State ex rel. Kay v. Steinmetz, 11076

• Decision Date: 24 November 1959
• Docket Number: No. 11076,11076
• Citation: 144 W.Va. 802,111 S.E.2d 27
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. KAY et al., etc. v. STEINMETZ et al.

Page 27

111 S.E.2d 27

144 W.Va. 802

STATE ex rel. KAY et al., etc. v. STEINMETZ et al.

No. 11076.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 3, 1959.

Decided Nov. 24, 1959.

Syllabus by the Court

1. The extraordinary remedy of mandamus, though on the law side of the Court, is limited as to time by the equitable doctrine of laches.

2. The burden of showing sufficient excuse for what appears from the record to be an unreasonable delay in the assertion of a clear legal right through the remedy of mandamus rests upon the person asserting such right.

3. Where certain members of 'The Bridge Commission of the City of Dunbar, West Virginia' were purportedly removed from office by the mayor, and others were appointed who assumed the control, management and operation of the functions of the Bridge Commission for a period of almost two years prior to the institution of a proceeding in mandamus to compel the reinstatement of the members so removed, such delay of almost two years in the assertion of their rights is unreasonable, and, in the absence of sufficient excuse, the relief sought will be denied.

Arden J. Curry, Charleston, for relators.

McClintic, James, Wise & Robinson, Charles C. Wise, Jr., Robert E. Magnuson, Charles W. Caldwell, Charleston, for respondents.

BROWNING, Judge.

Petitioners, alleging themselves to be the duly appointed 'Bridge Commission of the City of Dunbar, West Virginia,' filed their original petition in this Court on July 29, 1959, seeking a writ of mandamus requiring respondents to vacate and cease usurpation of the office of members of that Commission and to turn over all documents, papers, and other property in their possession belonging to the Commission.

The petition alleges the creation of the Bridge Commission, as authorized by Michie's 1955 Code §§ 1687(2) [17-17-30], by Ordinance No. 126 of the City of Dunbar. Ordinance No. 126 provides in part as follows:

'Section 1. There shall be, and there is hereby created a commission to be known as 'The Bridge Commission of the City of Dunbar, West Virginia'. The said Commission shall consist of seven members, who shall be appointed by the Mayor, and whose appointments shall be confirmed by the City Council. The Mayor shall appoint said Commission as soon as may be after this ordinance becomes effective, and shall designate the Chairman thereof at the time of such appointments. The said Commissioners shall immediately enter upon their duties and hold office until all revenue 'Alternate Bridge Commission' to function retired and fully paid off. * * *'

The petition further alleges the appointment and confirmation by the City Council of petitioners; their entry upon their duties; the construction and financing of a bridge across the Kanawha River between Dunbar and South Charleston, West Virginia; and the subsequent creation by the City Council, by Ordinance No. 176, of an 'Alternate Bridge Commission' to function 'whenever the Regular Commission, or its officers, declines, refuses, or is unable for any reason to act, * * *'

The petition then alleges the removal, by the Mayor of Dunbar, after notice, of four of the petitioners and their replacement by new appointees; the refusal of the Bank of Dunbar to honor any checks drawn on it by the Bridge Commission after August 9, 1957; and the passage by the City Council, on September 3, 1957, of Ordinance No. 177, by which: (1) Ordinance No. 176 was repealed in its entirety; (2) The existing bridge Commission was abolished; (3) A 'new commission' was created, naming the respondents, or certain of their predecessors in office; and (4) Amending Section 1 of Ordinance No. 126, establishing four year terms for commissioners and providing for their removal from office at the will and pleasure of the Mayor.

The petition then alleges that: The Commission named in Ordinance No. 177, or their successors in office, immediately took over the bank account and other properties of the bridge commission and have usurped the powers and duties of petitioners; petitioners have continued to have meetings at which they discussed the problems of the bridge commission; petitioners have made demands upon respondents to cease usurping the powers and duties of the bridge commission, which demands have been refused; Ordinance No. 177 is void; a suit has been instituted against petitioners as members of the Bridge Commission, and it is necessary for them to be recognized as such in order to answer such suit; and concludes with a prayer for the relief hereinabove mentioned.

A rule was issued pursuant to the petition directing respondents to appear before the Court on September 29, 1959, and show cause why the writ as prayed for should not be awarded. Respondents appeared in response to the rule and demurred to the petition on the grounds: (1) Petitioners, in seeking restoration to public office, have wholly separate and distinct rights which prevent their joinder as petitioners in a mandamus proceeding; and (2) Petitioners are guilty of laches in not initiating the proceeding for almost two years following their removal from office; and answered, admitting the historical recitals of the petition, but denying that petitioners are the duly appointed bridge commission or that respondents have usurped petitioners' offices, and allege that by virtue of the provisions of Section 19 of the Dunbar Charter, which empowers the Mayor, upon notice, to remove any of his appointees, and gives the person so removed the right of appeal to the council, the petitioners removed by the Mayor, having failed to appeal to the council, no longer have any right to serve as members of the Bridge Commission; Ordinance No. 177 was not passed to effect the removal of any of petitioners from office, but to satisfy the requirements of the Bank of Dunbar so that the bank would honor checks drawn upon it by the commission; respondents are the validly and legally constituted members of the Bridge Commission; and, in paragraph 11 of the answer allege that respondents have been in control and exercised full authority over the bridge, its employees, officers and manager; held regular meetings; met with representatives of the bondholders and have been recognized by them; consulted with the consulting engineer, as provided by the trust agreement; have prepared, approved and controlled the annual operating budget; have collected hundreds of thousands of dollars in revenue and disbursed the samd; have leased property not used for bridge purposes; purchased other real property; created a reserve fund account, invested moneys, and directed payment of coupons; entered into contracts for lighting and insurance; hired employees; expended...