Prichard v. DeVan, (No. 7824)

• Decision Date: 16 January 1934
• Docket Number: (No. 7824)
• Court: West Virginia Supreme Court
• Parties: Henry L. Prichard v. R P. DeVan, Mayor

114 W.Va. 509

Henry L. Prichard

v.R P. DeVan, Mayor

(No. 7824)

Supreme Court of Appeals of West Virginia.

Submitted January 10, 1934.

Decided January 16, 1934.

1. Courts

Acts of the legislature are deemed to refer and apply to persons and things within the state.

2. Constitutional Lawt

Political tests may not be made a prerequisite to the enjoyment of political rights. Constitution, Article III, section 11.

3. Mandamus

An individual may maintain mandamus to compel the performance of an official act in which the individual has a common interest with the public at large.

4. Constitutional Law

Section 18, Chapter 60, Acts Regular Session 1933, is unconstitutional.

5. Statutes

When a part of an Act is invalid but the remainder reflects the legislative intent and is complete in itself, then the remainder will be upheld.

Mandamus proceeding by Henry L. Prichard against R. P. DeVan, Mayor of the City of Charleston.

Writ awarded.

S. B. Avis, for relator.

Charles Ritchie and Philip II. Hill, for respondent.

Hatcher, Judge:

At the regular session of the legislature in 1933 an Act was passed placing paid municipal fire departments under civil service. See Acts 1933, chapter 60. Section 2 thereof is in part as follows:

'' There shall be a ' civil service commission' in each city or incorporated town having a fire department, any of the members of which are paid by said city or municipality. This civil service commission shall consist of three commissioners, one of whom shall be appointed by the mayor or principal executive officer of said city; one of whom shall be appointed by the local trades board in event that said board shall exist in said city, or in case no such board exists in said city, then by the paid international association of fire fighters; and the third shall be appointed by the local chamber of commerce. The persons appointed commissioners shall be qualified voters of the city or municipality for which they are appointed; and at least two of said commissioners shall be per sons in full sympathy with the purposes of this act. Not more than two of the said commissioners, at any one time, shall be adherents of the same political party.''

The mayor of the city of Charleston refused to appoint a commissioner as above directed. This is a proceeding in mandamus to compel the appointment.

The brief of the mayor advances the following propositions in justification of his course:

"First: The act of the legislature is void, because it attempts to confer official powers upon non-official bodies.

"Second: The act as written requires a political test as a prerequisite to pursue an employment.

"Third: The act is void on account of uncertainty.

"Fourth: The relator does not show a clear legal right to the writ prayed for."

1. The brief points to the fundamental law that official power under state government must be derived from the citizens of the state, and then makes the following argument: "It will be observed that the act authorizing the appointment of members of a 'civil service commission' as provided in the act by chambers of commerce and local trades boards prescribes no qualifications for membership upon said bodies. Members thereof may be non-residents of the municipality, state or even the nation, yet, if the act is valid the members thereof are those in whom reside one of the most important of all functions of civil government, towit: the power to designate and appoint public officials." That argument is not well taken, however, because it is an approved rule of statutory construction that "Acts are deemed to refer and apply to persons and things within the state and within the power of the legislature." Lewis' Sutherland Stat. Const. (2d Ed.) sec. 513.

The brief further contends that the power of appointment to public office can be exercised only by a public official. Granted, but a municipal fireman is an employee and not a public official. Moreover, under the act the civil service commission recommends the three applicants most meritorious in its opinion and the mayor then appoints one of the three.

2. The eighteenth section of the act is as follows:

"All paid firemen in cities or mnnicipalities under the provisions of this act who are employed by such cities or municipalities upon the date of the passage of this act shall be construed to have been appointed under the provisions of this act and shall hold their...