State ex rel. Kucera v. City of Wheeling, No. 12856

CourtSupreme Court of West Virginia
Writing for the CourtBROWNING
Citation170 S.E.2d 367,153 W.Va. 538
PartiesSTATE ex rel. Robert KUCERA, etc., et al., v. The CITY OF WHEELING, etc.
Decision Date03 September 1969
Docket NumberNo. 12856

Page 367

170 S.E.2d 367
153 W.Va. 538
STATE ex rel. Robert KUCERA, etc., et al.,
v.
The CITY OF WHEELING, etc.
No. 12856.
Supreme Court of Appeals of West Virginia.
Sept. 3, 1969.
Decided Nov. 11, 1969.
Rehearing Denied Dec. 15, 1969.

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.

[153 W.Va. 539] 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.

Page 368

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 [153 W.Va. 540] 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,...

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206 practice notes
  • State ex rel. Frazier v. Meadows, No. 22333
    • United States
    • Supreme Court of West Virginia
    • December 8, 1994
    ...petitioner seeks to compel; and (3) the absence of another adequate remedy." Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 Norwood Bentley III, Bowles, Rice, McDavid, Graff & Love, Charleston, William Flanigan, Sanders, Austin, Swope & Flanigan, P......
  • Woodruff v. Board of Trustees of Cabell Huntington Hosp., No. 16313
    • United States
    • Supreme Court of West Virginia
    • July 11, 1984
    ...the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2 State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 2. Under article III, §§ 1, 7, and 16 of the West Virginia Constitution, collective bargaining agreements in the public sector ......
  • Smith v. West Virginia State Bd. of Educ., No. 15454
    • United States
    • Supreme Court of West Virginia
    • June 22, 1982
    ...petitioner seeks to compel; and (3) the absence of another adequate remedy." Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 2. One of the axioms of statutory construction is that a statute will be read in context with the common law unless it clear......
  • State ex rel. Carenbauer v. Hechler, No. 27458.
    • United States
    • Supreme Court of West Virginia
    • March 31, 2000
    ...the petitioner seeks to compel; and (3) the absence of another adequate remedy. Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). Where challenges to the electoral process are involved, however, this Court has recognized the need to relax the string......
  • Request a trial to view additional results
206 cases
  • State ex rel. Frazier v. Meadows, No. 22333
    • United States
    • Supreme Court of West Virginia
    • December 8, 1994
    ...petitioner seeks to compel; and (3) the absence of another adequate remedy." Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 Norwood Bentley III, Bowles, Rice, McDavid, Graff & Love, Charleston, William Flanigan, Sanders, Austin, Swope & Flanigan, P......
  • Woodruff v. Board of Trustees of Cabell Huntington Hosp., No. 16313
    • United States
    • Supreme Court of West Virginia
    • July 11, 1984
    ...the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2 State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 2. Under article III, §§ 1, 7, and 16 of the West Virginia Constitution, collective bargaining agreements in the public sector ......
  • Smith v. West Virginia State Bd. of Educ., No. 15454
    • United States
    • Supreme Court of West Virginia
    • June 22, 1982
    ...petitioner seeks to compel; and (3) the absence of another adequate remedy." Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 2. One of the axioms of statutory construction is that a statute will be read in context with the common law unless it clear......
  • State ex rel. Carenbauer v. Hechler, No. 27458.
    • United States
    • Supreme Court of West Virginia
    • March 31, 2000
    ...the petitioner seeks to compel; and (3) the absence of another adequate remedy. Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). Where challenges to the electoral process are involved, however, this Court has recognized the need to relax the string......
  • Request a trial to view additional results

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