Stowers v. Blackburn

• Citation: 141 W.Va. 328,90 S.E.2d 277
• Decision Date: 22 November 1955
• Docket Number: No. 10755,10755
• Parties: Claude STOWERS v. William F. BLACKBURN et al.
• Court: Supreme Court of West Virginia

Page 277

90 S.E.2d 277

141 W.Va. 328

Claude STOWERS v. William F. BLACKBURN et al.

No. 10755.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1955.

Decided Nov. 22, 1955.

Syllabus by the Court.

1. Mandamus is the proper remedy to admit or restore to office a person who shows a clear legal right to the office and is wrongfully excluded from it.

2. Mandamus will not be denied because there is another remedy, unless such other remedy is equally beneficial, convenient and effective.

3. A person is a de facto officer when he is in possession of an office and discharges its functions under color of authority.

4. The acts of a de facto officer, as to the public and third persons, are as valid as if he were a de jure officer.

5. Except when a vacancy in a public office occurs by refusal to accept the office, by expiration of the term, by death, resignation or removal of the incumbent, or by disqualification of the incumbent by express legislation, a vacancy in such office does not exist until it is declared by competent authority.

6. Two persons can not, at the same time, be in the actual occupation and exercise of an office, as officers de facto, when the law provides for only one incumbent.

7. A person who is neither a de jure nor a de facto member of the civil service commission of a municipality composed of three commissioners, but who assumes to act at a hearing by it to consider the action of the council of the municipality in removing the chief of its fire department, is not entitled to vote as a member of the commission; and the decision of the commission, based upon the invalid vote of such person and the valid vote of a de facto member to affirm, and the valid vote of a de jury member not to affirm, the action of the council, does not sustain the action of the council in removing the chief of the fire department. Under Section 13, Article 6A, Chapter 88, Acts of the Legislature, Regular Session, 1949, the failure of the commission, by a valid vote of a majority of its members, to justify the action of the council in removing the chief of the fire department, reinstates him in that office with full pay for the entire period during which he may have been prevented from performing his usual employment.

Hiram G. Williamson, Williamson, for relator.

J. Brooks Lawson, Williamson, for respondents.

HAYMOND, Judge.

This is an original proceeding in mandamus instituted in this Court in which the petitioner, Claude Stowers, seeks a writ to require the defendants, William F. Blackburn, Kenneth W. Eaton, Walter McCoy Calvin Slone, members, and John Layne, mayor and member, of the Council of the City of Williamson, West Virginia, a municipal corporation, to restore and reinstate him to the office of chief of the fire department of that city, from which office the petitioner contends he was illegally removed by the council as of September 11, 1954 and by the invalid action of the civil service commission of that city in affirming such removal on October 25, 1954, after a hearing of the charges preferred against him by the council, and to require the defendants to take the necessary action to pay the petitioner his salary from the date of his wrongful removal on September 11, 1954.

At the time the petitioner was notified of his removal by the council on September 14, 1954, and when his removal was affirmed by the commission on October 25, 1954, P. B. Maynard was mayor of the city and he, Wallace W. Farley, Leonard Esteppe and John Layne were members of the council. The defendant John Layne is the present successor in office of P. B. Maynard, whose term as mayor has expired, and the defendants William F. Blackburn, Kenneth W. Eatson, Walter McCoy and Calvin Slone are the present members of the council and the successors in office of Wallace W. Farley, Leonard Esteppe and the other former members of the council whose terms of office have also expired.

Upon the petition filed July 27, 1955, this Court issued a rule against the defendants returnable September 7, 1955. On September 2, 1955, the defendants filed their demurrer and their answer to the petition and on September 7, 1955, this proceeding was submitted for decision upon the foregoing pleadings, written stipulation by the attorneys for the parties relating to the record, and the briefs and the oral arguments of the attorneys in behalf of the respective parties. By leave of this Court a brief has been filed by H. L. Ducker, an attorney at law, in behalf of the International Association of Fire Fighters as amicus curiae.

On September 14, 1954, the petitioner, who had been previously appointed to the office of chief of the fire department of the City of Williamson and was then occupying and performing the duties of that office, was notified in writing by the mayor and a majority of the members of the council then in office that he was suspended from duty as chief of the fire department as of September 11, 1954. This notice, which was served upon the petitioner on September 14, 1954, specified several separate acts of misconduct for which the petitioner was suspended from office.

On September 17, 1954, the petitioner filed his answer denying the charges stated in the notice, and demanded a hearing before the civil service commission of the City of Williamson, the membership of which was then composed of Claude Weaver, Chairman, W. E. White and Paul Hayes, and the hearing of the charges before the commission was set for September 27, 1954. On that date the hearing was continued until October 8, 1954. Evidence was introduced on October 8, 9 and 11, when the hearing was concluded and, on October 25, 1954, the commission, by a vote of two to one, found against the petitioner on one of the charges specified in the notice to the petitioner and affirmed his removal from office.

On September 17, 1954, the then Mayor of the City of Williamson, P. B. Maynard, removed Hayes from the commission, to which he had been appointed on January 7, 1954, by Henry T. Hammond, then acting as mayor, after this Court, in Maynard v. Hammond, 139 W.Va. 230, 79 S.E.2d 295, an election contest between Maynard and Hammond involving the right claimed by each of them to the office of mayor of the City of Williamson, had held on December 21, 1953, that Maynard was entitled to that office and had ordered Hammond to vacate it. On September 21, 1954, Maynard filed his petition seeking confirmation of his action in the Circuit Court of Mingo County. By final order entered October 8, 1954, the operation of which was suspended for a period of ninety days, the circuit court confirmed the action of the mayor in removing Hayes from the commission. Hayes obtained an appeal to this Court from that order and during the pendency of the appeal this proceeding was submitted for decision. Upon the appeal the order of the circuit court was reversed and set aside for the reason that no good cause for removal was alleged or established and that proceeding was remanded with directions to that court to dismiss the proceeding. Layne v. Hayes, W.Va., 90 S.E.2d 270.

On October 8, 1954, while the suspension of the order of the circuit court was in effect, P. B. Maynard, then the mayor of the municipality, appointed Leslie Phillips a member of the commission to fill the purported vacancy caused by the removal of Hayes and on that day Phillips, who evidently had knowledge of the pendency of the removal proceeding against Hayes, took the oath of office and, over the objection of the petitioner, assumed to act as a member of the commission during the hearing by it of the charges against the petitioner and cast one of the two votes by which the removal of the petitioner was affirmed by the commission. The petitioner sought an appeal from the order of the commission of October 25, 1954, but the appeal was refused by the circuit court because the petition was not filed within ninety days after the entry of the final order of the commission.

After the entry of the final order of the commission, it appeared that Weaver was a member of a political committee of the City of Williamson and as such was disqualified to hold office as a member of the commission. Weaver then resigned from that office and Victor O. Gruber was appointed a member of the commission as his successor. On May 2, 1955, with White, Gruber and Phillips acting as its members, by a vote of two to one, Phillips casting the dissenting vote, the commission suspended the petitioner for a period of sixty days from September 11, 1954. The order of the commission, entered May 2, 1955, provided that as the original suspension of the petitioner had then exceeded that period, he should be restored to the office of chief of the fire department of the city as of May 2, 1955, and that he was entitled to all the rights, privileges and emoluments of the office according to law. The mayor and the council refused to restore the petitioner to office, as directed by the order of the commission of May 2, 1955, and the petitioner instituted this proceeding in this Court on July 27, 1955.

In support of his application for a writ of mandamus the petitioner in effect contends: (1) That the action of the commission in affirming his removal by its order of October 25, 1954, by a two to one vote of the members present and assuming to act as such was not the valid action of a majority of its members required by Section 13, Article 6A, Chapter 88, Acts of the Legislature, Regular Session, 1949; (2) that Weaver, who cast one of the two votes, was disqualified to hold the office of a member of the commission; (3) that, as Hayes had not been validly and finally removed from his office as a member of the commission because of the suspension of the order of the circuit court and the pendency of his appeal from that order to this Court, no vacancy existed in that office; (4) that the appointment of Phillips, as his successor, was void; (5) that Phillips, who...