State ex rel. Musick v. Londeree

• Decision Date: 28 June 1960
• Docket Number: No. 12024,12024
• Citation: 145 W.Va. 369,115 S.E.2d 96
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Anton D. MUSICK v. Joseph W. LONDEREE, Mayor of the City of South Charleston, et al.

Page 96

115 S.E.2d 96

145 W.Va. 369

STATE of West Virginia ex rel. Anton D. MUSICK v. Joseph W. LONDEREE, Mayor of the City of South Charleston, et al.

No. 12024.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1960.

Decided June 28, 1960.

Syllabus by the Court

1. Sound public policy requires that one who claims a right or title to a public office, and is denied right or title thereto, assert his claim in a proper proceeding prosecuted therefor, without unreasonable delay.

2. A vacancy in a paid position in the policy department of a municipality of five thousand or more, after the initial appointment thereto, insofar as practicable, must be filled by promotion from persons holding positions in the next lower grade, upon merit and superior qualification, to be ascertained by tests provided for by the civil service commission of such city, in accordance with the provisions of Article 5A of Chapter 8 of the official Code, as amended.

3. The City of South Charleston not being required by its charter or otherwise to have any particular number of lieutenants in its police department, the power to determine whether an alleged vacancy as to any office of such a lieutenant exists, or whether any such vacancy must be filled, rests in the discretion of the council of that city. Courts can not assume that such a vacancy exists, or that any such vacancy must be filled, merely on a showing that some person has ceased to exercise the functions of such an office.

J. Campbell Palmer, III., Charleston, for relator.

George W. Stokes, Charleston, for respondents.

GIVEN, Judge.

This original proceeding in mandamus is prosecuted by relator, State of West Virginia ex rel. Anton D. Musick, against Joseph W. Londeree, Mayor of the City of South Charleston, the council of that city, and the police civil service commission of that city, for the purpose of requiring defendants to appoint or confirm relator as a lieutenant in the police department, and to have awarded to relator salary retroactive to the time he contends he should have been permitted to exercise the functions of the office of lieutenant. The matter is heard on the petition for relator and the exhibits filed therewith, the answer of defendants and the exhibits filed therewith, the demurrer of defendants to the petition, and briefs and oral arguments of the respective parties.

The defendant Londeree is Mayor of the City of South Charleston, a municipal corporation with a population of more than five thousand. Anton D. Musick, relator, on September 1, 1947, became a member of the police department of that city and, on July 1, 1954, was promoted to, and is now serving as, sergeant of that department. He contends, however, that such promotion should have been made on May 2, 1952, when a promotion was made of another patrolman to a vacancy of a position of sergeant.

Relator alleges that on October 17, 1957, a vacancy in the position of lieutenant in the police department existed and, though relator had successfully passed a competitive examination held by the civil service commission and was, in all respects, qualified and eligible for promotion to the vacancy then existing in the police department, a person other than relator was promoted thereto. He further alleges that, on March 1, 1959, A. E. Jones, theretofore a lieutenant in the police department, was promoted and qualified as a captain in the police department, and that relator was then the only sergeant on the police force eligible to the vacancy of a lieutenant created by the promotion of Lieutenant Jones, and that at all times he was, and still is, eligible and qualified to fill the position of lieutenant, but that defendants have failed and refused to make or confirm his promotion or appointment, and that such vacancy continues to exist.

It further appears from allegations of the petition that relator, soon after the promotion of Lieutenant Jones to a captaincy, and continuously thereafter, protested the failure of defendants to appoint or promote relator to the position of lieutenant, to the vacancy created therein by the promotion of Lieutenant Jones. On October 22, 1959, the police civil service commission convened for the purpose of considering the protests of relator concerning 'his failure to secure a promotion * * * of lieutenant' and, after due consideration, held that the request of relator 'comes too late, and that by reason of laches and lapse of time in making such request, the same should be denied'.

It is further alleged in the petition that 'a vacancy does presently exist in the position of Lieutenant', but that 'there are no set number of Lieutenants' in the police department. There is an absence of any showing, by allegation or otherwise, that the charter of the City of South Charleston, or any ordinance of that city, or any statute, requires that any definite number of lieutenants be had or maintained in or by the city.

As to the right of petitioner to the office of lieutenant, or as to any salary therefor, as of October 17, 1957, we are of the opinion that he is precluded in relation thereto, because of laches or unreasonable delay in asserting his rights. The controlling principle was discussed and decided in the recent case of State ex rel. Kay v. Steinmetz, W.Va., 111 S.E.2d 27. In the opinion in that case it is made clear that where an individual is entitled to hold or occupy a public office, but is prevented from doing so, he must assert his claim or right thereto in a proper proceeding within a reasonable time, or he will be barred by laches. Reasonable promptness is demanded in such circumstances, because of the public policy requiring that title or rights to a public office be settled without unnecessary delay. See Hertzog v. Fox, Mayor, 141 W.Va. 849, 93 S.E.2d 239; Cunningham v. City of Huntington, 97 W.Va. 672, 125 S.E. 810; Rhodes v. Board of Education, 95 W.Va. 57, 120 S.E. 183.

As to the vacancy alleged to have occurred March 1, 1959, by the promotion of Lieutenant Jones to a captaincy, we think the facts disclose a different situation. Petitioner, in a very short time after the promotion of Lieutenant Jones, made known to the proper authorities his claim to the promotion to the alleged vacancy, and almost continuously thereafter insisted that his promotion be made. Any unreasonable delay can be attributed only to defendants. Petitioner, with due diligence, continued his efforts before the proper city authorities, and soon after having been denied any relief by them, sought relief in this Court. Such vacancy, if any exists, has remained unfilled. It can hardly be questioned that, assuming such vacancy exists, petitioner is entitled to be promoted or appointed thereto. See Gartin v. Fiedler, Mayor, 129 W.Va. 40, 38 S.E.2d 352; Michie's 1955 Code of West Virginia, Article 5A of Chapter 8; 67 C.J.S. Officers § 54(2). We therefore reach the contention of defendants that no vacancy in the position of lieutenant exists.

As above noticed, the petition herein admits that 'there are no set number of Lieutenants' in the police department of the City of South Charleston. Our Constitution, Article IV, Section 8, provides: 'The Legislature, in cases not provided for in this Constitution, shall prescribe, by general laws, the terms of office, powers, duties and compensation of all public officers and agents, and the manner in which they shall be elected, appointed and removed.' The Constitution contains no provision relating to appointment of lieutenants in the police department in any municipality. Code, 3-10-11, as amended, after providing for the filling of certain vacancies in offices not involved here, contains this provision: 'Any vacancy in any other office filled by appointment, or in any office hereafter created to be filled by appointment, shall be filled by the same person, court or body authorized to make appointment to such office for the full term...