I am not in accord with Mr. Justice BUSHNELL'S conclusion.
Plaintiffs were employed by the defendant Genesee county road commission on January 21 and February 1, 1946, respectively, as common laborers and truck drivers. Their employment was on the following basis as stated in the applications on which they sought employment:
"If employed, you will be considered as a temporary employee until such time as you have been continuously employed for one year."
It was the practice of the defendant commission to hire extra men for summer work, as temporary employees, *Page 659 and to release some of them in the fall due to seasonal lack of work. This fact, as well as the fact that their application for employment designated the same as temporary, was well known to appellees when they were hired. Mr. Olds, who had been the maintenance superintendent for the defendant commission for about 24 years, testified, without contradiction, as follows:
"When employees are laid off by the county road commission they are always laid off from the temporary employees. All of the men that are hired by the commission are hired as temporary employees for one year, as set forth in their application. From those temporary employees whatever men are laid off are picked from this list to reduce the force."
In November, 1946, plaintiffs were dismissed from employment, the announced reasons being that they were temporarily employed, and that the change of season made it necessary to lay off help.
The instant case is controlled by Walkling v. Smith,276 Mich. 193. In that case Walking, an exservice man, was employed by the Michigan public utilities commission. His employment was designated as follows: "Probable duration of employment temporary." In holding, under substantially the same veterans' preference act that applies to the instant case,* that his discharge was legal, the Court (Mr. Justice BUSHNELL dissenting) said:
"Employment, designated temporary in authorization and appointment, and accepted, negatives permanency and reserves the right of determination by the employer as to time of continuance.
"The veterans' act does not regulate terms of employment but relates to the status as established; it *Page 660 creates nothing nor does it prolong public employment beyond public need."
I agree with Mr. Justice BUSHNELL where he writes that:
"We do not hold that the commission is to be prevented from `screening' their men, that being essential to efficient operation."
But in that connection the record before us discloses the following uncontradicted testimony by Mr. Olds:
"Q. How do you determine who shall be laid off?
"A. That is determined by three of us. We go in and discuss the matter, according to the work that is produced or not produced; their ability to get along in the organization is the factor that we decide on. * * *
"Q. But these men (the plaintiffs) were not dismissed, were they, because of their unsatisfactory work?
"A. They were not of the best caliber of men that we had.
"Q. But is it not true in the statement of the commission that they were not dismissed for the competency of their work?
"A. Not in its entirety. It is partially true and partially it is not, but we had to reduce the force, which we always do in the fall, and we do not keep our poorer employees, in our judgment."
Earl Tuller, maintenance foreman in charge of maintaining and dispatching trucks for the commission, who was consulted in hiring and firing of men, testified:
"Q. Did you have any discussion with either Spaleny or McManus at the time they were dismissed? *Page 661
"A. Nothing, outside of that they came and asked me the reason why, and their work wasn't so good, or something like that — make some casual remark.
"Q. What reason did you give them for their dismissal?
"A. Well, they had been told it was a reduction of force. They knew that. They came to me and wanted to know if the work wasn't satisfactory and I made it plain to both of them that their work had not been satisfactory."
Plaintiffs' discharge was legal and the order of the prosecuting attorney to the contrary is set aside. No costs, a public question being involved.
SHARPE, REID, NORTH, DETHMERS, BUTZEL, and CARR, JJ., concurred with BOYLES, J.
* Subsequent amendments, including Act No. 22, Pub. Acts 1944 (1st Ex. Sess.) (Comp. Laws Supp. 1945, §§ 900, 901, Stat. Ann. 1946 Cum. Supp. §§ 4.1221, 4.1222), have no bearing hereon.