Layne v. Hayes, 10739

• Decision Date: 15 November 1955
• Docket Number: No. 10739,10739
• Citation: 90 S.E.2d 270,141 W.Va. 289
• Court: West Virginia Supreme Court
• Parties: John LAYNE, Mayor, etc. v. Paul HAYES.

Page 270

90 S.E.2d 270

141 W.Va. 289

John LAYNE, Mayor, etc. v. Paul HAYES.

No. 10739.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 25, 1955.

Decided Nov. 15, 1955.

Syllabus by the Court.

1. In a proceeding to confirm the removal for good cause of a member of the civil service commission of a municipality by its mayor, based upon Section 2, Article 6A, Chapter 88, Acts of the Legislature, Regular Session, 1949, a petition which alleges, as the sole ground of removal, the invalidity of the appointment of such member to the office, does not state a cause of action and is insufficient on demurrer.

2. The question of the validity of the appointment of a member of a civil service commission of a municipality can not be considered or determined in a proceeding to confirm his removal from that office for good cause by the mayor of such municipality under Section 2, Article 6A, Chapter 88, Acts of the Legislature, Regular Session, 1949.

Hiram G. Williamson, Williamson, for plaintiff in error.

No appearance for defendant in error.

HAYMOND, Judge.

In this statutory proceeding instituted in the Circuit Court of Mingo County on September 21, 1954, and subsequently revived in the name of John Layne, his successor in office, the original plaintiff and petitioner, P. B. Maynard, then Mayor of the City of Williamson, West Virginia, sought an order of that court confirming the removal of the defendant, Paul Hayes, as a member of the Civil Service Commission of the City of Williamson by the mayor of that city, on September 17, 1954.

The petition, which prayed for confirmation by the circuit court of the action of the petitioner P. B. Maynard in so removing the defendant, was filed in the office of the clerk of the Circuit Court of Mingo County on September 21, 1954, and a copy of the petition was served upon the defendant on the same day. The reasons for which the defendant was removed by the mayor from the office of member of the commission and the grounds relied upon for his removal were stated in the petition in these words:

'1. The appointment of Paul Hayes was made by Henry T. Hammond, who was serving as Mayor of Williamson on or about the 15th day of January, 1954, which date was subsequent to the decision of the Supreme Court of Appeals of West Virginia, rendered on or about the 27th day of December, 1953, declaring the Office of Mayor of Williamson to be vacant and directing Mr. Hayes to forthwith release said office to the Mayor.'; and

'2. The undersigned is informed and believes that Mr. Hayes had already prejudged the controversy now existing between the City Council of the City of Williamson and the suspended fire chief and assistant fire chief, Claude and Dulaney Stowers, respectively.'

On September 27, 1954, the defendant tendered and filed a plea in abatement and a demurrer to the petition.

The plea in abatement, which challenged the jurisdiction of the circuit court to hear and determine this proceeding, alleged that the petition was prematurely filed; that 'Chapter 8, Article 6A, Section 2, of the Code of West Virginia, as amended,' provides in part that 'The mayor or principal executive officer, may, at any time, remove a commissioner for good cause, which shall be stated in writing and made a part of the records of the commission'; that no such writing was filed by the petitioner P. B. Maynard; that the statute is mandatory and imposes a condition precedent to the filing of the petition; and that, for that reason, the circuit court is without jurisdiction to entertain the petition or to enter any order or decree in this proceeding.

The demurrer denied the legal sufficiency of the petition on the ground that it does not allege any cause for the removal of the defendant as a member of the commission.

By written instrument dated September 17, 1954, the petitioner P. B. Maynard notified the defendant of his removal for good cause as a member of the commission to be effective immediately. This notice, which was duly served upon the defendant on the same day, specified the same reasons and the same grounds relied upon for the removal of the defendant from the office of member of the commission that were alleged in the petition.

On September 29, 1954, the foregoing notice was filed by order of the judge entered in vacation as of September 27, 1954, and, issue having been joined upon the plea in abatement and the demurrer of the defendant to the petition, the plea in abatement and the demurrer were overruled. The proceeding was then set for hearing on October 5, 1954.

On October 2, 1954, the defendant filed his answer in which he denied the allegations contained in paragraphs 1 and 2 of the petition and demanded strict proof of each allegation. In the answer the defendant also alleged, as a defense against his removal as a member of the commission, that he had previously been appointed a member of the commission and had qualified and acted as such during an unexpired term which ended December 31, 1953; that on January 7, 1954, he was reappointed a member of the commission for a term of four years from January 1, 1954, by Henry T. Hammond, who was then the Mayor of the City of Williamson; that the decision of the Supreme Court of Appeals of West Virginia rendered December 21, 1953, was inoperative for a period of at least thirty days from that date; that the order of that court which was entered in the office of the Clerk of the Circuit Court in vacation on February 8, 1954, did not declare the office of Mayor of the City of Williamson to be vacant but merely recited that P. B. Maynard, the contestant in the proceeding in the Supreme Court of Appeals, was entitled to the office of Mayor of the City of Williamson and that the contestee, Henry T. Hammond, should forthwith vacate that office; that Henry T. Hammond continued to hold and occupy and performall official acts and duties of that office until January 18, 1954, when he relinquished it to P. B. Maynard, who on that day qualified and assumed the duties of the office of mayor; that under the statutes then in force and effect it was the mandatory duty of Henry T. Hammond, as mayor, on or before January 10, 1954, to fill the office of member of the commission to which the defendant was appointed; that when the appointment of the defendant was made by Henry T. Hammond he was, either de jure or de facto, Mayor of the City of Williamson; that the appointment of the defendant is valid and binding in all respects; that the defendant is qualified and has acted as a member of the commission continuously since the date of his appointment and has done and performed all official acts in connection with his appointment; and that the petitioner P. B. Maynard has ratified and acquiesced in the right of the defendant to the office fo member of the commission.

On October 7, 1954, the defendant moved the circuit court to strike the allegations in paragraph 1 of the petition. This motion the court overruled. The petitioner P. B. Maynard, by permission of the court and without objection, then withdrew the allegations contained in paragraph 2 of the petition because of lack of proof to support those allegations and they were stricken from the petition. The petitioner P. B. Maynard and the defendant, by their attorneys, entered into a written stipulation of the facts involved in this proceeding and the stipulation which, in substance, contained the facts alleged in paragraph 1 of the petition and in the answer of the defendant to that paragraph of the petition, was filed as part of the record. This proceeding was then heard by the circuit court upon the petition, the answer, the notice of removal, and the facts as stipulated by the parties.

By final order entered October 8, 1954, in which it is recited that the only issue involved is the legal question whether the appointment of the defendant as a member of the Civil Service Commission was a valid appointment to that office, the court held the appointment to be invalid and confirmed the action of the petitioner P. B. Maynard in removing the defendant as a member of the commission. To that order this Court granted this statutory appeal on March 21, 1955, upon the application of the defendant.

Leave to move to reverse the final order of the circuit court confirming the action of the petitioner P. B. Maynard in removing the defendant from the office of member of the commission having been granted, the questions arising upon the motion of the defendant to reverse the order of the circuit court were submitted to this Court for decision upon the record and the brief in behalf of the defendant on October 25, 1955. The successor in office to the petitioner P. B. Maynard has made no appearance and has filed no brief in this Court.

The defendant assigns as error calling for reversal of the final order of the circuit court the action of that court in overruling the demurrer of the defendant to the petition. In support of that assignment of error the defendant in effect contends that the question of the validity of the appointment of the defendant to the office of member of the commission, which was the only issue considered by the circuit court in confirming the action of the petition P. B. Maynard in removing the defendant from that office, can not be determined in this proceeding based upon Section 2, Article 6A, Chapter 88, Acts of the Legislature, Regular Session, 1949, which amends Chapter 8, Code, 1931, as amended; and that the statute upon which this proceeding is based, in authorizing the mayor or the principal executive officer of a municipal corporation to remove a member of the civil service commission of the fire department of a municipality for good cause and in vesting the circuit court of the county in which such municipality is situated with jurisdiction to entertain a petition by the mayor or the principal executive officer for confirmation of his action in removing a member of such...