Johnson v. Barham

• Citation: 38 S.E. 136,99 Va. 305
• Court: Supreme Court of Virginia
• Decision Date: 14 March 1901
• Parties: JOHNSON et al. v. BARHAM, Judge.

38 S.E. 136

99 Va. 305

JOHNSON et al.

v.BARHAM, Judge.

Supreme Court of Appeals of Virginia.

March 14, 1901.

STATUTES — CONSTRUCTION — COURTS — CORPORATION COURT OF NEWPORT NEWS—JURISDICTION—APPEAL, FROM POLICE BOARD-JURISDICTION OF CHANCERY COURT.

1. Acts 1895-96, p. 86, prescribing regulations for the police department of the city of Newport News, was amended by Act Jan. 17, 1900, by adding to the provisions in regard to the police board "that in case of the removal of the chief of police he shall have the right to appeal * * * to the corporation of the said city." In the printed copies of the amendment the word "court" appeared after the word "corporation, " making the appeal to the "corporation court"; but such word was omitted from the engrossed bill of the legislature. Held that, as the intention to have the word "court" put in the act was not clear from the context, and as the act was not unintelligible by such omission, the word would not be supplied by the court in construing the act, and hence no jurisdiction was conferred on the corporation court of said city to entertain an appeal from the order of the board of police commissioners removing the chief of police from office.

2. A court of chancery has no jurisdiction to determine the title of an officer to his office, where the same has been determined by competent authority, from whose judgment there can be no appeal.

Application for writ of prohibition by Thomas A. Johnson and others against T. J. Barham, judge of the corporation court of the city of Newport News, to prevent the said court from sitting as a court of chancery in a case wherein the petitioners are defendants. Application granted.

W. R. Meredith and W. H. Sands, for petitioners.

O. D. Batchelor, for respondent.

KEITH, P. By the sixty-second section of the charter of the city of Newport News, it is provided that the police department of that city shall be under the control and management of a board of police commissioners, which shall consist of three discreet citizens, appointed by the mayor, and confirmed by the council. This board was authorized to "establish, promulgate, and enforce proper rules, regulations, and orders for the government and discipline of said police force; and the said board shall have the power to compel the production of papers and the attendance of witnesses by the issue of the proper process therefor: provided, that such rules, regulations, and orders shall not in any way conflict with any ordinance of the city council or any of the provisions of this act, or the constitution and laws of this state or of the United States; nor shall the said board make any expenditure or incur any expense without consent of the city council." Acts 1895-96, p. 86. Thus the section read until January 17, 1900, when it was amended by interpolating after the words "United States" the following: "And provided further that in case of the removal of the chief of police he shall have the right to appeal from the decision of the board to the corporation of the said city." In the act as printed the word "court" follows "corporation, " so that the printed act provides "for the right of appeal from the decision of the board to the corporation court of the said city"; but in the enrolled bill, as appears from a certificate of the keeper of the rolls of Virginia, the word "court" does not appear. The board, in the exercise of the power conferred upon it, preferred charges against the chief of police, S. J. Harwood, summoned him to appear before it, and, after a full hearing, entered an order removing him, and appointed Thomas A. Johnson in his stead. Harwood noted an appeal to the corporation court of the city of Newport News, and moved that court to docket his appeal, but that motion appears not to have been as yet acted upon, and is still pending in that court. Harwood also filed a bill in equity in the corporation court, in which he sets out the proceedings before the board of police commissioners; charges that his removal was the result of a predetermined purpose on the part of the mayor, in which the board co-operated. The bill charges many violations of duty upon the part of the mayor and each of the board of commissioners; that they connived at the illegal sale of intoxicating liquors; that they appointed special police officers over the protest of the chief of police; that these officers, when discharged by him in pursuance of his duty, were reappointed, though notoriously unfit for their positions; that by their rules and regulations they encouraged the commissionof crime, and in every way obstructed the arrest and conviction of criminals; that the mayor, A. A. Moss, In November, 1900, preferred false charges against him before the board, well knowing that he could not maintain the same, and a pretended trial was had on the charges so preferred, which ended on the 18th of December, and the "said board, desiring time to consider of their judgment, declared and promised complainant that judgment would not be rendered until Saturday, the...