(concurring). On March 30, 1971 plaintiff’s position as a city employee was declared vacant if he did not comply with residency requirements within 60 days. Plaintiff filed suit instead, asking superintending control by the circuit court and injunctive relief against discharge.
At hearing in the circuit court on petition for temporary restraining order, plaintiff stipulated he was not a resident. The circuit judge not only denied the temporary relief requested, he sua sponte dismissed plaintiff’s complaint.
The appeals commenced. The residency requirement was again upheld,1 the trial court’s judgment affirmed, Gantz v Detroit, 392 Mich 348; 220 NW2d 433 (1974), and then the trial court’s order vacated on rehearing, 392 Mich 369;2 224 NW2d 278 (1974), with instructions to this Court to decide, in effect, if the plaintiff’s claim of denial of *387procedural due process had merit. I concur with Judge O'Hara and hold that it does not.
The Supreme Court instructs us to note that plaintiffs stipulation of nonresidency was "special” for purposes of hearing on the motion. In the context of the argument below it appears to have been so designated to insulate plaintiff from any ancillary or criminal proceeding. After accepting the stipulation the court said:
"The Court: If a criminal penalty can attach under the ordinance, it wouldn’t make any difference just how we got the plaintiff to supply testimony that could lead to his conviction whether in this proceeding or some other proceeding. It would be self-incriminatory, and he would have a privilege to keep it out. I suppose that may be superabundant caution, but because of what I am thinking, I would like to accept the concession limited to that very narrow purpose, and then dismiss or deny — deny the relief requested on the order to show cause and dismiss the complaint.”
What would be the effect of sending this back on remand? This is not analogous to an evidentiary hearing in a criminal proceeding. Here the ultimate fact is uncontested. If we say on the one hand that the Civil Service Commission’s "initiative in this area is clearly beyond its authority”, 392 Mich 348, 367, Justice Levin’s dissent, we must say on the other hand that the controller, or other proper appointing authority, must discharge. Why go round in a circle? The city is a party, the controller its agent. The residency requirement is viable and in Justice Levin’s further words compels discharge:
"The appointing authority, not the commission, decides when, if at all, to discharge an employee. Rule VII, which imposes a mandate on the appointing au*388thority and compels discharge for nonresidence, exceeds the commission’s power to promulgate or enforce.” Supra.
This case does not seem to me to be the proper vehicle for clearing up the confusion caused by the procedural complexities of the Civil Service Commission’s exercising an amalgam of overlapping and perhaps conflicting powers. Can we allow the plaintiff to say, complaint, ¶ 11:
"That pursuant to a) Title 4, Chapter 2, § 18 of the Charter of the City of Detroit, and b) Rule X, § 1 of the Rules of the Civil Service Commission of the City of Detroit, the power to select appropriate discipline, including the power of removal or discharge, is placed with the department head appointing an employee and not with The Civil Service Commission”;
while on the strength of his stipulation in open court conceding:
"I should have been fired by the controller instead”?
The trial judge went to the heart of the matter and decided the controversy. By his stipulation to the determinative substantive fact of nonresidency plaintiff must be estopped from asserting lack of compliance with adjectival, temporizing matters. The allegation that the Civil Service Commission failed to follow its own rules should not be addressed where it is clear that if the Civil Service Commission, the city and other parties together followed the proper procedures, the result would be the vacation of plaintiff’s job or his dismissal from same. There could be no "material prejudice” *389here. Montiy v Civil Service Board of East Detroit, 54 Mich App 510; 221 NW2d 248 (1974).
I concur with Judge O’Hara.
Following Williams v Civil Service Commission of Detroit, 383 Mich 507; 176 NW2d 593 (1970).
Originally printed at 392 Mich 219.