrial Accident Board will be reversed and the claim of the applicant is disallowed. Brooke,- C. J., and McAlvay, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.