Cowie v. Roberts, 15928

Decision Date26 January 1984
Docket NumberNo. 15928,15928
Citation173 W.Va. 64,312 S.E.2d 35
PartiesLawrence Glen COWIE v. Virginia ROBERTS, Etc.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. "The general rule is that where an administrative remedy is provided by statute or by rules and regulations having the force and effect of law, relief must be sought from the administrative body, and such remedy must be exhausted before the courts will act." Syl. pt. 1, Daurelle v. Traders Federal Savings & Loan Association, 143 W.Va. 674, 104 S.E.2d 320 (1958).

2. "Prohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari." Syl. pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953).

John H. Reed, III, Hurricane, for appellant.

Chauncey H. Browning, Atty. Gen., Michael L. Harper, Asst. Atty. Gen., Charleston, for appellee.

McGRAW, Justice:

The appellant, Lawrence Glen Cowie, appeals from the denial of a petition for a writ of prohibition in the Circuit Court of Kanawha County. The appellant sought to prohibit the appellee, Commissioner of the West Virginia Department of Motor Vehicles, from suspending his license to operate an automobile in West Virginia for a period of ten years. Although the court below held that prohibition was the proper avenue of relief, it found that both the suspension of the appellant's license and the enhancement of that suspension were lawful. Despite the advancement of several assignments of error by the appellant to reverse the circuit court's decision regarding his suspension, we agree with the appellee that prohibition is an improper remedy in this case, and therefore we reverse the circuit court's decision to the contrary.

On January 18, 1982, the appellant was arrested for driving under the influence of alcohol, pursuant to West Virginia Code § 17C-5-2(d) (1983 Supp.). 1 The arresting officer submitted an affidavit to the Department of Motor Vehicles on the following day, pursuant to West Virginia Code § 17C-5A-1(b) (1983 Supp.), 2 containing the particulars of the appellant's arrest. After a review of its records by the Department of Motor Vehicles revealed that the appellant had been convicted on August 11, 1980, of drunk driving in violation of a South Charleston municipal ordinance, an order was issued on February 3, 1982, suspending the appellant's license for a period of ten years, pursuant to West Virginia Code § 17C-5A-2(c)(4) (1983 Supp.). 3

Under West Virginia Code § 17C-5A-2(a) (1983 Supp.), 4 the notice of suspension received by the appellant provided: "UPON your written request the Commissioner of Motor Vehicles will allow you an opportunity to an administrative hearing. Such written request must be filed with the Commissioner in person or by REGISTERED or CERTIFIED MAIL, return receipt requested, within ten (10) days after receipt of this NOTICE." The suspension notice also informed the appellant that: "IF YOU REQUEST A HEARING within (10) days after receipt of this NOTICE, you do not have to return your West Virginia license to this office until the termination of any hearing which results in an unfavorable decision to you." 5 Finally, the suspension notice provided that: "IF YOU DO NOT REQUEST A HEARING within ten (10) days after receipt of this NOTICE, any West Virginia license issued to you must be returned to this office within the ten (10) day period." It is apparent from the record that the appellant did not request a hearing, and that his license was received by the Department of Motor Vehicles on February 18, 1980.

On October 4, 1982, the appellant, through counsel, filed a petition for a writ of prohibition in the Circuit Court of Kanawha County, seeking to prohibit enforcement of the suspension order. Thereafter, the court issued a rule to show cause why the relief requested in the appellant's petition should not be granted against the appellee. Following a subsequent hearing on the appellant's petition, the court held that although prohibition was the proper form of action, the ten year suspension was lawful, and therefore it denied the appellant's request for a writ of prohibition. While the appellant raises several assignments of error in his appeal from the circuit court's denial, the appellee contends here, as she did below, that prohibition does not lie in this case.

In Syllabus Point 1 of Daurelle v. Traders Federal Savings & Loan Association, 143 W.Va. 674, 104 S.E.2d 320 (1958), this Court stated, "The general rule is that where an administrative remedy is provided by statute or by rules and regulations having the force and effect of law, relief must be sought from the administrative body, and such remedy must be exhausted before the courts will act." The exhaustion of administrative remedies is a well-established rule in this jurisdiction. See Syl. pt. 3, State ex rel. Arnold v. Egnor, 275 S.E.2d 15 (W.Va.1981); Syl. pt. 3, State ex rel. Gooden v. Bonar, 155 W.Va. 202, 183 S.E.2d 697 (W.Va.1971); Syl. pt. 2, Bank of Wheeling v. Morris Plan Bank & Trust Co., 155 W.Va. 245, 183 S.E.2d 692 (1971); Syl., Capitol Business Equipment, Inc. v. Gates, 155 W.Va. 260, 184 S.E.2d 125 (1971); Syl. pt. 1, State ex rel. Burchett v. Taylor, 150 W.Va. 702, 149 S.E.2d 234 (1966). Not only did the appellant in this case fail to exhaust his administrative remedies, he failed to even pursue them. Instead, the appellant waited eight months before petitioning for a writ of prohibition to prevent enforcement of the suspension order.

It is clear that prohibition lies to restrain both judicial and quasi-judicial administrative bodies. For example, in Syllabus Point 2 of Brazie v. Fayette County Commissioners, 25 W.Va. 213 (1884), this Court stated, "The writ of prohibition lies from a superior court not only to inferior judicial tribunals, but to inferior ministerial tribunals possessing incidently judicial powers and known as quasi judicial tribunals, and also in extreme cases to purely ministerial bodies when they usurp and attempt to exercise judicial functions." See also Syl. pt. 1, State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 143 S.E.2d 535 (1965); Syl. pt. 2, State ex rel. Collier v. Mingo County Court, 97 W.Va. 615, 125 S.E. 576 (1924); Syl. pt. 2, State ex rel. Noce v. Blankenship, 93 W.Va. 273, 116 S.E. 524 (1923); Syl. pt. 1, Fleming v. Commissioners, 31 W.Va. 608, 8 S.E. 267 (1888). We do not agree with the appellee in her assertion that license suspension is a purely ministerial act and therefore not subject to prohibition. In fact, the legislature has mandated under West Virginia Code § 71C-5A-2, that the commissioner conduct a hearing prior to suspension upon the written request of the person to be affected. The act of license suspension is quasi-judicial and therefore subject to prohibition.

The key issue in this case is the effect of the appellant's failure to pursue administrative remedies provided under the statutes involved. In State ex rel. Maynard v. Bronson, 277 S.E.2d 718, 722 (W.Va.1981), this Court stated the general rule that, "prohibition cannot be sustained for a writ of error or appeal unless a writ of error or appeal would be an inadequate remedy. Handley v. Cook, 252 S.E.2d 147, 148 (W.Va.1979); Woodall v. Laurita, 156 W.Va. 707, 712, 195 S.E.2d 717, 720 (1973); State ex rel. Huntington v. Lombardo, 149 W.Va. 671, 679, 143 S.E.2d 535, 541 (1965); State ex rel. Gordon Memorial Hospital v. West Virginia State Board of Examiners for Registered Nurses, 136 W.Va. 88, 66 S.E.2d 1, 9 (1951)." Similarly, in Syllabus Point 1 of Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953), this Court stated, "Prohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari." See also Syl. pt. 1, Johnston v. Hunter, 50 W.Va. 52, 40 S.E. 448 (1901).

The existence of an administrative appeal is as important in determining the appropriateness of extraordinary remedies, such as prohibition and mandamus, as is the existence of an alternate avenue of judicial relief. For example, in McGrady v. Callaghan, 244 S.E.2d 793, 797 (W.Va.1978), in the context of a mandamus action against the Director of the Department of Natural Resources, this Court held that mandamus was not available where the petitioners involved failed to pursue the administrative remedies afforded them. 6

The appellant in this case was clearly informed of his right to request a hearing within ten days after receipt of the suspension notice. He was also informed that this request would allow him to retain his license until an unfavorable decision was rendered against him...

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