Hall v. Stepp

• Decision Date: 24 April 1928
• Docket Number: (Nos. 6047 and 6148.)
• Citation: 143 S.E. 153
• Court: West Virginia Supreme Court
• Parties: HALL . v. STEPP. HATFIELD et al. v. LAWSON et al.

143 S.E. 153

HALL .

v.STEPP.

HATFIELD et al.

v.LAWSON et al.

(Nos. 6047 and 6148.)

Supreme Court of Appeals of West Virginia.

April 24, 1928.

(Syllabus by the Court.)

Appeal from Circuit Court, Mingo County.

Proceeding by Evan Hall for mandamus to be directed to A. R. Stepp acting as Chief of Police of the City of Williamson; and suit by W. F. Hatfield and others against J. C. Lawson and others. Judgment in the first cause for plaintiff, and defendant brings error. Plaintiffs in second cause appeal from an adverse decree. Causes consolidated on appeal. Judgment in the first cause reversed, and appeal dismissed. Decree in second cause reversed, and cause remanded.

Ira J. Partlow, of Williamson, for Hall.

Goodykoontz & Slaven and Chlide Nelms, all of Williamson, for Stepp.

Goodykoontz & Slaven and Chlide Nelms, all of Williamson, for Hatfield and others.

Lafe Chafln, of Williamson, for Lawson and others.

MILLER, P. The first case is here upon a writ of error and supersedeas awarded on the petition of defendant to the judgment of the circuit court of Mingo county pronounced on June 24, 1927, wherein that court overruled defendant's motion to quash the alternative writ of mandamus, and notwithstanding his return in writing and the demurrer of the plaintiff thereto, overruled, and issue thereon, and motion of the plaintiff for the peremptory writ of mandamus prayed for, notwithstanding said answer and return, overruled, and after the hearing on the issues joined on the pleadings and evidence adduced, adjudged, ordered and directed that the said Stepp, hitherto acting or attempting to act as chief of police of the city of Williamson, be and he was thereby commanded in the name of the state of West Virginia, at once to cease usurpation of the powers and functions of said office of chief of police of said city, and at once to turn over to the said Evan Hall all documents, warrants and papers, keys of the city jail, the possession of the room provided for the chief of police in the city hall of said city, and all other matters and property pertaining to said office and under his control or in his possession, and to at once cease usurpation of, the office of chief of police of said city.

The defendant Stepp holding by right of prior appointment, by demurrer, answer and motions interposed to the writ, challenges the validity of the proceedings of the city commission on June 10, 1927, by which the commissioners undertook, summarily and without notice to them, to remove from office the said Stepp as chief of police and all patrolmen then in office and to substitute Hall as chief of police in place of Stepp, and other peace officers in place of the then incumbents; and also challenged the qualifications of said Hall not averred in the writ.

That mandamus is the proper remedy to induct the rightful claimant into an office is well settled. Booten v. Pinson, 77 W. Va. 412, 89 S. E. 985, L. R. A. 1917A, 1244; Trunick v. Town of Northview, 80 W. Va. 9, 91 S. E. 1081. And contrary to the contention of defendant the proceeding may be in the name of the individual as well as in the name of the state at the relation of the claimant. Fisher v. City of Charleston, 17 W. Va. 595; State ex rel Matheny v. County Court of Wyoming County et al., 47 W. Va. 672, 35 S. E. 959.

But it is said that the attempt to remove Stepp summarily and without notice was a violation of section 6, article 4, of the Constitution. The answer of plaintiff's counsel to this proposition is that where, as here, the term of office is not prescribed by sta...