Lockard v. Wiseman

• Decision Date: 01 April 1954
• Docket Number: No. 10633,10633
• Citation: 80 S.E.2d 427,139 W.Va. 306
• Court: West Virginia Supreme Court
• Parties: LOCKARD et al. v. WISEMAN et al.

Page 427

80 S.E.2d 427

139 W.Va. 306

LOCKARD et al. v. WISEMAN et al.

No. 10633.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 14, 1954.

Decided Feb. 26, 1954.

Rehearing Denied April 1, 1954.

Syllabus by the Court.

1. An injunction will be granted at the instance of an incumbent of an office to protect hsi possession and to prevent interference by a claimant to the office until the claimant has established his right to the office in a direct proceeding to determine the title to the office; but this principle does not apply to the established facts of this case.

2. A court of equity has no jurisdiction, and will not interfere by injunction, to determine questions concerning the appointment or the election of publci officers, or their right or title to public office.

3. Title to public office is not subject to collateral attack but may be attacked only in a direct proceeding for tht purpose to which the persons claiming such title are parties.

4. Under Section 13, Article 5, Chapter 53, Code, 1931, when an injunction awarded upon a pure bill for injunction is wholly dissolved the bill will be dismissed with costs unless sufficient cause be shown against such dismissal.

Maxwell & Young, Haymond Maxwell, Sr., Roger J. Morgan, Guy H. Burnside, Clarksburg, for appellants.

John S. Stump, Jr., H. Laban White, Jr., Clarksburg, for appellees.

HAYMOND, Judge.

In this suit in equity instituted in the Circuit Court of Harrison County on May 7, 1953, the plaintiffs A. Page Lockard and Lloyd D. Griffin seek to enjoin the defendants J. Frank Wiseman and Loretta G. McCracken from interfering with the plaintiffs in the discharge of their duties respectively as manager and clerk of the City of Clarksburg. The plaintiffs assert that by virtue of the action of five Republican members of the council of the city at its meeting on May 4, 1953, they were duly appointed to those respective offices and that, the term of the defendants as incumbents of those offices having expired, the plaintiffs are respectively entitled to occupy and discharge the duties of those offices without interference by the defendants. Pursuant to written notice returnable May 7, 1953, the plaintiffs and the defendants in person and by counsel appeared before the Circuit Court of Harrison County and the hearing of matters arising upon the motion of the plaintiffs for a temporary injunction was continued until May 9, 1953, at which time the regular judge of the court, deeming himself disqualified to hear the case, continued it until such time as the services of another circuit judge could be obtained to hear and determine the cause. On May 14, 1953, the parties in person and by counsel again appeared, a visiting circuit judge sitting in lieu of the regular judge of the court, and, at that time, the plaintiffs filed their verified bill of complaint and certain exhibits which include affidavits, the defendants filed their written demurrer, their verified answer and certain affidavits, and, upon the bill of complaint, the exhibits and the affidavits, the plaintiffs moved the court for a temporary injunction to restrain the defendants from interfering with the plaintiffs in the discharge of their duties as manager and clerk of the city. The circuit court denied the motion of the plaintiffs and, upon the bill of complaint and the exhibits and the affidavits filed with it, this Court on May 16, 1953, granted a temporary injunction, returnable before the Circuit Court of Harrison County.

On June 2, 1953, the plaintiffs filed their verified amended and supplemental bill of complaint and certain exhibits, the defendants filed their demurrer in writing and their verified answer to the amended and supplemental bill of complaint, and the plaintiffs filed their demurrer in writing to certain portions of the answer and their general replication to that pleading. The defendants also moved the court to hear the testimony to be adduced by the plaintiffs to support the temporary injunction and the testimony to be adduced by the defendants in opposition to the injunction and in support of any motion of the defendants to dissolve it. The court denied this motion to hear the testimony in behalf of the respective parties in open court and made no specific ruling upon any of the demurrers. The evidence introduced in behalf of the respective parties consisted of depositions and numerous exhibits filed with the depositions. The respective parties stipulated in writing that the charter of the City of Clarksburg is a special charter granted by certain designated acts of the Legislature of West Virginia, that it is correctly and completely set forth in the Code of the City of Clarksburg, and that the applicable provisions are Sections 7, 9, 11, and 12 of the charter.

On August 28, 1953, at a special term the court heard the motion of the defendants to dissolve the temporary injunction upon the pleadings and the depositions filed by the respective parties and the former decrees in the case and, by decree entered on that date, dissolved the injunction previously awarded by this Court. From that decree this Court granted this appeal upon the petition of the plaintiffs. Leave to move to affirm the decree dissolving that injunction having been granted, the questions arising upon the motion of the defendants to dissolve and to affirm the decree of the circuit court were submitted to this Court for decision upon the oral arguments and the briefs in behalf of the respective parties on January 13, 1953.

The bill of complaint, upon which the preliminary injunction issued by this Court was granted, alleges that on May 4, 1953, at the first regular meeting of the council after the municipal election of April 21, 1953, the plaintiff Lockard was duly appointed city manager and the plaintiff Griffin was duly appointed city clerk by the vote of a majority of the duly elected and qualified councilmen of the city; that after the appointments of the plaintiffs other appointments of officials were made by the council at that meeting; that after the adjournment of the meeting each of the plaintiffs undertook to enter upon the discharge of the duties required of him by the city charter; that the defendants refused to permit the plaintiffs to have access to their respective offices; that the defendant Wiseman caused the door to the room in which the office of city manager was located in the city building to be locked and kept locked for the purpose of excluding from it the plaintiff Lockard as city manager; that the defendant McCracken refused to permit the plaintiff Griffin, as the duly appointed clerk, to have access to the books and the papers in the office of the city clerk and caused some of the books and papers of the city clerk to be locked in an iron safe the combination of which was unknown to the plaintiff Griffin; that the defendants Wiseman and McCracken have pursued a course of conduct which interferes with and hinders the plaintiffs in the discharge of their duties and have given orders to certain persons not to recognize the plaintiff Lockard as city manager or the plaintiff Griffin as city clerk; that the foregoing conduct of the defendants Wiseman and McCracken seriously interferes with the orderly discharge of the official business of the city; that it is necessary that the plaintiffs have the protection of a court of equity to permit them to proceed with the regular discharge of the duties of the offices to which they have been appointed by a majority of the nine members of the council; that the plaintiffs have no adequate and sufficient remedy at law; that they seek relief in equity for the purpose of avoiding a multiplicity of suits to determine separately the status of the several appointments of the plaintiffs and of other officials appointed by the council on May 4, 1953; and that irreparable injury will result to the City of Clarksburg and to the plaintiffs, as individuals and as public officials, unless the foregoing conduct of the defendants is restrained by a court of equity.

An exhibit filed with and as a part of the bill of complaint, which the plaintiffs assert constitutes the minutes of the meeting of May 4, 1953, recites that until eleven five o'clock that evening the defendant Wiseman as the presiding officer of the meeting had recognized one hundred forty seven consecutive motions to adjourn; that councilmen Freeland, Policano, Mandeville, Harbert and Lyon had made numerous motions to appoint Lockard as city manager but that councilmen Scott, Stalnaker, Morrison and Reider continually moved to adjourn; that the presiding officer in each instance recognized the motion to adjourn and put that question to vote; that no vote was taken and no debate occurred on the motion to appoint Lockard between the motions for adjournment; that the motions to adjourn, which were defeated, continued until approximately eleven forty five o'clock; that at that time councilmen Freeland, Policano, Harbert, Mandeville and Lyon, constituting a majority 'got up and stood to the side within the Council Chambers where they could talk and not be interrupted'; that councilman Policano was nominated and selected as temporary chairman; that on that question councilmen Freeland, Policano, Harbert, Mandeville and Lyon voted in the affirmative and councilmen Scott, Stalnaker, Morrison and Reider did not vote; that a motion was then made and seconded that 'the chair be declared vacant'; that on that motion Scott, Stalnaker, Morrison and Reider did not vote, that the motion was adopted by the votes of Freeland, Policano, Harbert, Mandeville and Lyon and the temporary chairman 'declared the chair vacant'; that successive motions were then made, seconded and adopted that Lockard be appointed city manager and that Griffin be appointed city clerk; that Freeland, Policano, Harbert, Mandeville and Lyon voted for each motion and Scott, Stalnaker, Morrison and Reider did not vote;...