State ex rel. Kucera v. City of Wheeling

Decision Date03 September 1969
Docket NumberNo. 12856,12856
Citation170 S.E.2d 367,153 W.Va. 538
CourtWest Virginia Supreme Court
PartiesSTATE ex rel. Robert KUCERA, etc., et al., v. The CITY OF WHEELING, etc.

Syllabus by the Court

1. Petitioners in mandamus must have a clear legal right to the relief sought therein and such right cannot be established in the proceeding itself.

2. A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.

3. Where the State Tax Commissioner approves a city's budget for the upcoming fiscal year, there is publication of that budget in accordance with the statutes of West Virginia, and that budget receives the final approval of the city council, a writ of mandamus will not lie against the city council to compel payment of increases in salaries for personal services under the budget where the city council, city manager, or any other official has been designated as having the final authority and discretion of determining what salaries are to be paid and has not exercised such authority and discretion.

McCamic & McCamic, Jolyon W. McCamic, Wheeling, for relator.

George G. Bailey, City Sol., George B. Vieweg, III, Asst. City Sol., Wheeling, for respondent.

BROWNING, Judge.

This is an original proceeding for a writ of mandamus instituted by Robert Kucera, individually, and on behalf of all persons similarly situate as paid fire fighters employed by the City of Wheeling, a municipal corporation, against the City of Wheeling. The petitioner represents that the defendant, the City of Wheeling, is a duly chartered municipal corporation of the State of West Virginia; that petitioner is President of Fire Fighters Local No. 12; that petitioner and all other members of Fire Fighters Local No. 12 are employed by the defendant, the City of Wheeling, in accordance with the definition as set forth in Code, 8--15--9 as amended. In December, 1967, the petitioner, in the same capacity brought suit against the City of Wheeling for overtime wages, which suit was appealed.

This Court did grant an appeal in that case, styled Kucera, etc. et al. v. City of Wheeling, 170 S.E.2d 217, and on July 15, 1969, granted the appellants the motion to reverse thereby holding that municipal firemen were by the applicable provisions of Code 21--5C--1, as amended, 'entitled to time and a half for hours worked in excess of the hours specified therein.' A petition for rehearing was filed in that case on August 11, 1969, and was denied on November 4, 1969.

On April 14, 1969, the City of Wheeling received approval in writing from the West Virginia State Tax Commissioner for its fiscal year 1969--70 budget showing total disbursements of $3,407,003.71. This budget represented salaries to be paid as personal services to the Fire Department of $720,566.44. This budget after publication in accordance with the statutes of West Virginia received final approval by Council of the City of Wheeling on April 15, 1969. The $720,566.44 was broken down as follows: The chief would receive $10,000.00; five assistant chiefs, $38,400.00; eleven captains, $76,164.00; fourteen lieutenants, $93,240.00; twenty-eight drivers, $176,266.84; forty pipemen, $260,563.20; one mechanic, $7,032.00; one stenographer, $5,040.00; four switchboard operators, $15,530.40; one female clerk, $3,360.00; compensation for holidays, $3,500.00; and longevity allowance of $31,470.00. The relator alleges that since July 1, 1969, the City Manager, through the Auditor of the City of Wheeling, has paid all employees except the firemen in accordance with the approved budget. He has made these payments without any other action by the City Council. The firemen are not being paid their increase as set forth in the approved budget because of alleged discriminatory action on the part of the City of Wheeling. The petitioner quotes from alleged minutes of the City Council in a meeting held June 10, 1969: '(T)hat all pay raises in the fire department be held up pending the decision of the State Supreme Court on the case of James Robert Kucera vs. The City of Wheeling.

'If the appeal is not granted, the City of Wheeling will then pay the raise retroactive to July 1, 1969.

'This action is prompted because of the tremendous financial burden that will be placed on this city if the Court rules in favor of Mr. Kucera.'

On July 8, 1969, Council granted the raises to the stenographer, the four switchboard operators and one female clerk in the Fire Department, since these individuals would not be affected by the overtime pay as ordered by this Court. On August 12, 1969, Council granted the raises to the fire chief and the mechanic retroactive to July 1, 1969, since they would not be affected by overtime pay. All other personnel in the Fire Department have not received their increases because they are affected as to the overtime pay case.

Respondent denies that relator files this proceeding in exactly the same capacity as the former suit for overtime pay. It also denies that the Council of the City of Wheeling approved the budget for the City for the fiscal year 1969--70 by ordinance on April 15, 1969; it also alleges that the minutes of the Council for the...

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