Hall v. Stepp

• Decision Date: 24 April 1928
• Docket Number: ( No. 6047,( No. 6148)
• Citation: 105 W.Va. 487
• Court: West Virginia Supreme Court
• Parties: Evan Hall v. A. R. Stepp and W. F. Hatfield et al. v. J. C. Lawson et al.

105 W.Va. 487

Evan Hall

v.A. R. SteppandW. F. Hatfield et al.

v.J. C. Lawson et al.

(Nos. 6047 and 6148)

Supreme Court of Appeals of West Virginia.

Submitted April 17, 1928.

Decided April 24, 1928.

1. Mandamus Mandamus is Proper Remedy for Inducting: Rightful Claimant Into Office; Mandamus to Induct Rightful Claimant Into Office May be Maintained in His Own Name or in State's Name at His Relation. Mandamus is the proper remedy to induct a rightful claimant into an office and may be maintained in his own name as well as in the name of the state at his relation, (p. 491.) (Mandamus, 38 c. j. §§ 537, 548.)

2. Same To Successfully Maintain Mandamus Against Incumbent, to Induct Rightful Claimant Into Office, Such Claimant Must Show Clear Legal Right.

To successfully maintain such suit, however, against the incumbent in office, the claimant is bound to show a clear legal right thereto, (p. 492.)

(Mandamus, 38 c. j. § 56.)

3. Same Municipal Corporations Incumbent, Defending Right to Office, May Defeat Recovery in Mandamus by Showing Claimant's Ineligibility; Member of Department of Public Safety Held Not Eligible to Appointment as City's Chief of Police (Williamson City Charter, § 6).

An incumbent in office who in good faith challenges the validity of the proceeding by which it is asserted he was removed, and the claimant substituted, and also the eligibility of the claimant to hold the office, may defeat recovery by showing the fact of such ineligibility, (p. 192.) (Mandamus, 38 C. J. § 290.) 4. Officers -Incumbent May Interpose Injunction to Protect His Possession of Office Until Claimant Has Fully Established Legal Right.

Injunction may be interposed by an incumbent in office to protect his possession, and the peace and good order of society until such claimant has fully established his legal right to the office, (p. 493.)

(Officers, 29 Cyc. p. 1416.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Appeal from Circuit Court, Roane 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; appeal dismissed; decree in second cause reversed; cause remanded.

Ira J. Partlow, for Hall.

Goodykoontz & Slaven and Chlide Nelms, for Stepp. Goodykoontz & Slaven and Chlide Nelms, for Hatfield and others.

Lafe Chafin, for Lawson and others.

Miller, President:

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. Booien v. Pinson, 77 W. Va. 412; Trunick v. Town of Northvieiv, 80 W. Va. 9. And contrary to the contention of defendant the proceeding...