Parkins v. Londeree

Decision Date20 March 1962
Docket NumberNo. 12151,12151
Citation124 S.E.2d 471,146 W.Va. 1051
CourtWest Virginia Supreme Court
PartiesRobert W. PARKINS v. Joseph W. LONDEREE, Mayor, etc., et al.

Syllabus by the Court

1. In the construction of a legislative enactment, the intention of the legislature is to be determined, not from any single part, provision, section, sentence, phrase or word, but rather from a general consideration of the act or statute in its entirety.

2. In the construction of statutes, where general words follow the enumeration of particular classes of persons or things, the general words, under the rule of construction known as ejusdem generis, will be construed as applicable only to persons or things of the same general nature or class as those enumerated, unless an intention to the contrary is clearly shown.

3. Chapter 57, Acts of the Legislature, Regular Session, 1937, appearing in Code 1931, as amended, as Article 5A of Chapter 8, embodying civil servide provisions applicable to paid police departments of municipalities, when properly construed, applies only to paid policemen and police officers of such municipalities.

E. Franklin Pauley, Charleston, for relator.

George W. Stokes, Charleston, for respondents.

CALHOUN, President.

In this original proceeding in mandamus, Robert W. Parkins, who will be referred to herein as the petitioner, seeks to require the respondents, Joseph W. Londeree, Mayor, Cecil Washburn, Recorder, Cleo Johnson, Treasurer, and Arnold Lee, C. F. Woolwine, Gordon Murray, Lawrence Haggerty, Leslie Evans, Woodrow McComas, Archie Schoonover, and Andrew Kennedy, members of the Council, of the City of South Charleston, to 'strike from their records as null and void, the resolutions appointing Lina Mahoney, Clella Haynes, and Jenenne Frodgue to' certain positions of employment which will be described subsequently herein.

The basis of the relief sought is that the three persons named above were not employed in accordance with the civil service procedures and requirements applicable to police departments in municipalities having a population of five thousand or more, as provided in Chapter 57, Acts of the Legislature, 1937, Regular Session, now appearing as Article 5A, Chapter 8 of the Code, 1931, as amended. There is thereby presented for decision the question whether the positions in which such three persons are employed come within the purview of such statutory provisions.

The respondents filed a demurrer and an answer to the petition. The pertinent facts are not in controversy. The demurrer is predicated on four grounds as follows: The petition fails to disclose a clear legal right in the petitioner to the relief prayed for therein; the petition discloses on its face that Lina Mahoney, Clella Haynes and Jenenne Frodgue are not policemen, officers or other employees covered by the civil service statutes; the petitioner has failed to exhaust the administrative remedies before the civil service commission of the municipality and hence mandamus does not lie; and the members of the civil service commission and the three employees involved in this proceeding are necessary parties.

We do not believe that the three persons whose employment is questioned herein, or the members of the municipal civil service commission are necessary parties to this proceeding in mandamus. State ex rel. Evans v. Kennedy, W.Va., 115 S.E.2d 73, 78. Nor do we believe that the petitioner was required to exhaust any sort of administrative remedy as a prerequisite to a right to maintain this proceeding in mandamus. It is true that Section 13 of the act in question prescribes a certain procedure for removal, discharge, or reduction in rank of a 'member of any police department' within the terms of the act. We believe, however, that such procedures are intended to apply to persons properly and lawfully employed and do not purport to afford a remedy to question the legality of an appointment or to adjudicate principles of law. The question primarily dealt with in the briefs and oral arguments involves the basic question pertaining to the legality of the employment of Lina Mahoney, Clella Haynes, and Jenenne Frodgue.

On June 5, 1958, the respondents employed Lina Mahoney and Clella Haynes to check the working condition of the parking meters within the city; to make certain minor repairs thereto; and to issue notices, in a form hereinafter described, to persons guilty of parking vehicles without having deposited sufficient money in such parking meters. The notices referred to above are in the form of brown envelopes, approximately three inches by five inches in size. On one side of each envelope is a place for supplying the date and the hour of the violation, the license number of the motor vehicle involved, and the amount of the monetary penalty for overtime parking. The penalty indicated on the envelope is twenty-five cents for one-half hour, fifty cents for one hour, seventy-five cents for two hours, one dollar for three hours, and two dollars for four hours. Thereunder the following language is printed:

'You have violated an ordinance of the City of South Charleston West Virginia governing the parking of motor vehicles in metered spaces.

'You may pay for this violation by placing in this envelope the amount encircled above and by then placing the envelope in a Meter Violation Collection Box or by delivery to Police Headquarters.

'PENALTY

'Failure to comply with the above directions within 24 hours may result in a warrant or summons requiring your appearance in Municipal Court to answer for such failure.'

The two women thus employed for such duties in relation to parking meters were not employed in conformity with the civil service statutes referred to above. They are paid from funds of the police department of the municipality, but perform no duties other than those enumerated above. They have taken no oath of office and have posted no bond as required of police officers. They make no arrests, do not carry firearms, and do not procure the issuance of warrants of arrest. They work under the supervision of the mayor and chief of police. After such notices are issued by them, an 'original' thereof is delivered to the traffic clerk, and thereafter Lina Mahoney and Clella Haynes take no further action in relation to collecting the prescribed monetary penalty for the parking violation, nor do they collect the money from the parking meters.

On August 1, 1961, Jenenne Frodgue was employed by the respondents as traffic clerk for the municipality. Her employment was not in accordance with the civil service statutes referred to earlier herein. She is not paid from funds of the police department. He duties are of a clerical and stenographic nature. She works under the direction of the mayor and chief of police. She performs certain clerical services for the police department, but she also performs certain clerical, stenographic and other duties for the city which have no relation to the police department. She receives payment of fines for parking violations and in that connection has posted a bond in the penal sum of one thousand dollars. Such fines also may be paid directly to the city treasurer. She receives the original of notices issued by Clella Haynes and Lina Mahoney to motorists guilty of violations of city ordinances relating to parking meters as stated above, and occasionally she sends notices to persons who are delinquent in paying fines or monetary penalties for overtime parking. She has taken no oath of office. She performs no duties for the city other than of the nature stated above.

Robert W. Parkins, the petitioner, is a citizen and resident of the City of South Charleston. Since August 15, 1954, he has been employed as a policeman of the municipality, and at the present time he holds the rank of patrolman.

Section 1 of the act in question is as follows: 'All appointments to and promotions in all paid police departments of cities and municipalities of five thousand population or more, shall be made only according to qualifications and fitness to be ascertained by examinations, which, so far as practicable, shall be competitive, as hereinafter provided. On and after the date this act takes effect no person except the chief of police shall be appointed, reinstated, promoted or discharged as a paid member of said department of any city or municipality in the State of West Virginia subject to the provisions hereof, in any manner or by any means other than those prescribed in this act.' Section 2 is, in part, as follows: 'There shall be a 'civil service commission' in each city or municipality of five thousand population or more, having a police department, in which members thereof are paid by said city or municipality.' A portion of Section 6 is as follows: 'The civil service commission, in each city or municipality, shall make rules and regulations providing for examinations for positions in the paid police department in each city or municipality under this act, and for appointments to and promotions therein, * * *. All original appointments to any positions in police departments within the terms of this act shall be for a probationary period of six months.'

Section 7 includes the following language: 'All examinations for positions or promotions shall be practical in their character, and shall relate to such matters, and include such inquiries, as will fairly and fully test the comparative merit and fitness of the person or persons examined to discharge the duties of the employment sought by him or them. * * * All applicants for any position in the police department shall, * * * be required to submit to a physical examination before being admitted to the regular examinations held by the commission. * * * The commission shall post, in a public place at its office, the eligible list, containing the names and grades of those who have passed examinations for...

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