State ex rel. Burchett v. Taylor

• Decision Date: 12 July 1966
• Docket Number: No. 12572,12572
• Citation: 150 W.Va. 702,149 S.E.2d 234
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. W. E. BURCHETT, Superintendent, West Virginia Department of Public Safety v. Honorable Frank L. TAYLOR, Judge of the Circuit Court of Kanawha County, WestVirginia.

Page 234

149 S.E.2d 234

150 W.Va. 702

STATE of West Virginia ex rel. W. E. BURCHETT Superintendent, West Virginia Department of Public Safety v. Honorable Frank L. TAYLOR, Judge of the Circuit Court of Kanawha County, WestVirginia.

No. 12572.

Supreme Court of Appeals of West Virginia.

Submitted May 31, 1966.

Decided July 12, 1966.

Syllabus by the Court

1. 'The general rule is that where an administrative remedy is provided by statute or by rules and regulations having the force and effect of law, relief must be sought from the administrative body, and such remedy must be exhausted before the courts will act.' Point 1 Syllabus, Daurelle v. Traders Federal Savings & Loan Association, 143 W.Va. 674 (104 S.E.2d 320).

2. 'Due process of law may be afforded administratively as well as judicially. Lawful administrative process is due process equally as much as lawful judicial process. * * *.' Point 2 Syllabus, Nulter v. State Road Commission of West Virginia et al., 119 W.Va. 312 (193 S.E. 549).

3. A member of the department of public safety who, as a disciplinary measure and after a full hearing in accordance with the rules and regulations of the department, is, by the superintendent of the department, demoted from his rank of sergeant to the rank of trooper and transferred to a different post within the state, is not entitled, under the provisions of Chapter 29A, Code, 1931, as amended, the Administrative Procedures Act, to an appeal to a circuit court from such action of the superintendent.

4. Prohibition is a proper proceeding in this Court by which to prevent a circuit court from proceeding further in a case in that court in relation to which the circuit court lacks jurisdiction.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, for relators.

Frank L. Taylor, Jr., Charleston, for respondent.

CALHOUN, Judge:

On December 10, 1965, W. E. Burchett, Superintendent of the West Virginia Department of Public Safety, as a disciplinary measure, demoted O. S. Neely, a member of the department, from his rank as a sergeant to the rank of trooper and transferred him to a different post within the state. The Circuit Court of Kanawha County granted Neely an appeal to that court from the ruling and action of the superintendent of the department. In this proceeding in prohibition instituted in this Court, pursuant to its original jurisdiction, W. E. Burchett, in his official capacity, seeks to prohibit Honorable Frank L. Taylor, Judge of the Circuit Court of Kanawha County, from proceeding further in the O. S. Neely case.

In the prohibition proceeding it is asserted that the Circuit Court of Kanawha County lacks jurisdiction to proceed further in the case appealed to that court for two reasons:

(1) O. S. Neely has not exhausted the administrative remedies made available to him by the provisions of Article 2, Chapter 15, Code, 1931, as amended; and

(2) Chapter 29A Code, 1931, as amended, the State Administrative Procedures Act under which the appeal was granted by the circuit court, is not applicable to the O. S. Neely case.

Chapter 15, Article 2, Code, 1931, as amended, deals with the department of public safety, frequently referred to as the state police. Section 19 of Article 2 provides that the superintendent 'may suspend or remove from the service any member of the department' on any one of various grounds specifically enumerated. Section 20 of Article 2 provides that the governor, by and with the advice and consent of the senate, shall appoint two persons, possessing qualifications enumerated in the statute, as a board of commissioners. Section 20 contains the following additional language: 'The two persons so appointed shall constitute the board of commissioners whose duty it shall be to review all cases of appeal from the findings of the superintendent on charges filed against any such member of the department of public safety, and in all cases of dismissal or suspension of any member of the department of public safety by the superintendent as hereinbefore provided.' The statutory language quoted immediately above is quite broad and inclusive and clearly makes available to O. S. Neely a right of appeal to the board of commissioners from the action of the superintendent. This is an administrative remedy which Neely has not exhausted. The doctrine of exhaustion of administrative remedies requires that, where a remedy before an administrative agency is provided, relief must be sought by exhausting this remedy before the courts will act. 2 Am.Jur.2d, Administrative Law, Section 595, page 426; Daurelle v. Traders Federal Savings & Loan Association of Parkersburg et al., 143 W.Va. 674, pt. 1 syl., 104 S.E.2d 320.

Code, 1931, 15--2--8, authorizes the superintendent, subject to the written approval of the governor, to 'make and promulgate proper rules and regulations for the government, discipline and control of the department of public safety and also proper rules and regulations for the examination of all applicants for appointment thereto.' Pursuant to the power and authority granted by the statute, extensive rules and regulations, which are referred to as general orders, have been formulated, adopted and promulgated by the department. Charges against O. S. Neely were preferred and his hearing was conducted in conformity with pertinent rules and regulations, or general orders, of the department.

The superintendent convened a board of inquiry consisting of two captains and three lieutenants, all members of the department, to hear the charges against Sergeant Neely. All witnesses for both the prosecution and the defense were duly sworn to tell the truth, the whole truth and nothing but the truth. Sergeant Neely was permitted to have a member of the department of his own selection to act as his counsel at the hearing. He selected a sergeant who was assisted by a lieutenant. On motion of the defense, witnesses were excluded. All proceedings were recorded and transcribed. Sergeant Neely and the sergeant who was acting as counsel were asked whether they had any objection to any of the five persons sitting on the board of inquiry. They replied that the defense had no objection. Sergeant Neely was asked to stand and thereupon the charges were read to him. He stated that he understood the charges. When asked to plead, he entered a plea of not guilty. At the conclusion of the taking of testimony, the defense was allowed fifteen minutes 'for argument and summation.' The board of inquiry, voting in closed session and by secret, written ballots, found Sergeant Neely guilty in relation to two of the four charges of misconduct made against him, and recommended that he be demoted to the rank of trooper and transferred. The superintendent followed that recommendation. It appears from the record that the hearing was fair and that Sergeant Neely's rights were carefully safeguarded.

The judge of the circuit court apparently felt that Neely may have been denied due process of law. We do not perceive any basis for such a conclusion. 'Due process of law may be afforded administratively as well as judicially. Lawful administrative process is due process equally as much as judicial process. * * *.' Nulter v. State Road Commission of West Virginia et al., 119 W.Va. 312, pt. 3 syl., 193 S.E. 549: 'Due process of law does not always require judicial hearing. It does in matters of purely judicial nature, but not in matters of taxation or matters purely administrative.' State v. Sponaugle et al., 45 W.Va. 415, pt. 3 syl., 32 S.E. 283, 43 L.R.A. 727. See also State v. Swann et al., 46 W.Va. 128, 132, 33 S.E. 89, 91; State ex rel. Thompson v. Morton, 140 W.Va. 207, 84 S.E.2d 791; 2 Am.Jur.2d, Administrative Law, Section 351, page 163; 16 Am.Jur.2d, Constitutional Law, Section 581, page 986; 16A C.J.S. Constitutional Law § 569(4)b, page 578; 43 Am.Jur., Public Officers, Section 208, page 49; 24 A.L.R.2d, Section 8, page 861. 'The...