Nicholas v. Lawrence

• Decision Date: 16 November 1933
• Citation: 171 S.E. 673
• Court: Virginia Supreme Court
• Parties: NICHOLAS et al. v. LAWRENCE.

171 S.E. 673

NICHOLAS et al.

v.LAWRENCE.

Supreme Court of Appeals of Virginia.

Nov. 16, 1933.

Error to Circuit Court, Norfolk County.

Proceeding by G. Clyde Nicholas and others for removal of Julian S. Lawrence from office as Tie Breaker of the Board of Super visors of Norfolk County.Defendant's demurrer to the petition was sustained, and petitioners bring error.On motion to dismiss the writ of error.

Writ dismissed.

Argued before CAMPBELL, O. J., and HOLT, EPES, HUDGINS, GREGORY, and BROWNING, JJ.

James G. Martin, of Norfolk, for appellant.

T. D. Savage, of Norfolk, for appellee.

GREGORY, Justice.

This matter comes before this court upon a writ of error from the decision of the circuit court of Norfolk county, sustaining a demurrer to the petition filed by G. Clyde Nicholas et al., residents and taxpayers of Norfolk county, Va., praying for the removal of Julian S. Lawrence, the duly appointed tie breaker of the board of supervisors of Norfolk county, Va.The petition as amended follows:

"The undersigned, G. Clyde Nicholas, J. C. Garrett, Sr., A. V. Deal, and others, taxpayers of the County of Norfolk and residents therein, respectfully represent:

"That Julian S. Lawrence is, and for some time has been, the tie breaker of the Board of Supervisors of said County, under appointment by the Judge of said Court.That while said tie breaker, he accepted employment as attorney-at-law from said Board of Supervisors to draw trust agreements with various banks as to funds of money in which said County was interested, and charged a fee of $450.00 for his services as attorney as to said trust agreements, which fee had to be passed upon by said Board of Supervisors, and was passed upon and ordered paid by said Board of Supervisors out of moneys of said County on August 9, 1932.

"And at the meeting of said Board of August 9, 1932, before said bill for $450.00 was approved, a tie occurred in the matter of the trial justice, and said tie breaker was immediately notified of this tie and (before said bill was approved) asked time to consider the matter of said tie, and broke this tie several weeks thereafter.

"That said Julian S. Lawrence, while still said tie breaker, is now engaged in doing further work as attorney-at-law relative to contracts as to the current funds of said County in connection with the Board of Finance of said County, and his fee will have to be passed upon and approved or disapproved by said Board of Supervisors and paid out of county funds.

"That under the facts and circumstances above set forth, it is not legal nor proper that said Julian S. Lawrence should continue to hold said position of tie breaker of said Board of Supervisors, and petitioners pray that he may be forthwith removed, and a proper tie breaker appointed in his place."

To the above petition as amended the defendant filed his answer and demurrer.

The court by its order of February 11, 1933, sustained the demurrer of the defendant for the reason that "the allegations of said petition, if true, constitute no cause for the removal of Julian S. Lawrence as Tie Breaker of the Board of Supervisors of Norfolk County, Virginia. * * *"

At the outset counsel for the defendant in error moves this court to dismiss the writ of error granted in this case as having been improvidently awarded.He assigns three separate grounds, but in our view of the case it is necessary only to consider one of these grounds, and that is the one which raises the question of the jurisdiction of the court to award a writ of error in this case, because it does not appear that the petitioners are aggrieved by the judgment of the lower court.

It will be observed that the procedure in this case does not conform in any particular to that provided by section 2705(as amended byActs 1926, c. 261) and section 2706 of the Virginia Code, which is commonly known as the "Ouster Law" and which prescribes the grounds and the procedure for the removal of...