(dissenting). Apparently John N. Lenz just cannot get the notion out of his head that somehow, sometime, our Court will dispose of his case on the merits.
Many years ago the mayor of Detroit, charged by law with the duty of affording Lenz a full hearing as to his discharge, became impatient with him, walked out of the hearing before Lenz’ testimony was all in, and then ruled against him.
Lenz thought this was unfair and went into the circuit court in mandamus. His theory was that the mayor had a clear legal duty to give him a fair hearing before firing him, and, not having done so, the mayor should be ordered to restore him to duty. *174Certiorari, he argued, would lie to bring up errors of law if a hearing were fairly conducted, but this, he claimed, was no hearing at all, but, rather, a kangaroo court. At any rate, in the circuit court he won and it was ordered that the mayor forthwith restore plaintiff to employment. We, however, reversed on the ground that mandamus was not the proper remedy.1 Before us the city argued strenuously that Lenz was guilty of laches but we found it unnecessary to pass on the question. Nor did we pass on the merits. The decision was solely on procedural grounds, resting entirely on the murky distinction, easy to state and hard to apply, between certiorari and mandamus. Lenz v. Mayor of Detroit, 338 Mich 383.
Lenz then started all over again, this time in cer-tiorari. Again he won in the circuit, and again the city appealed. This time a majority of our court found the city’s charge of laches, which we had ignored in the former case, decisive. Lenz v. Mayor of Detroit, 343 Mich 599.
It was said that his position had been abolished, though the dissent pointed out that the so-called abolition
“did not take the other legislative clerk (there were 2 such, Lenz and Hardy) off the city payroll, he having been transferred to other work at the same pay, and a similar solution, the record indicates, was at one time contemplated with respect to plaintiff but rejected because of actions taken by him.”
It may be gathered, I assume, that I am not impressed with the legality of the device of abolishing an alleged troublemaker’s job as a handy means of *175getting rid of him, particularly where he is protected by the veterans’ preference act.2 Since any text will furnish the authorities, I forego the citations.
It will he noted that neither decision went to the merits. The most that could he said for the last one was that we reached hack on the shelf for the sword of laches tendered us for use against Lenz in the first case, dusted it off, and ran him through with it.3
But Lenz dies hard. He has read somewhere of something called “a day in court” and he doggedly pursues it. When our majority decided in the second Lens Case that he came to law too late to get his job back he had to, perforce, accept the decision. But we did not decide whether his discharge had been *176wrongful or rightful. He insists it was wrongful and arbitrary and he conceives that he has a right to damages arising therefrom, whether he ever gets his job back or not.
Consequently this suit, in assumpsit. He says he was wrongfully fired and he wants his damages, which include loss of salary, pension rights (he was within a few years of it), and other claims we need not recount. The facts were all stipulated.
But at this juncture another procedural objection was successfully interposed by the city. This time it was the statute of limitations that was used against him. The trial court expressed some doubt as to damages suffered and mentioned (without ruling thereon) the possible defenses of res judicata and failure to file a claim with the city council under its charter provisions.4
Is such failure fatal to Lenz’ right to recover ? On the one hand we might close the matter simply by pointing out that the charter provides that “any demand or claim against said city” shall first be presented to the common council. Lenz admittedly has not done so. Thus inexorable logic, if that is all we should consider, would lead us to the facile conclusion that he may not sue.
But it is only by divorcing these words from their history and the precedents that we are justified in such conclusion. For if anything is clear in the development of the claims and demands statutes common in this country, it is that they are interpreted neither broadly, being in derogation of the common law, nor blindly. Their purpose will be found in the cases cited in 17 McQuillin,5 §§ 49.11 and 49.12. The city, it is said, is to be provided with full information concerning the rights asserted against it, in order *177that it may investigate the incident complained of, discover the pertinent facts, and possibly adjust in amity. It must not be left in the dark as to what is involved in some obscure claim. Much of this, of course, goes straight back to the divine right of kings, for a city has the same discovery and settlement processes open to it as any other litigant, but such, at any rate, is the theory. But the rule does not have the all-embracing effect appellees here seek to give it. Thus if an affirmative act of the city itself causes the injury, it has been held6 that no notice need be given of the claim or demand. Why not? Because in such case (p 180) “the municipality which is entitled to the notice must know of the injury, and hence notice would be unnecessary.” |Bnt the most comprehensive shrinking of the literal breadth of the notice requirement was that of our own court, and properly so. Claims and demands made against a city arising out of its operation of a bus were held not within the notice requirement in Borski v. City of Wakefield, 239 Mich 656. Why not? Because the city was operating the bus in a proprietary capacity, not as a sovereign. Obviously, then, it is not enough merely that a “claim or demand” be involved. The words require interpretation, not automatic application. We proceed, then with interpretation.
Here Lenz asserts that his presentation of a claim to the city would be, in his words, ridiculous. He argues that the situation presented is not within the purpose of the act, since no investigation is called for and, obviously, there is no hope “amicably” to adjust the matter now being litigated for the third time. He says that no official of the city of Detroit would have the legal power to award damages for his wrongful discharge since there has never been a determination of this question on its merits. He *178makes, as well, additional arguments with respect to the application of the ordinance to his case but they all boil down to the simple proposition, variously stated that a claim, under the circumstances of his case, is not within the purview of the ordinance.
The problem here faced is as old as the law itself. It involves the conflict between the administration of justice according to the literal words of a statute, ordinance, or rule, and its administration according-to what we conceive, after much search, to be the purpose in the words employed. It was Judge Learned Hand who once wrote that it is “one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary.”7 The late Judge Jerome Frank, of the second circuit,, expressed the same thought, reminding us of Cor-bin’s insistance that' “able judges cannot live by rules alone.” They, he said, serve to “nudge the judge, give him hints, strong hints he must seldom disregard; but a judge who knows nothing but the rules will be a judicial routineer, a dispenser of injustice, since * * * the art of judging really lies in the ability to cope with the unruly.”8
As for me, the choice was long-since made and I am not induced to recant. Viewing the ordinance in the light of its purpose it is clear to me that it has no application to the case before us, indeed, as Lenz himself put it, that it would be ridiculous to make such application. If we interpret the ordinance (as we did in Borski, supra), within the framework of applicable common-law principles, there is an elementary, conclusive answer to the asserted requirement that claim should have been made before this court action was filed: the law never requires a litigant to go through the idle ceremony of making a *179futile demand. The principle finds application in all fields of the law. In the law of conversion, no demand need he made if it is clear that it would be useless or unavailing.9 In the law of corporations, no demand need be made (that the corporation itself sue) prior to a stockholders’ derivative suit if it would be fruitless.10 The futility, moreover, need not be proved to a mathematical nicety. The law is a practical business and it does not require the impossible, namely, precise proof of future events. It is enough if refusal may be “inferred with reasonable certainty.” (Polish American Case, supra.) But we need hot rely upon analogy, apt though it may be. We have held squarely in this area (of the •demand upon the Detroit common council) that such will not be required if “it would have been a useless gesture.” (Ely v. City of Detroit, 306 Mich 300.) In Ely the corporation counsel had refused to recommend payment of any part of the bill sued upon. In fhe case before us his action was even more clear, involving, as it did, protracted litigation.
There may be those who would insist that after 10 years of unremitting effort to obtain reinstatement, and after 2 lawsuits, each of which was won below but lost in this Court, if Lenz now presents to the city of Detroit a claim for damages, it might see the error of its ways (despite what we have ruled), repent, and concede that he has suffered a wrong after all, something it has successfully denied, through its proper legal and administrative officials, for the past decade. The gracious and generous thought does credit to all who nourish it. As for myself, I do not regard it as reasonable. I have concluded, with much regret, that the milk of human kindness is neither so rich nor so abundant. In short, it is my opinion that making such demand *180would be a useless act. If I were convinced otherwise I would order its filing nunc pro tunc upon remand for trial.11
Without, as we have noted, passing upon the defenses of res judicata, or failure to file a claim, the trial court squarely held that “the statute of limitations is a complete bar to recovery by the plaintiff if he has any right to sue for damages in the first place.”
Is it? Is there only one cause of action involved here ? Or may the same set of facts eventually give rise to several causes of action? We take it as settled that the latter is the true situation. Thus in Kelly v. Chicago Park District, 409 Ill 91 (98 NE2d 738), plaintiffs, asserting wrongful discharge, were upheld after prolonged mandamus proceedings. Their action for salaries wrongfully withheld was challenged on the ground that the 5-year statute of limitations barred recovery. The court held not.
“The cause of action for salaries could not accrue to plaintiffs until their rights to their respective positions were first determined. * * * Where a party’s success in one action is a prerequisite to his right to maintain a new action, the statute of limitations does not begin to run as to the new action until the determination of the pending suit, which decides whether the new right exists.” (pp 95, 96.)
Similar was the result in City of Phoenix v. Sitten-feld, 53 Ariz 240 (88 P2d 83). Here a policeman, allegedly wrongfully discharged after fruitlessly appealing to the civil service board, tested the action in certiorari. The trial court, on December 29th, *181found the discharge wrongful and ordered his reinstatement. The city was reluctant and did not finally reinstate him until May 7th, just short of the time limit for appealing the decision of the trial court. His salary claim was resisted under the statute of limitations. This the court rejected. It first held that the salary claim must he' determined by the validity of the discharge, and that this was not known until the court’s decision on December 29th. It then held that, since the city had 6 months for appeal, the policeman’s action for salary would have been premature until expiration of the right to appeal or acquiescence in the trial court’s decision. The statute did not begin to run, it was concluded, until May 7th, the date the city accepted the judgment by reinstating the officer.
The reasoning of the above and similar cases directly supports plaintiff’s position. At the time of plaintiff’s so-called discharge he had, theoretically, 2 inconsistent courses of action open to him: he nould accept the discharge as effective (this being the normal situation when an employee is discharged) .and sue for damages if the discharge were wrongful, .as, perhaps, in violation of contract. Or, in the alternative, he might reject the discharge as being ineffective and sue for reinstatement, with incidental damages. As a matter of fact there is some authority to the effect that a municipal employee who asserts he has not been legally dismissed must move seasonably in asserting his continued claim to the office or his failure will result in an abandonment thereof. Jones v. Doonan, 265 Mich 384; Wayne County Prosecuting Attorney, ex rel. Taxpayers, v. City of Highland Park, 308 Mich 425. Consistently therewith it has been held that the dismissal cannot be inquired into collaterally, but must be reversed in a direct proceeding therefor. Van Sant v. Atlantic City, 68 NJL 449.
*182The latter course (of'contesting the validity of the discharge) was that adopted here by Lenz. He would hardly dare not resist the legality of the discharge, lest such failuré be construed as abandonment of the office and he was within a few years of his pension. Moreover he had had no hearing at all,, in the legal sense. Consequently his action tendered us the issue of the legality of his discharge. If such issue' is decided against the employee, he has - no-further claim. If it is decided in his favor a new cause of action for the reparation of financial damages suffered arises, as we have seen, simultaneously with and dependent upon,, the decision rendered.
But there is a third possibility. The court may decline to rule upon the legality of the discharge,, merely denying reinstatement because of its alleged impracticability from the city’s point of view,12 in other words, change of conditions, laches. In such case does the employee lose his right to have, the-legality of his discharge (the issue seasonably tendered by him) passed upon by the running of the-statute of limitations?
We could rule, of course, that it does. We could simply say that it has been over 10 years since the-alleged discharge and that the statute has run. But the difficulty with this position is obvious. None of the reasons for the running of the statute is present.. The matter has been in constant litigation ever since-it happened. There is nothing “stale” about the claims asserted, nor (limitations being statutes of repose, as we have held) is the defendant in any position to assert that his repose is being disturbed *183by an, unsuspected claim arising ont of a long-settled transaction as to which all memories have faded.
I do not think it fruitful to theorize upon a purely •conceptual basis. We have a practical problem. The specific issue now facing us is whether a cause of ■action for damages accrued to plaintiff upon our final refusal to order his reinstatement to employment with the city. He asserts, and the record bears him out, that from the very outset, back in 1949, he has done everything possible to obtain a ruling from us upon the legality of his alleged discharge. He also 'points out that with our ruling in the second Lens Case that change of conditions exists, and that .such change of conditions prevented the granting of the relief prayed by him, a new cause of action arose, ■simultaneously with and dependent upon the court’s ■decision, as it did in the Kelly and City of Phoenix Cases, supra.
Our problem is one of statutory interpretation. What, in this factual situation, is the meaning of the expression “cause of action”- in the statute of limitations ? It is nowhere defined therein nor is it a term of fixed content. Actually it is no more than an aggregation of operative facts “which should afford ■ground or occasion for the court to give judicial relief.”13 This, of course, “is frankly placing the matter [where it belongs] in the hands of the judge and seems much preferable to the seeming exactness ■of many definitions which turns out to be mere delusion.”14
To me one choice is so clear that there is no other. Par from there being, in Judge Clark’s words, supra, no “ground or occasion for the court to give judicial relief,” we are under a bounden duty so to do. The spectacle of our whipsawing this litigant back and forth between certiorari and mandamus without ever *184passing on the merits is a reproach to both bench and bar. It gains nothing in Inster or in dignity that we-finally cast him out on the ground that he has brought us a stale claim. Stale it may be to us, but a wrong' that cannot even be heard, to say nothing of being-righted, has a way of burning on and on, for days without end, of outliving even its perpetrators.- I say to hear Lenz out. I want to know whether an official charged by law with the duty of conducting a full hearing can walk out of the hearing before the defendant has been heard, slam the door, and make it stick.
The judgment should be reversed and the case-remanded. Costs to appellant.
Souris, J., concurred with Smith, J.Cf. DeGuzman v. Wayne Circuit Judge, 225 Mich 606, 610, where we considered the questions brought to us in mandamus “as though presented by certiorari.” See Note, 27 Iowa L Rev 291, pointing out the overlapping in part of mandamus and certiorari, and steps taken in New York, and under the Federal rules, to avoid the “procedural pitfalls” occasioned thereby.
CL 1948, § 35.401 et seq. (Stat Ann 1952 Rev § 4.1221 et seq.).
The following comments on the defense of laches are taken from the dissenting opinion in Lenz v. Mayor of Detroit, 343 Mich 599, 608, 609.
“This, then, is defendant’s defense of laches, unreasonable delay-before starting the original mandamus action. It has been twiee rejected by the trial court. We find no error of law in such rejection.
“Moreover, my conscience troubles me about its application -as a ground for decision in this Court. In the original mandamus action the question of laches was argued, was decided by the trial eourt, was claimed as a reason and ground for appeal, and was briefed to the eourt. We held, in substance, that Lenz had mistaken his remedy, that ‘the sole remedy available’ to him was certiorari. Appellee argues that implicit in such holding, or necessarily included therein because of our failure to disturb the trial court’s holding of no laches, is our holding that Ms remedy was not lost by laches. This we reject. We did not pass on the question of laches. But the application of the doctrine of laches to the case at bar cannot be settled by any mechanical rule as to whether or not one ground of decision necessarily includes or rejects others. The question involves the application of an equitable doctrine controlled by equitable considerations, a formula whereby the conscience of the court finds expression. As to this we are clear: We do not regard it as consonant with our practice that in' a litigant’s second appearance in this Court in the same ease he be struck down in part because of a nonjurisdietional defect .existing, if at all, before we heard him the first time and concerning which, though then briefed to us, we refrained from comment, particularly in view of the fact that our ruling then on such ground would have finally disposed of his action and would have saved him his long and expensive second journey into this Court.’’
Title 6, eli 7-, § 11, Detroit city charter (Detroit Municipal Code [1954], charter section, p 206).
Municipal Corporations (3d ed).
Hughes v. City of Nashville, 137 Tenn 177 (192 SW 916).
Cabell v. Markham (CCA2,1945), 148 F2d 737, 739.
Frank, Book Review [of Corbin on Contracts], 61 Yale LJ 1108, 1113.
Iler v. Baker, 82 Mich 226.
Polish American Publishing Co. v. Wojcik, 280 Mich 466.
“The courts have been reasonably liberal in interpreting the notice provisions of the statute, so long as the municipality had in fact received adequate notice on which to base an investigation and discover the facts pertinent to the alleged negligence. If there is any question about the matter, we hereby grant leave nunc pro tunc to plaintiffs to file the complaint herein.” Martini, Jr., v. Olyphant Borough School District, 83 Pa D & C 206, 208.
“Plaintiff seeks reinstatement to an abolished position, with resultant disruption of the existing system under whieh the duties, of the abolished positions have been distributed and otherwise in-, tegrated therein, and giving rise to a serious question of rights to pension and unearned back pay for a 6-year period.” Lenz v. Mayor of Detroit, 343 Mich. 599, 601.
Clark, Code Pleading (2d ed), p 137.
Clark, Code Pleading (2d ed), p 138,