On December 28, 1946, Wyman S. Abel and 277 others filed a bill in the circuit court for the county of Wayne, in chancery, against Edward Behrendt, sheriff-elect of Wayne county, Andrew C. Baird, the incumbent sheriff, whose term of office expired three days later on December 31, 1946, the civil service commission of the county of Wayne, its members and personnel director, and the chairman and members of the Wayne county board of auditors. One of the plaintiffs, Mabel L. Seaborg, signed and swore to the bill of complaint as agent for all of the plaintiffs and on her own behalf. Eighty-three of the plaintiffs have filed affidavits to the effect that they never gave their consent to become parties plaintiff to the case, and that their names had been signed without any authority whatsoever. They had a right to withdraw as parties plaintiff.
Plaintiffs alleged in their bill that for months and years each and all of them have been employees in the sheriff's office of Wayne county, having been selected and appointed to their positions by the sheriff, and having performed their duties under his supervision. They set forth the adoption of a *Page 619 county civil service system by the electors of Wayne county in conformity with Act No. 370, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 1464-11 et seq., Stat. Ann. 1947 Cum. Supp. § 5.1191 [1] et seq.), effective on November 20, 1942. They further allege that some of the plaintiffs had been in the employ of the sheriff of Wayne county for more than two years prior to the date the civil service act became effective in the county, that many others of the plaintiffs are fully entitled to the benefits of the act, and that they and the positions they respectively hold and occupy are entitled to be blanketed into civil service status. They allege a failure on the part of the civil service commission to perform its duty to classify their positions under civil service and claim that the commission has discriminated against them.
It is also alleged that the sheriff-elect, Edward Behrendt, has announced his intention to remove plaintiffs from their positions, contrary to their rights under the civil service act, without any action on the part of the civil service commission. They ask for writs of injunction and mandamus to prevent the sheriff-elect from discharging or removing them. They also pray that a declaratory judgment be rendered to the effect that each and every one of them is entitled to be blanketed into civil service status as employees of Wayne county, and that each of them is entitled to the civil service status applicable to their several positions under the rules and regulations adopted by the county civil service commission. They further pray that the defendants be ordered to perform each and all of the acts and duties by law incumbent upon them severally to be performed.
On application, an order to show cause why a temporary injunction should not be granted was issued. *Page 620 Evidently no temporary injunction was issued. All of the defendants, with the exception of Baird, moved specially to dismiss the plaintiffs' bill of complaint.
Defendants contend that plaintiffs have a full, adequate and complete remedy at law by petition for writ of mandamus, and that their bill does not state an equitable cause of action. In their motion to dismiss, they also insist that there is an improper misjoinder of parties, and that the legal question involved had been decided adversely to plaintiffs in two cases that arose in the Wayne circuit court. Defendants specifically refer to the cases of Hunter v. Sheriff of Wayne County, and Wagner v. Sheriff of Wayne County, decided by Circuit Judge John V. Brennan on December 10, 1945, in which he held that deputy sheriffs are not subject to the provisions of the county civil service act. On September 12, 1946, application to this Court for leave to appeal from this decision was denied.
Numerous affidavits were filed in the instant case by the respective parties. Plaintiffs claim that the decisions in the Hunter and Wagner cases do not affect them as they were not parties to the litigation. It seems that in those cases, Mr. Baird, by whom almost all of the plaintiffs were employed as deputies, strenuously claimed that neither Hunter nor Wagner, two of his deputies, came under the civil service act and that he had a right to discharge them. Plaintiffs now claim that the court was wrong in upholding Mr. Baird's claims. However, defendants contend that if plaintiffs were dissatisfied with the decisions in the Hunter and Wagner cases, it was their duty to act promptly. Wagner, the plaintiff in one of the cases, had held the position of jail superintendent under Sheriff Baird, and the cases and their outcome undoubtedly came to the attention of *Page 621 almost all of the plaintiffs. Defendants claim that there was ample time from December 10, 1945, when Judge Brennan handed down his decision, or from September 12, 1946, when this Court denied application for leave to appeal, or even from November 5, 1946, when Mr. Baird was defeated at the polls, in which to file a proper petition for a writ of mandamus to have the rights of the plaintiffs determined. Defendants point out that the plaintiffs' bill was filed only three days (one of which was a Sunday), prior to the time the sheriff-elect was to take office, and that it is the duty of the incoming sheriff to make his appointments of deputies in advance so that the administration of the office may be taken over smoothly without interruption. The contention, in effect, is that plaintiffs have been guilty of laches. However, laches is a personal defense which must be pleaded, and as no answer has yet been filed by defendants, that question may not be considered at the present time.
In the motion to dismiss, it is further claimed that plaintiffs have joined a petition for writ of mandamus, a law action, with a bill in equity. While there may be real merit to this claim, we do not pass on it now. Plaintiffs, on the other hand, insist that, in the last analysis, the suit is one for a declaratory judgment. Defendants claim that such a suit would be improper, as mandamus furnishes a full, complete and adequate remedy, and that plaintiffs cannot by-pass the civil service commission by asking for a declaratory judgment blanketing the plaintiffs into civil service status. We have frequently held that where relief may be obtained at common law, a declaratory judgment* will be denied. Miller v. Siden, 259 Mich. 19; Page v. Story,280 Mich. 43; *Page 622 Rott v. Standard Accident Insurance Co., 299 Mich. 384. Also, see annotation in 172 A.L.R. 847, at page 861.
The county civil service act (Act No. 370, Pub. Acts 1941,supra) provides in section 14 that all appointed officers and employees of the county who have held their positions for more than two years prior to the effective date of the act, shall hold their positions without examination, while those who have been employed for one year and less than two years shall be required to take a qualifying examination, and those employed for less than one year shall be required to pass a competitive examination. Provision is also made for filling of vacancies. Even assuming that the decision of the circuit judge in the Hunter and Wagner cases would be reversed, still this Court could not, by a declaratory judgment, by-pass the civil service commission and order all of the plaintiffs to be blanketed into civil service status.
Plaintiffs claim that by bringing the present form of action they avoid a multiplicity of suits. However, if class suits were brought, it would require but three suits to classify deputy sheriffs who respectively began their terms of office either two years, one year or less than one year prior to the effective date of the act.
However, in one of the exhibits filed by plaintiffs it appears that several of the plaintiffs were employed by Sheriff Baird in December, 1946, but a few weeks prior to his retirement from office. The question naturally arises how does this affect plaintiffs. The bill does not show what positions the plaintiffs held.
The trial judge, in a short opinion, took the view that the question raised by the bill of complaint is *Page 623 whether the parties come under the jurisdiction of the civil service commission. He said:
"The court feels that he is unable to tell by the bill of complaint and the affidavits filed with the motion to dismiss just the particular status of the plaintiffs in the action, that is, whether they are deputy sheriffs or whether they are members of the sheriff's staff that are not deputized; that therefore he cannot on this motion to dismiss decide that question."
The facts were not before the circuit judge and they are not before us on a motion to dismiss. It is true that on a motion to dismiss we must assume all well-pleaded facts alleged in the bill of complaint to be true. On the present record the trial judge did not have a full opportunity to ascertain all of the facts and then come to an independent conclusion. We are not able to do so either. We, therefore, believe that the order denying the motion to dismiss should be affirmed and the case remanded for further proceedings, but without costs, a public question being involved.
BUSHNELL, C.J., and SHARPE, BOYLES, REID, NORTH, DETHMERS, and CARR, JJ., concurred.
* See 3 Comp. Laws 1929, § 13903 et seq. (Stat. Ann. § 27.501 et seq.). — REPORTER. *Page 624