Bellamy v. Gates
| Decision Date | 26 November 1973 |
| Citation | 214 Va. 314,200 S.E.2d 533 |
| Parties | John F. BELLAMY, Jr. v. Ernest P. GATES and Edward P. Gill. |
| Court | Virginia Supreme Court |
Ivy P. Blue, Jr., Hanover, for appellant.
Frederick T. Gray, Richmond (Leonard A. Paris, Richmond, Oliver D. Rudy, Morris E. Mason, Chesterfield, on brief), for appellees.
Before SNEAD, C.J. and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.
John F. Bellamy, Jr. alleges that because of duress exercised on him by Ernest P. Gates, Judge of the Circuit Court of Chesterfield County, and Edward P. Gill, Chief of Police of the county, he resigned from the county's police force. He sought (1) to enjoin and restrain Gates and Gill from 'refusing to reinstate him on the force,' (2) to obtain an order directing them to reinstate him, and (3) to recover an award of both compensatory and exemplary damages. A demurrer filed by Gates and Gill to Bellamy's bill of complaint was sustained, and we review this action of the lower court.
The governing body of Chesterfield County established its police force in accordance with the provisions of Chapter 21 of the Acts of the 1944 General Assembly. Sections 3 and 4 of the Chapter are pertinent and provide as follows:
Bellamy was appointed to the police force on November 15, 1965 and remained a member until January 5, 1971 when he resigned. He is a member of the United Klans of America, Inc. and alleges that prior to his resignation he was advised by Gill that as an alternative to being discharged from the police force he could (1) resign from the Klan, renounce publicly the organization and its members and cease his association with them, or (2) remain a member of the Klan and become an informer for the Federal Bureau of Investigation on Klan activities and its members, or (3) he could resign from the police force.
The issue is whether or not plaintiff's bill and amended bill of complaint state a good cause of action. The effect of the demurrer is to admit as true all allegations of material fact which are well pleaded. The demurrer is filed to test whether the complaint states a cause of action upon which relief can be had if all of its allegations are taken as admitted. Smith v. Wolsiefer, 119 Va. 247, 89 S.E. 115 (1916). In essence Bellamy alleges that he became the victim of a conspiracy participated in by agents of the F.B.I., the chief of police and the circuit judge, and that solely because of his membership in the Klan he was pressured by Gates and Gill into resigning from the police force.
Assuming, as we must, that Gill, acting on orders of Judge Gates, relayed to Bellamy the alternatives he alleges, this does not of itself state a case of liability on the part of Gill. Such action on Gill's part would not constitute the performance by him of a ministerial duty, and there is no liability on him as a public official for damages resulting from his performance of a discretionary function. See Berry v. Hamman, 203 Va. 596, 125 S.E.2d 851 (1962), and Kirstein v. Rector and Visitors of the University of Virginia, 309 F.Supp. 184 (E.D.Va.1970).
Further, the other relief which Bellamy seeks can not be afforded him by the chief of police. Gill did not appoint and could not reinstate Bellamy on the police force. Neither could he modify or overrule the decision of the circuit judge. Gill lacks the statutory authrity to appoint or discharge police officers.
Injunction does not lie to require the performance of a judicial function, and Bellamy could not have secured his reinstatement on the police force by an injunctive order directed to either Gates or Gill.
It is also a well established principle of the law that judicial officers, acting...
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