Defendants appeal from the order of the circuit court of Wayne county, granting a writ of mandamus for restoration of position to a city employee, and back pay.
In November, 1935, the city of Dearborn adopted a civil service amendment to its home rule charter containing, among other provisions, the following:
"SEC. 8. No person shall be discharged from the classified service or be reduced in pay or position or suspended by the appointing officer for or on account of his political or religious opinions or affiliations, or for refusing to contribute to any political fund, or for refusing to render any political service; but nothing in this section shall forbid the removal, dismissal, reduction or suspension of any such employee for any cause other than those hereinbefore enumerated, which, in the opinion of the person with authority to remove or dismiss such employee, may interfere with the efficient discharge of his duties."
In July, 1937, after taking an examination, plaintiff was employed by the library commission. Thereafter, upon taking another examination, she was advanced to the position of senior library assistant, in the classified service. On December 9, 1939, she married and was thereafter, on December 31, 1939, discharged from her position, pursuant to a resolution of the library commission, which had been adopted December 5, 1939. The resolution is as follows:
"Whereas, it has been the established policy of the library commission, since its inception in 1929, to terminate the employment of women members of the library staff upon marriage, except for temporary periods and under exceptional circumstances, and
"Whereas, the library commission, in its sole discretion, and without reference to any action heretofore *Page 189 had or taken by the city council, deems it inadvisable to continue married women permanently on its staff, and
"Whereas, misunderstandings have arisen which require that such policy be properly understood and that all employees of this commission be properly advised in the premises; therefore be it
"Resolved:
"First: That women employees of the library commission who are certified as permanent employees shall upon marriage tender their resignations immediately, and
"Second: That as a prerequisite to permanent employment by the library commission, each such woman employee shall be notified of the contents of this resolution and shall accept such employment subject to the terms and conditions thereof,
"Third: That all the present women employees of the library commission be properly notified of the contents hereof and be further notified that marriage shall constitute cause for termination of employment by the commission in the event no voluntary resignation is received."
Following her discharge, plaintiff filed petition with the civil service commission protesting her removal; but the commission found that she was discharged for violating a rule of the library commission, and denied the petition. On the hearing of the mandamus proceedings, the trial court found that the library commission was limited, in discharging employees, to causes "which, in the opinion of the person with authority to * * * dismiss such employee, may interfere with the efficient discharge of his duties." The court further held that the commission had abused its discretion in discharging plaintiff solely because of her marriage.
Discretion, when vested in public officials, does not mean absolute or arbitrary power. It must be *Page 190 exercised in a reasonable manner, and not maliciously, wantonly, or arbitrarily to the wrong and injury of another. It is not a private or personal discretion, but one to be exercised according to established and well-known principles of law. A rule which assumes that all persons become less competent and efficient after marriage is unreasonable, because purely arbitrary and capricious. Marriage in itself does not constitute a "good and just cause" for discharge. If a public employee is just as competent and efficient after marriage as before, a dismissal because of marriage would be capricious. See School City of Elwood v. State, ex rel. Griffin,203 Ind. 626 (180 N.E. 471, 81 A.L.R. 1027).
In the instant case, discharge is legally permitted for causes which in the discretion of the discharging officer interfere with the efficient discharge of duty. Dismissal because the library commission "deems it inadvisable to continue married women" on its staff, without any implication of inefficiency or misconduct — unless, under this novel and rarified dispensation, marriage must be considered misconduct — is, in view of the causes provided under which employees may be dismissed, arbitrary and capricious.
On appeal for the first time is raised the question that, under section 13 of the civil service amendment to the city charter, plaintiff was properly discharged. Section 13 reads as follows:
"On and after the passage of this amendment, no married woman whose husband is physically and mentally fit and able to provide for himself and wife or family, shall be employed by the city of Dearborn, provided, however, that any married woman in the employ of the city of Dearborn at the time this amendment takes effect shall remain so employed in her respective duties and position, but, *Page 191 shall not participate in, nor share in any rights or benefits, nor shall she at any time come under or be classified as a civil service employee, anything hereinbefore mentioned to the contrary notwithstanding."
We are now called upon to determine this question and to pass upon the constitutionality of the charter. On the trial, for some reason, defendant city was most emphatic in its stand that section 13 be not considered by the court to justify the action of the city. In its opinion, the trial court stated:
"Respondents do not invoke section 13 in support of their action. In that connection, the following is quoted from respondents' brief:
" 'Section 13 of the civil service amendment, relative to employment of married women, was not the basis for plaintiff's removal, nor was it invoked by the civil service commission in considering her appeal to it, and its validity or invalidity is not involved in the issue before this court in this cause.
" 'The action had and taken by the library commission had no relation, whatsoever, to section 13 of the amendment. Prior to the amendment, it refused to hire or keep in its employ married women. It continued this policy in the case of plaintiff and adopted the written resolution, so that there be no misunderstanding upon plaintiff's part, especially after her appearance before it to claim her absolute right to continued employment, though married.' "
There appears to have been an injunction from the Wayne circuit court, outstanding against defendant city, restraining, subject to certain exceptions, the discharge of employees. It does not appear from the record what the scope of this injunction was, but, in the light of the circumstances now before the court, it appears to have been inapplicable to the facts herein. Nevertheless, there was *Page 192 some kind of controversy. It also appears that the attorney general had given an opinion that section 13 of the amendment did not authorize the discharge of a woman employee on the ground of marriage while in service. See, also, Opinion of theJustices to the Governor and Council, 166 Mass. 589 (44 N.E. 625, 34 L.R.A. 58). Whatever the reason, defendants did not want the trial court to consider and pass upon the section in question and, accordingly, the trial court did not consider it in arriving at its determination. It cannot now be considered, for the first time, in this court.
In Chatterton v. Parrot, 46 Mich. 432, 435, Mr. Justice COOLEY stated with reference to the jurisdiction of this court:
"Its jurisdiction is limited to a review of such rulings of the circuit court upon questions of law as were distinctly presented and passed upon. * * * Perhaps the plaintiff supposed he would be at liberty to go back of the judgment and raise any question of law that might have been raised in the court below; but that is a mistake: we might if that were admissible be passing upon questions that were never called to the attention of the trial judge, and perhaps be reversing his judgment on points on which he would agree with us."
In Re Reh's Estate, 196 Mich. 210, 216, appellant attempted to insert a new argument on review, and the court observed:
"It does not appear from the findings whether the bank accounts in question were commercial or savings, but it does clearly appear that the trial court did not pass upon them, for the reason that by concessions of counsel for the respective parties the question of title to cash in bank was eliminated. * * * We, therefore, cannot treat those questions as open for consideration by this court." *Page 193
With reference to the question of the constitutionality of a statute, where it is first raised on review in this court, it was said in Wanstead v. Fisher, 278 Mich. 68, 76:
"Appellants raise the question of the constitutionality of Act No. 280, Pub. Acts 1915 (3 Comp. Laws 1929, § 13512 etseq.), but inasmuch as this question was not raised or passed upon in the court below, we decline to pass upon it."
In Makar v. Peoples Wayne County Bank of Dearborn, 284 Mich. 489,492, the court remarked:
"With regard to the question raised by defendant concerning the constitutionality of the moratorium statute, this question was not raised on the hearing before the lower court, nor was error assigned on this ground. It appears for the first time on appeal in the 'statement of questions involved.' This is not sufficient to present a constitutional question for review by this court."
"The issue of the constitutionality of the statute in question was neither presented to the trial court nor passed upon by it, and, therefore, will not be considered on appeal."Jesiek v. Banfield, 286 Mich. 440, 443.
"It is too well established to require the citation of authority that the case must be heard in this court upon the claim and theory upon which it was tried in the court below."Roepcke v. Railroad Co., 100 Mich. 541, 547.
In this case, the foregoing rule applies with much more force than in the cited authorities. Here, the question was not only not presented to the trial court, but the court was distinctly told that defendants did not rely upon the provision in question and that it should not be considered by the court in its determination. This proposition cannot now be raised for the first time on review in this court. *Page 194
Defendants contend that mandamus is not the proper remedy in this case, for the reason that the controversy involves the discretion of a public official and that the remedy will not lie unless the duty to perform is purely ministerial. The civil service amendment provides that an employee not guilty of the charges made against him shall be reinstated. In this case, the duty to reinstate is mandatory, and not discretionary. The dismissal having been wrongful, it is no longer a question of the discretion of an official with regard to reinstatement, but a mandatory duty, not only to reinstate the employee but to compensate her for full pay for the time of such suspension or discharge. In 43 C. J. p. 912, it is said:
"An employee within the application of such a statute may be removed or discharged only in the manner provided thereby; and where he has been discharged in violation of the statute he may sue in mandamus to compel his reinstatement and payment of his salary from the time of the illegal discharge to the time of reinstatement."
See Wilkinson v. Board of Police Commissioners of City ofSaginaw, 107 Mich. 394; Philbrick v. Dust, 178 Mich. 605;Grobbel v. Board of Water Commissioners of the City of Detroit,181 Mich. 364; Lilienthal v. City of Wyandotte, 286 Mich. 604.
In addition to the restoration of the position to the discharged employee by mandamus proceedings, it is the law in this State that the employee is entitled to recover back pay in the same proceedings, where the amount is liquidated and not in dispute. In Lilienthal v. City of Wyandotte, supra, this court, speaking through Mr. Justice POTTER, said:
"The amount plaintiff is entitled to is fixed and determined and, though mandamus will not ordinarily lie where there is another adequate remedy, Hartz v. Wayne Circuit Judge,164 Mich. 231, or the *Page 195 amount due is in dispute, here the amount due is liquidated and only awaits payment. Under such circumstances, mandamus will issue to reinstate and to pay plaintiff as indicated herein."
The order of the trial court granting the writ of mandamus should be affirmed, with costs to plaintiff.
SHARPE, C.J., concurred in the result.