State ex rel. City of Huntington v. Lombardo, No. 12450

CourtSupreme Court of West Virginia
Writing for the CourtCALHOUN; HAYMOND
Citation143 S.E.2d 535,149 W.Va. 671
PartiesSTATE ex rel. CITY OF HUNTINGTON, etc., et al. v. Frank J. LOMBARDO et al., Members Police Civil Service Commission, et al.
Docket NumberNo. 12450
Decision Date27 July 1965

Page 535

143 S.E.2d 535
149 W.Va. 671
STATE ex rel. CITY OF HUNTINGTON, etc., et al.
v.
Frank J. LOMBARDO et al., Members Police Civil Service
Commission, et al.
No. 12450.
Supreme Court of Appeals of West Virginia.
Submitted May 12, 1965.
Decided June 15, 1965.
Dissenting Opinion July 27, 1965.

Page 536

Syllabus by the Court

1. 'The writ of prohibition lies from a superior court not only to inferior judicial tribunals properly and technically so denominated but also to inferior ministerial tribunals possessing incidentally judicial powers, such as are known in the law as quasi judicial tribunals, and even in extreme cases to purely ministerial bodies, when they attempt to usurp judicial functions.' Point 1 Syllabus, Fleming v. Commissioners, 31 W.Va. 608 [8 S.E. 267].

2. 'Prohibition lies only in case of the unlawful exercise of judicial functions. Acts of a mere ministerial, administrative or executive character do not fall within its

Page 537

province.' Point 4 Syllabus, Fleming v. Commissioners, 31 W.Va. 608 [8 S.E. 267].

3. A police civil service commission created by Article 5A of Chapter 8 of Code, 1931, as amended, has only such jurisdiction and powers as are conferred upon it by statute. It has no inherent jurisdiction or powers.

4. Where an inferior court or tribunal lacks jurisdiction to take any valid action or to enter any valid judgment or finding in relation to which it is proceeding or is about to proceed, prohibition is a proper procedure to prevent such inferior court or tribunal from proceeding in such circumstances, notwithstanding the existence of remedies other than prohibition, such as writ of error, appeal or certiorari.

5. Prohibition is a preventive remedy. One seeking relief by prohibition in a proper case is not required, as a prerequisite to his right to resort to such remedy, to wait until the inferior court or tribunal has determined the question of its jurisdiction, or to wait until the inferior court or tribunal has taken final action in the matter in which it is proceeding or about to proceed.

[149 W.Va. 672] 6. A public hearing conducted by a municipal police civil service commission pursuant to the provisions of Article 5A, Chapter 8 of Code, 1931, as amended, is a proceeding of a judicial character within the meaning of legal principles applicable to proceedings in prohibition.

7. In proceeding to conduct a public hearing, pursuant to Section 13 of Article 5A of Chapter 8, Code, 1931, as amended, upon the demand of a member of the municipal police force who has been merely suspended by his superiors for a period of five days as a disciplinary measure, a municipal police civil service commission created pursuant to Article 5A is acting without jurisdiction and in excess of its legitimate powers and may be prevented by prohibition from proceeding further with its avowed purpose to conduct such a hearing.

E. Henry Broh, Huntington, for relators.

George G. Bailey, Wheeling, amicus curiae on behalf of City of Wheeling.

E. Franklin Pauley, Charleston, amicus curiae on behalf of W. Va. State Lodge Fraternal Order of Police and others.

Beckett & Burford and Robert H. Burford, Huntington, amicus curiae on behalf of Fraternal Order of Police, Gold Star Lodge #65, of Huntington.

Dingess & Flynn, Maurice J. Flynn, Henry L. Max, Jenkins & Jenkins, John E. Jenkins, Jr., Huntington, for respondents.

CALHOUN, Judge.

The basic question presented for decision in this original proceeding in prohibition is whether Joshua Adkins, a member of the police force of the City of Huntington, is entitled to a public hearing before the police civil service [149 W.Va. 673] commission of that city in relation to his previous suspension, as a disciplinary measure, for a period of five days.

The relators in the prohibition proceeding are Edward A. Ewing, city manager, and Esmond E. Harper, chief of police. The respondents are Frank J. Lombardo, Boyce W. Earnhardt and C. McD. England, members of the police civil service commission, and Joshua Adkins, the policeman who was suspended.

On March 11, 1965, the chief of police gave written notice to Joshua Adkins that he would be suspended for a period of five days commencing March 15, 1965, because of certain infractions of the city code pertaining to the operation of the police department. The alleged infractions were stated specifically in the written notice. On March 17, 1965, Edward A. Ewing, city manager, gave a written notice to Adkins that Ewing, as city manager, had investigated the facts pertaining to the suspension and that he, in his capacity as city manager, upheld the suspension which had been ordered by the chief of police.

Page 538

On March 19, 1965, Adkins filed with the police civil service commission an answer in writing to the charges made against him and requested a public hearing, pursuant to the provisions of Section 13, Article 5A, Chapter 8 of Code, 1931, as amended. In response to Adkins' request, the police civil service commission notified all persons in interest that a public hearing would be held on March 24, 1965, at 11 a. m. in the municipal council chambers. On that date it was determined that one member of the police civil service commission was absent and, therefore, all matters pertaining to the proposed public hearing were continued to 9:30 a. m. on April 3, 1965.

On March 30, 1965, the petition in the prohibition proceeding was presented to this Court. The purpose of the proceeding is to prohibit the police civil service commission from proceeding further on the ground that it lacks jurisdiction to hold a public hearing in a case involving a mere suspension of a police officer. A rule to show cause was granted and made returnable before the Court on April [149 W.Va. 674] 27, 1965, and further proceedings before the commission were suspended by order of this Court. The matter was continued from that date to May 11, 1965, at which time the case was submitted to the Court for decision on briefs and oral argument of counsel. In addition to briefs filed in behalf of the relators and in behalf of the members of the police civil service commission, amici curiae briefs were filed, by permission of the Court, in behalf of the City of Wheeling; in behalf of West Virginia State Lodge of Police and its president; and in behalf of Fraternal Order of Police, Gold Star Lodge No. 65 of Huntington. The brief in behalf of the City of Wheeling was presented in support of the prayer of the prohibition petition. The other two amici curiae briefs were presented in opposition to the prayer of the petition. Joshua Adkins, the suspended policeman, was not represented by counsel in this Court, though, on the day set for oral argument and submission of the case, he appeared in person and, upon his request, was permitted to speak briefly in his own behalf.

The members of the municipal police civil service commission filed an answer and a demurrer to the prohibition petition. There is no material dispute concerning the facts. The demurrer raises legal questions as follows: (1) The proceeding in prohibition is premature because the police civil service commission has not yet held a public hearing or made a ruling in relation to Adkins' suspension; (2) the relators have failed to avail themselves of other remedies, such as certiorari, and consequently prohibition is not available as a remedy; (3) there has been no abuse of the administrative power or authority granted to the police civil service commission by the legislature; (4) the proposed public hearing is an administrative function, the performance of which cannot be prevented, controlled or reviewed by a proceeding in prohibition; and (5) the relators have shown no clear legal right to the relief which they seek and, therefore, prohibition will not lie.

It is not denied that the suspension of Adkins by the chief of police, and the approval of the suspension by the city manager, from a procedural standpoint, were in accordance[149 W.Va. 675] with the provisions of the city code and regulations pertaining to such matters. The pertinent portion of the city code is quoted and made a part of the answer filed by the police civil service commission. We are not here concerned with the validity or truth of the charges made against Adkins as a basis for his temporary suspension. The case involves primarily a construction of pertinent statutes enacted by the legislature. The construction of the statutes has resulted in a contrariety of rulings by municipal police civil service commissions and by circuit courts in the state. An opinion prepared by the attorney general has expressed the view that a municipal police civil service commission has no jurisdiction to hold a public hearing in a case of this nature involving only a

Page 539

temporary suspension of a city policeman. All the briefs emphasize the need for a decision by this Court of the basic question presented in the interest of uniformity in the construction and application of the pertinent statutes.

In oral argument it was agreed that Adkins resumed his position and duties as a policeman at the expiration of the five-day period, but that the temporary suspension, unless reversed, will become a part of his police service record. If the temporary suspension was legally unjustified, there may remain a question of his right to compensation during the period of his suspension. In these circumstances it is not contended that the case has become moot merely because of the expiration of the period of suspension and it will not be so regarded by this Court. State ex rel. Hedrick v. Board of Commissioners of County of Ohio, 146 W. Va. 79, 118 S.E.2d 73; Wyckoff v. Painter, 145 W.Va. 310, 316, 115 S.E.2d 80, 85.

Article 5A of Chapter 8 of Code, 1931, as amended, deals with civil service for municipal police departments. Section 1 is, in part, as follows: '* * * On and after the date this article takes effect no person except...

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39 practice notes
  • State ex rel. Lynn v. Eddy, No. 12748
    • United States
    • Supreme Court of West Virginia
    • October 1, 1968
    ...its legitimate powers. State ex rel. Scott v. Taylor, W.Va., 160 S.E.2d 146; State ex rel. City [152 W.Va. 358] ofHuntington v. Lombardo, 149 W.Va. 671, 143 S.E.2d 535; State ex rel. Zirk v. Muntzing, 146 W.Va. 349, 120 S.E.2d 260; State ex rel. Cosner v. See, 129 W.Va. 722, 42 S.E.2d 31; S......
  • Bloomer v. State, No. S-08-0139.
    • United States
    • United States State Supreme Court of Wyoming
    • June 12, 2009
    ...selection process. In short, "[p]rohibition is a preventive remedy." Syl. pt. 5, in part, State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 143 S.E.2d 535 (1965). Cf. Syl. pt. 1, Town of Hawk's Nest v. County Court, 55 W.Va. 689, 48 S.E. 205 (1904) ("Prohibition does not lie wher......
  • Winkler v. State School Bldg. Authority
    • United States
    • Supreme Court of West Virginia
    • January 1, 1990
    ...remedy because it is available only against judicial officers. See Syl. pt. 2, State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 143 S.E.2d 535 (1965); Syl. pt. 2, State ex rel. Noce v. Blankenship, 93 W.Va. 273, 116 S.E. 524 (1923); Syl. pt. 4, Fleming v. Commissioners, 31 W.Va.......
  • Hechler v. Casey, No. 16700
    • United States
    • Supreme Court of West Virginia
    • July 5, 1985
    ...final action in the matter in which it is proceeding or about to proceed." Syl. pt. 5, State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 143 S.E.2d 535 [175 W.Va. 437] 4. The disclosure provisions of this State's Freedom of Information Act, W.Va.Code, 29B-1-1 et seq., as amended,......
  • Request a trial to view additional results
39 cases
  • State ex rel. Lynn v. Eddy, No. 12748
    • United States
    • Supreme Court of West Virginia
    • October 1, 1968
    ...its legitimate powers. State ex rel. Scott v. Taylor, W.Va., 160 S.E.2d 146; State ex rel. City [152 W.Va. 358] ofHuntington v. Lombardo, 149 W.Va. 671, 143 S.E.2d 535; State ex rel. Zirk v. Muntzing, 146 W.Va. 349, 120 S.E.2d 260; State ex rel. Cosner v. See, 129 W.Va. 722, 42 S.E.2d 31; S......
  • Bloomer v. State, No. S-08-0139.
    • United States
    • United States State Supreme Court of Wyoming
    • June 12, 2009
    ...selection process. In short, "[p]rohibition is a preventive remedy." Syl. pt. 5, in part, State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 143 S.E.2d 535 (1965). Cf. Syl. pt. 1, Town of Hawk's Nest v. County Court, 55 W.Va. 689, 48 S.E. 205 (1904) ("Prohibition does not lie wher......
  • Winkler v. State School Bldg. Authority
    • United States
    • Supreme Court of West Virginia
    • January 1, 1990
    ...remedy because it is available only against judicial officers. See Syl. pt. 2, State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 143 S.E.2d 535 (1965); Syl. pt. 2, State ex rel. Noce v. Blankenship, 93 W.Va. 273, 116 S.E. 524 (1923); Syl. pt. 4, Fleming v. Commissioners, 31 W.Va.......
  • Hechler v. Casey, No. 16700
    • United States
    • Supreme Court of West Virginia
    • July 5, 1985
    ...final action in the matter in which it is proceeding or about to proceed." Syl. pt. 5, State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 143 S.E.2d 535 [175 W.Va. 437] 4. The disclosure provisions of this State's Freedom of Information Act, W.Va.Code, 29B-1-1 et seq., as amended,......
  • Request a trial to view additional results

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