State v. The City Of Charleston, (No. 10139)

• Decision Date: 29 November 1949
• Docket Number: (No. 10139)
• Citation: 133 W.Va. 420
• Parties: State, ex rel. West Virginia State Lodge, FraternalOrder of Police, et al. v. The City of Charleston, et al.
• Court: West Virginia Supreme Court

133 W.Va. 420

State, ex rel. West Virginia State Lodge, FraternalOrder of Police, et al.

v.The City of Charleston, et al.

(No. 10139)

Supreme Court of Appeals of West Virginia.

Submitted October 4, 1949.

Decided November 29, 1949.

Submitted October 4, 1949. Decided November 29, 1949.

1. Associations

A voluntary unincorporated association or society, not shown to be within the provisions of Code, 33-8, or Code, 35-2, is not a legal entity, and may not prosecute a suit, action or proceeding in its name.

2. Municipal Corporations

A member of a paid police department, covered by the provisions of Chapter 57, Acts of the Legislature, 1937, may, as an individual, sue to enforce his rights under said statute, where the same are alleged to be violated by the municipality in which he holds appointment as a police officer.

3. Municipal Corporations

The City of Charleston, a municipal corporation, possesses no inherent or granted powers to appoint a special policeman, or to accept a bond covering such position, or to authorize, in any way, the carrying of arms or the making of arrests within the city by such special policeman. Such action would violate the provisions of Chapter 57, Acts of the Legislature, 1937, and Article 7 of Chapter 61 of the Code.

4. Mandamus

One who seeks a peremptory writ of mandamus must show

a clear legal right thereto.

5. Mandamus

Where, on an application for a peremptory writ of mandamus, the evidence adduced in support of, and in opposition to, the issuance of the writ is both confusing and conflicting, the writ will be denied, unless the evidence in support of the issuance of the writ plainly preponderates.

6. Appeal and Error

A judgment or decree of a trial court, rendered on conflicting evidence, in a suit, action or proceeding tried before it, which involves issues of fact, will not be disturbed by this Court, unless plainly wrong, or without any evidence to support it.

The State, on the relation of West Virginia State Lodge, Fraternal Order of Police, and others sued the City of Charleston and others for a writ of mandamus directing the respondents to cancel appointments of special policemen.

The Court of Common Pleas of Kanawha County denied the writ, and the Circuit Court of Kanawha County denied a writ of error, and the Supreme Court of Appeals granted a writ of error.

Affirmed.

Lovins, Judge, not participating. Riley, Judge, concurring.

J. Campbell Palmer, III, for plaintiffs in error.

John J. D. Preston, John L. Goshorn, for defendants in error.

422 State Lodge v. City of Charleston [Nov. 1949 Fox, Judge:

The West Virginia State Lodge, Fraternal Order of Police, Capitol City Lodge No. 74, Fraternal Order of Police, and Herman Fraser and James Gullian, individually, complain of an order of the Court of Common Pleas of Kanawha County, dated May 25, 1948, entered in a mandamus proceeding in which they were relators, and the City of Charleston, a municipal corporation, and R. Carl Andrews, its Mayor, and John T. Moore, its City Manager, were respondents. Said order denied the writ of mandamus prayed for. A writ of error to such judgment was denied by the Circuit Court of Kanawha County, to which order of denial this Court, on February 7, 1949, granted this writ of error.

On February 18, 1948, the relators below, now the plaintiffs in error, filed in said Common Pleas Court their petition, duly verified, seeking a writ of mandamus to compel the City of Charleston, its Mayor and City Manager, to revoke certain alleged appointments of special policemen in the City of Charleston, and for other relief, basing its claim for relief on the provisions of Chapter 57, Acts of the Legislature, 1937, relating to appointments and promotions in paid police departments, and generally providing for a civil service system for police departments in cities of more than five thousand population. The petition filed by relators alleges the existence of the West Virginia State Lodge, Fraternal Order of Police, and that Herman Fraser, a resident of Huntington, West Virginia, and a sergeant in the police department of that city, was its duly elected and authorized president; also the existence of Capitol City Lodge No.74, Fraternal Order of Police, and that James Gullian, a citizen and resident of the City of Charleston, serving as a patrolman on the police force of said city, was president of said lodge, and that both said officials were authorized to institute the proceedings in the name of their respective organizations; and that the City of Charleston was a municipal corporation organized under the laws of the State of West Vir- ginia of which R. Carl Andrews was Mayor, and John T. Moore City Manager.

The petition then incorrectly alleges the enactment of Article 5-A, Chapter 8, Code of West Virginia, entitled, "Civil Service for Police Departments" at the regular session of the Legislature in 1947; whereas, in fact, the statute referred to was passed as Chapter 57, Acts of the Legislature, 1937, without incorporation into the official Code of West Virginia as Article 5-A, Chapter 8, although incorporated as such in Michie Code, 1949. At any rate, it specifically alleges the provisions of Section 1 of said Act which provides that:

"All appointments to and promotions in all paid police departments of cities and municipalities of five thousand population or more, shall be made only according to qualifications and fitness to be ascertained by examinations, which, so far as practicable, shall be competitive, as hereinafter provided. On and after the date this act takes effect no person except the chief of police shall be appointed, reinstated, promoted or discharged as a paid member of said department of any city or municipality in the State of West Virginia subject to the provisions hereof, in any manner or by any means other than those prescribed in this act."

It also alleges the provisions of Section 20 of Chapter 57, aforesaid, which provides that:

"All acts and parts of acts of the Legislature of the State of West Virginia, general, special, local or municipal charters, or parts thereof, in relation to any civil service measure affecting the paid police departments of any city or municipality inconsistent with this act shall be, and the same are hereby repealed insofar as such inconsistencies shall exist. * * *"

And it further alleges that a provision of the charter of the City of Charleston, designated as Section 85 which provides that:

"The Mayor shall appoint such number of policemen as are or may be hereafter prescribed by the city council by ordinance, and the mayor shall have at his discretion, the absolute right and power to dismiss any policeman and appoint another in his stead."

was repealed by Section 20, aforesaid.

The petition then alleges that for some years prior to the filing thereof, the City of Charleston, and its then Mayor, and since May, 1947, its present Mayor and City Manager, had appointed large numbers, to-wit, forty or more, so-called "special policemen" for the City of Charleston; that such appointments had been made to drivers of certain armored cars which carry money to and from banks; to certain private detectives working in, or as a part of the West Virginia Investigation Bureau; to certain other so-called private detectives; and to members of fraternal orders, to city councilmen and to others. Further, that these appointees were permitted to wear badges identical with badges worn by members of the paid police department of the City of Charleston; that they were permitted to give bond, approved by the council of the City of Charleston, to act as such special policemen; permitted in many instances to wear uniforms identical with those worn by the members of the regular paid police department; and to have all of the powers and rights of members of the regular police department, including the power to arrest, the authority to carry concealed and deadly weapons, and to otherwise act as members of the paid police department. Also, that such persons had taken their orders directly from the Mayor, or directly from employers, or had acted in individual capacities. It is alleged that such practice was in violation of the provisions of Article 7, Chapter 61 of the Code, relating to the carrying of dangerous weapons. The petition further alleges that for more than a year prior to the filing thereof the matters aforesaid and the violations of law involved had been called to the attention of the respondents, without any proper steps having been taken to correct the situation alleged to so exist; and averred, in effect, that the Mayor and City Manager of the City of Charles- Nov. 1949]

State Lodge v. City of Charleston 425

ton were under a legal duty to enforce the laws of the State, especially the provisions of Chapter 57 of the Acts of the Legislature, 1937, aforesaid; and to dismiss all special policemen, call in all police badges improperly distributed, and declare null and void all bonds executed by appointees as special policemen; but that they had refused to do so, and continued to disobey such laws and especially to disobey the law in relation to civil service for policemen.

The prayer of the petitioner is that the respondents be commanded:

"* * * to obey the laws of the State of West Virginia as enacted in Article 5-A, Chapter 8, Code of West Virginia, [Chapter 57, Acts of the Legislature, 1937] in that said respondents shall immediately revoke the appointments of all persons heretofore designated as 'Special Policemen' of the City of Charleston, shall immediately call in and take up the police badges given to all such persons, shall immediately revoke the bonds given by such persons to the City of Charleston, shall immediately cause all such persons who are not properly licensed under article 7, chapter 61, Code of West Virginia to possess and carry deadly and concealed weapons to cease to carry such weapons, shall immediately cause all such persons to refrain from wearing...