Fiedler v. Thackston.
| Decision Date | 05 October 1943 |
| Docket Number | (No. 9520),(No. 9519),(No. 9518),(No. 9521) |
| Citation | 126 W.Va. 84 |
| Court | West Virginia Supreme Court |
| Parties | Paul O. Fiedler, Mayor v. Marion E. Thackston et al.,and Oliver G. Mooring.Paul O. Fiedler, Mayor v. Marion E. Thackston et al.,and George E. Holley.Paul O. Fiedler, Mayor v. Marion E. Thackston et al.,and Ralph R. Roach.Paul O. Fiedler, Mayor v. Marion E. Thackston et al.,and Charles Wyatt Watts.Paul O. Fiedler, Mayor v. Marion E. Thackston et al.,and Arthur Mitchell.(No. 9522)Paul O. Fiedler, Mayor v. Marion E. Thackston et al.,and A. L. Oldaker.(No. 9523) |
Municipal Corporations
A probationer of a police department appointed under the provisions of Code, 8-5 (a)-6, is not entitled to a hearing under the provisions of Code, 8-5 (a)-13, concerning the reasons for not making his appointment absolute at the expiration of the six months probationary period.
Consolidated proceedings in prohibition by Paul O. Fiedler, mayor, against Marion E. Thackston and others and George E. Holley, against Marion E. Thackston and others and Ralph R. Roach, against Marion E. Thackston and others and Charles Wyatt Watts, against Marion E. Thackston and others and Arthur Mitchell, and against Marion E. Thackston and others and A. L. Oldaker.
Writs awarded.
E. L. Hogsett, for petitioner.
McDaniel Purcell and Samuel Biern, for respondents.
These six proceedings in prohibition are based upon facts so nearly identical that the cases all give rise to exactly the same questions of law so that they were therefore submitted together and need not be separately dealt with in the preparation of an opinion.
On December 1, 1942, Claude V. Swann, who was then the Mayor of the City of Huntington, vested with the general appointing power, including the police department, appointed Oliver G. Mooring on the police department of that City for the probationary term of six months under the provisions of Code, 8-5 (a)-6. Mayor Swann's term expired on the thirty-first day of December, 1942, and he was succeeded by Paul O. Fiedler. On May 29, 1943, Fiedler notified Mooring in writing that he would not receive an absolute appointment and that his services for the City of Huntington would come to an end on June 1, 1943. The last duties he performed were on the "third trick" on May 31, 1943.
On June 8, 1943, Mooring and the five others filed their separate petitions with the Police Civil Service Commission in each alleging that they had been wrongfully discharged from the police department of the City of Huntington and that their probationary appointment automatically continued in effect under the terms of Sections 6 to 13 of Article 5 (a), Chapter 8, Code, unless their conduct or capacity had proven unsatisfactory, which had not occurred.
After the petitions were filed with the Civil Service Commission and after that Commission had exercised its jurisdiction by entertaining the petitions and fixing a date for their hearing, Mayor Fiedler filed a petition here in each case asking that a writ of prohibition be granted, directed against the three members of the Commission and commanding them to proceed no further.
The position of the petitioner for the writ of prohibition is that there is no question of removal or discharge under Section 13, Article 5 (a) of Chapter 8 of the Code but that Mooring had been appointed for a probationary period of six months under Section 6 of the same Article and that the Mayor had the peremptory right, with or without cause, to either permit his services to continue or by notice in writing to bring them to a close, and that when the Mayor saw fit to terminate them Mooring could not complain because he had accepted what he knew to be an appointment for a limited term. Since their terms of employment had simply expired, he asserts, the Commission lacked jurisdiction to pass upon the question of wrongful removal.
The first position of respondents is that one or more of them was permanently employed due to the fact that, in spite of the Mayor's letter, they were allowed to continue on duty after the expiration of the six months probationary period, and thus, since Section 6 of the Act provides that "retention in the service" shall be equivalent to a final appointment, they were thereafter permanently employed. Proof was taken to show for what period each of the respondents was carried on the records of the City of Huntington as an employee of the police department, and in each case it was established that the respondent was carried for the six months probationary period only. Consequently, we think it is unnecessary to discuss this question further.
The principal question applicable to the six cases that the Civil Service Commission has entertained is whether the Mayor of Huntington in giving the notice of the termination of the probationary period provided by Section 6 of the Act, must assign a definite reason for doing so, the existence of which the probationer is entitled to try before the Commission.
Code, 8-5 (a)-6, reads in part as follows: ...
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State ex rel. City of Huntington v. Lombardo
...19 S.E.2d 581. The Court has also held that prohibition lies against the police civil service commission of that city. Fiedler v. Thackston, 126 W.Va. 84, 27 S.E.2d 278. The writ of prohibition is purely jurisdictional; it does not lie to correct mere errors; and it cannot be allowed to usu......
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Major v. DeFrench
...no specification of reasons for dismissal, nor a hearing concerning those reasons is necessary. They rely on Fiedler v. Thackston, 126 W.Va. 84, 27 S.E.2d 278 (1943), which held: "A probationer of a police department ... is not entitled to a hearing ... concerning the reasons for not making......
- Fiedler v. Thackston