Ebbert v. Tucker
| Decision Date | 27 May 1941 |
| Docket Number | C. C. No. 640. |
| Citation | 15 S.E.2d 583,123 W.Va. 385 |
| Parties | EBBERT v. TUCKER et al. |
| Court | West Virginia Supreme Court |
Rehearing Denied July 30, 1941.
Syllabus by the Court.
Handlan, Garden & Matthews and Frank A O'Brien, all of Wheeling, for plaintiff.
Charles P. Mead, of Wheeling, for defendant.
This certificate involves the correctness of a ruling of the Circuit Court of Ohio County in overruling a demurrer to plaintiff's bill of complaint (designated as a "petition for writ of injunction") in the equity suit of George Ebbert v. W. B. Tucker, Charles J. Schuck Harry T. Clouse, William Armbrust, Dr. Frank A. Carroll individually, and as purported members of the Civil Service Commission of the City of Wheeling, and Walter C. Smith, City Manager of the City of Wheeling.
The bill of complaint alleges, in part, that the defendants, except Smith, hold themselves out as members of the Civil Service Commission of the City of Wheeling, appointed by the Council thereof under the provisions of an ordinance passed on October 10, 1939, pursuant to the charter of the City of Wheeling, enacted March 5, 1935 (Chapter 141, Acts West Virginia Legislature, 1935), which, by its own provisions, upon ratification, became effective July 1, 1935. It sets forth various Acts of the West Virginia Legislature, providing for the creation and maintenance of civil service commissions relating to municipal firemen and policemen, as well as said charter; it avers that the defendants have proceeded to act under said ordinance by causing the publication of a notice in a public place for "Promotion Examination Traffic Sergeant Police Department" to be held on February 14, 1940, and by certain alleged action in regard to the selection of applicants for positions in the city fire department; and it avers that the ordinance, in so far as it provides for the selection and promotion of policemen and firemen, is invalid as to firemen as being in contravention of Chapter 60, Acts of the West Virginia Legislature, 1933, as amended by Chapter 67, Acts of the West Virginia Legislature, 1935, and likewise as to policemen under Chapter 57, Acts West Virginia Legislature, 1937.
The bill prays that the holding of a promotion examination for the position of traffic sergeant in the police department be enjoined and restrained by preliminary injunction; that the ordinance passed on October 10, 1939, be decreed null and void; that the defendants be enjoined, inhibited and restrained by preliminary injunction from taking any further action of any nature, character or description under or by virtue of said ordinance; and that upon final hearing the preliminary injunction be made permanent.
On April 5, 1940, the circuit court granted a temporary injunction, enjoining defendants from: (1) holding the promotion examination for position of traffic sergeant in the police department; (2) taking any further action under the ordinance of October 10, 1939, so far only as it affects the police department; and (3) taking any further action under said ordinance so far only as it affects the fire department, and to the extent only that the ordinance is inconsistent with Chapter 60, Acts West Virginia Legislature, 1933, as amended.
As suggested by the trial court in a written opinion made a part of the record, the question for decision is the validity of the ordinance of October 10, 1939. This ordinance is entitled "An ordinance amending an ordinance numbered 622 entitled 'An ordinance creating and defining a civil service commission and providing for, creating and defining a body of rules and regulations to be known hereafter as "The civil service code of the City of Wheeling" providing for the operation of same and repealing all civil service ordinances or parts thereof in conflict herewith', adopted February 1, 1937, and amended by ordinance numbered 657, adopted November 1, 1937"; and provides for the creation of a single civil service commission applicable to the fire and police departments and employees in the administrative services of the city, which shall consist of five commissioners, two of whom shall be appointed by the council; one by the paid employees in the classified services of the city; one by the Ohio Valley Trades and Labor Assembly; and one by the Wheeling Chamber of Commerce.
Whether the ordinance is valid as affecting the police and fire departments of the City of Wheeling is dependent upon the validity and effect of four West Virginia statutes:
(1) Chapter 60, Acts West Virginia Legislature, 1933, providing for the creation and maintenance of a civil service commission to govern the appointment and promotion of employees of paid fire departments in cities and municipalities, which commission shall consist of three commissioners, one of whom is to be appointed by the mayor or chief executive officer of the city, one by the local trades board, or in case no such board exists in said city, then by the paid international association of fire fighters, and the third by the local chamber of commerce; which statute, in section 20 thereof, expressly excludes the City of Wheeling from its operation.
(2) Chapter 67, Acts West Virginia Legislature, 1935, amending section 20 of the last-mentioned statute by the omission of the name "Wheeling" therefrom as one of the excepted cities.
(3) Chapter 141, Acts West Virginia Legislature, 1935, providing a new charter for the City of Wheeling, which charter provides, among other things, for the adoption by city council of a civil service ordinance.
(4) Chapter 57, Acts West Virginia Legislature, 1937, providing for the creation and maintenance of a civil service commission to regulate and determine all appointments to and promotions in all paid police departments in each city and municipality of five thousand population or more, which shall consist of three commissioners, one of whom shall be appointed by the governor, one by the local fraternal order of police, and a third by the local chamber of commerce, or if there be none, by a business men's association.
The ordinance, so far as it concerns civil service in the police department, involves only the consideration of the charter of the City of Wheeling, and the 1937 act providing for civil service relating to paid police departments. The charter became the governing law of said city on July 1, 1935. The general civil service statute relating to police departments became effective June 1, 1937. So we are met at the threshhold with the question whether the later statute repealed the earlier one. Sections 52 and 53 are the pertinent sections of the charter providing for civil service applicable to the fire and police departments and employees in the administrative services of the city. They read:
The legislature evidently intended by the enactment of the 1937 police civil service act to provide for a complete and all-inclusive system for the appointment, promotion reduction, removal and reinstatement of all officers (except the chief of police), policemen or other employees of all paid police departments in all cities and municipalities of five thousand or more. In fact, in section 20, it is expressly so stated. We have attempted in vain to reconcile this statute with the city charter, and have concluded that, so far as they affect paid police departments, they are irreconcilable, and that the general statute was intended as a substitute, so far as civil service applicable to paid police departments of cities with a population of five thousand or more is concerned, for the provisions of the charter, either of which resulted in repeal of the pertinent charter provisions by implication. State v. Jackson, 120 W.Va. 521, 199 S.E. 876, and cases cited on page 526 of the West Virginia Report and page 878 of the South Eastern Reporter; Beck v. Cox, 77 W.Va. 442, 87...
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