State Ex Rel. Roy McLaughlin v. Morris, (No. 9803)

• Decision Date: 19 February 1946
• Docket Number: (No. 9803)
• Citation: 128 W.Va. 456
• Court: West Virginia Supreme Court
• Parties: State Ex Rel. Roy McLaughlin v. Honorable Ben F. Morris, Mayor, Etc.

128 W.Va. 456

State Ex Rel. Roy McLaughlin

v.Honorable Ben F. Morris, Mayor, Etc.

(No. 9803)

Supreme Court of Appeals of West Virginia.

Submitted January 9, 1946.

Decided February 19, 1946.

Municipal Corporations

Mandamus does not lie under Section 2, Chapter 60, Acts of the Legislature, 1933, Regular Session, to compel the ap pointment of a civil service commissioner by the mayor of a municipality, wherein the officers of an established fire department are paid nominal salaries and the members of such department are only paid for services actually rendered on an hourly basis.

Original mandamus proceeding by the State, on the relation of Roy McLaughlin, against Honorable Ben F. Morris, Mayor of the Town of Marmet, to compel respondent to appoint one member of a civil service commission.

Writ denied.

Haymond, Judge, dissenting.

Arthur B. Hodges and Harold H. Neff, for petitioner.

John E. Amos, for respondent.

Lovins, Judge:

In this original mandamus proceeding Roy McLaughlin, relator, seeks a writ requiring Ben F. Morris, Mayor of the Town of Marmet, to appoint one member of a civil service commission, as provided in Section 2, Chapter 60, Acts of the Legislature, Regular Session, 1933.

The Common Council of the Town of Marmet on July 24, 1944, passed an ordinance establishing a fire department for the town. Sections 2 and 3 of the ordinance, as originally adopted, authorized the appointment of a fire chief, assistant fire chief, one fire truck operator to be known as "captain", and members of the fire department. By an amendment, adopted July 23, 1945, it was provided that the fire chief should be appointed by the mayor to serve at his will and pleasure, and that the fire chief may be summarily dismissed by the mayor. It was further provided by the amendment that the assistant fire chief and fire truck operator should be appointed by the mayor and fire chief, to serve at the will and pleasure of the mayor, and that the members of the department should be selected by the mayor from a list of names submitted by the fire chief and approved by the common council of the town. The ordinance fixed the salary of the fire chief at twenty-five dollars a month, the assistant fire chief at ten dollars a month, and the fire truck operator, or "captain", at five dollars a month. Compensation of members of the department was fixed at two dollars fifty cents for the first hour and one dollar for each additional hour thereafter for all fire alarms answered by them except alarms for the purpose of training. Other sections of the ordinance provide for group insurance, repayment for loss or damage to personal property, annual expenses for the fire chief and, in a general way, for the eligibility of appointees, but such provisions are of no materiality herein. The last section of the ordinance provides that: "Any word, phrase, sentence, paragraph or section contained in this ordinance, that is in conflict with any ordinance, now in effect, or Law of the State of West Virginia is hereby declared void." Following the adoption of the ordinance, officers and members of the fire department of the Town of Marmet seem to have been paid in accordance with its provisions until July 16, 1945, at which time the Common Council of the Town of Marmet suspended the payment of salaries of the chief, assistant chief and captain. It is alleged on information and belief that the members of the fire department have been paid, but respondent in his answer alleges that no compensation has been paid to any officer or member of the fire department since July 1, 1945, and that the town now has a volunteer fire department. The original appointments of officers and members of the fire department seem to have been made without regard to Chapter 60, Acts of the Legislature, Regular Session, 1933.

Relator contends that said Chapter 60 provides the exclusive method of appointment for all personnel of a "paid fire department", and consequently that part of the ordinance giving the mayor power of appointment is of no effect. Respondent asserts that the fire department established by the ordinance is a volunteer fire department; that its members are not professional fire fighters, as contemplated by the statute; and that the provisions of the ordinance govern rather than those of the statute.

We make no inquiry whether the Common Council of the Town of Marmet legally suspended the pay of the officers of the fire department. It is sufficient to say that the salaries of the officers of the fire department of that town had been suspended when this proceeding was instituted. Payment of compensation to members of the fire department is alleged by relator, but is controverted by respondent, and no proof is offered to resolve this issue. The admission by relator as to pay of officers and the lack of proof as to pay of members militates against relator's contention and tends to show that, as a matter of fact, there was no paid fire department in the Town of Marmet at the time this proceeding was instituted.

A civil service commission passes on the eligibility of persons to be appointed to positions in a paid fire department, and consists of three commissioners, one to be appointed by the mayor of the municipality, another to be appointed by the local trades board or by the paid international association of fire-fighters, and a third to be appointed by the local chamber of commerce. Section 2, Chapter 60, Acts of the Legislature, Regular Session, 1933. The purpose of this proceeding is to compel the appointment of one commissioner, and we make no conjecture whether the other two will or will not be appointed. The appointment of only one member of the civil service commission for the Town of Marmet would be a futile act, as he would have no power to perform the duties imposed by the statute on a commissioner. Nothing appears in this record to justify a statement that there is a local trades board or a local chamber of commerce in the Town of Marmet. The issuance of the writ herein and compliance with its mandate without the appointment of another commissioner would be unavailing. Brannon v. Perky, 127 W. Va. 103, 31 S. E. 2d 898; Taylor v. Board, 119 W. Va. 378, 193 S. E. 575.

Notwithstanding the allegations of the petition and the return to the rule with reference to the pay of the officers and members of the fire department of the Town of Marmet, and the possibility that the writ would be futile if awarded, we prefer to rest our decision on this question: Do the provisions of Chapter 60, Acts of the Legislature, Regular Session, 1933, apply to the fire department established by the Common Council of the Town of Marmet? If the statute is applicable, it is the duty of the mayor to appoint a member of the civil service commission. Prichard v. D&van, 114 W. Va. 509, 172 S. E. 711. The pertinent parts of Chapter 60, Acts of the Legislature, Regular Session, 1933, are: "Appointments to and promotions in all paid fire departments of cities of any population whatsoever shall be made only according to qualification and fitness to be ascertained by examinations * * * no person shall be appointed * * * as a paid member of said fire department * * * of any city in the State of West Virginia, in any manner or by any means other than those prescribed in this act." Section 1, Chapter 60, id. "* * * There shall be a 'civil service commission' in each city or incorporated town having a fire department, any of the members of which are paid by said city or municipality. * * *." Section 2, Chapter 60, id. "* * * It is understood and intended by this act to furnish a complete and exclusive system for the appointment, promotion, reduction, removal and reinstatement of all officers, firemen or other employees of said fire departments in all cities and municipalities wherein the members of the fire department are paid." Section 19, Chapter 60, id.

Examination of the entire statute clearly discloses that the application thereof to municipalities depends upon the meaning and application of the phrase "paid fire department." That phrase has been construed and applied to variant factual situations in other jurisdictions. Continental Hose Co. v. City of Fargo, 17 N.D. 5, 114 N. W. 834; Drake v. Quinn, 48 Cal. App. 259, 119 P. 2d 796; Kotze v. Montclair Police and Firemen's Pension Commission, 9 N. J. Misc. 1298, 157 A. 150; Seavert v. Cooper, 187 Iowa 1109, 175 N. W. 19.

The purpose of the statute here considered is to promote efficiency of the personnel of paid fire departments in this State; to preclude discrimination in appointments and promotions therein based on any consideration other than fitness for the performance of the duties required; and to prevent discharge without cause. Consideration of that purpose and the provisions of the statute raises a question of legislative intent as expressed in that statute. It is therefore incumbent upon this Court to ascertain and effectuate that intent. McVey v. Telephone Co., 103 W. Va. 519, 138 S. E. 97; 2 Lewis' Sutherland Statutory Construction, 2d ed., Section 363. The legislative intent may be ascertained by excluding from the operation of the statute things included within its letter. State v. Myers, 74 W. Va. 488, 82 S. E. 270. If a statute is without ambiguity and the legislative intent is plain, there is no occasion to construe the statute; but where, as here, a literal application of the language used in the statute would lead to an absurd result, it is our duty to construe the statute so as to avoid such result and adopt a reasonable construction. Newhart v. Pennybacker, 120 W. Va. 774, 200 S. E. 350, 754. See Coal & Coke Railroad Co. v. Conley, et al, 67 W. Va. 129, 178, 67 S. E. 613. Applying the foregoing principles, we are unable to attribute to the Legislature an intent to provide a civil service commission for municipalities wherein the officers of an organized fire department are paid nominal salaries and all other members of such...