(dissenting). Standing as before,* upon conviction that the “labyrinth of decisions” to which Justice O’Hara refers has been manufactured by the denied yet perfectly visible process of ele novo consideration and determination by our Court of unemployment benefit cases, I vote to affirm the appeal board’s decision and the circuit court’s affirming decision.
When the circuit court issues its constitutionally authorized writ of certiorari to the appeal board, that court is not entitled to raise and decide any decisive question of law the petition for writ and the petitioner himself has not brought up for review. Here the circuit judge raised and decided the legal *220question several of my Brethren have seized upon for reversal (see quotation below of Judge Baum’s opinion). If that question had been raised before the appeal board, and had it been raised in the petition for certiorari, I would opine upon it. That however was not done. I therefore abstain so far as that question is concerned.
Some day this Court will have to look in the mirror of its unemployment compensation decisions, thus to face the fact that too many of such decisions have been made of jury-like view that the claimants should or should not have compensation as prayed. Now let us read, from the record, the way this “misconduct connected with his work” issue came up in circuit. Judge Baum’s opinion proceeds.
“There is a third possible issue here, although it has not been presented nor urged in argument. And this third possible issue is whether or not this man is disqualified under that portion of section 29 of the act which provides for disqualification where ‘the employee has been discharged for misconduct connected with his work.’ * * * This is a possible issue because in the course of the administrative proceeding below it was at times urged and at 1 point accepted by those having the power of- administrative decision. However, neither the referee nor the appeal board found that the claimant was disqualified for misconduct in connection with his work and it is not urged here by any of the litigants that there is properly such a disqualification in this case.
“I’ll deal with this third issue only because it was involved in this proceeding at 1 point and because some persons might believe that it is necessary to dispose of this issue for a complete disposition of all the issues in the case.”
The appeal board’s actual decision, decisively summarized, reads as follows;
*221“It is held that the claimant was separated from employment under nondisqualifying circumstances and no disqualification is imposed under either section 29(1) (a) (1) or (2) of the act.
“It is further held that the claimant was available for work of a character which he is qualified to perform by past experience or training and of a character generally similar to '--■work.*for which he has previously received wages and no ineligibility is imposed within the meaning of sqction 28(c) of the act.”
The proof assembled before the board justified, but of course did not dictate, its- quoted finding that this claimant was separated from his employment “under nondisqualifying circumstances.” At such point the judicial function comes to exhaustion and affirmance of the scrutinized administrative decision is in order. As said by the circuit judge below:
“The law enjoins me to leave undisturbed any finding of the appeal board, if there is any evidence in the record at all to support such a finding, and I suppose there is evidence to support the board’s finding in favor of eligibility. The conclusions of law arrived at by the board likewise seem to be in order. For these reasons an order should enter affirming the decision of the board.”
For elaboration of the rule, to which Judge Baum and I both allude, see the Miller Case, supra. I adhere to Miller in full view of the nonauthoritative disjointures which appear in Wickey v. Employment Security Commission, 369 Mich 487, and in Booker and Dynamic, both supra.
Adams, J., took no part in the decision of this case.Miller v. F. W. Woolworth Co., 359 Mich 342, 349-355; Bell v. Employment Security Commission, 359 Mich 649, 653, 654; Lyons v. Employment Security Commission, 363 Mich 201, 228-230; Booker v. Employment Security Commission, 369 Mich 547-551 (opinion of Justice Adams adopted by the writer); Dynamic Manfrs. v. Employment Security Commission, 369 Mich 556-560.