Sturm v. Seamonds
| Decision Date | 28 May 1940 |
| Docket Number | CC631. |
| Citation | 9 S.E.2d 227,122 W.Va. 338 |
| Parties | STURM v. SEAMONDS, Mayor, et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Civil service statute provision, that policemen with four years' service at time statute became effective shall be construed to have been appointed under the statute and shall hold their positions in accordance therewith, is a salutary provision intended to have a curative and a stabilizing effect, and therefore should be interpreted and applied with some degree of liberality. Code 1937, 8-5A-18.
Under civil service statute providing in effect that policemen with four years' service were automatically placed under the provisions of the statute, any irregularity in appointment of policeman of the city of Huntington who at the time of his appointment exceeded the maximum age limit set by city civil service board, but who had not misrepresented his age which was known to the board, was cured and his appointment confirmed, hence he was entitled to retirement privileges and pension benefits to compel the granting of which mandamus would lie. Code 1937, 8-5A-18, 8-6-18; Acts 1921, Municipal Charters, c. 11, §§ 75 to 78.
Section eighteen of chapter fifty-seven. of the Acts of the Legislature of 1937 (Code, 8-5A-18) provides: "All paid policemen, including officers, except chiefs of police, who have had four years' service, in any city or municipal police department, and who are employed by any city or municipality on the date this act takes effect, shall be construed to have been appointed under the provisions of this act and shall hold their positions in accordance therewith." The effect of this provision was to confirm in his position as member of the police department of the City of Huntington a patrolman who had been in service for more than four years prior to the passage of the act, though at the time of his appointment he was over the maximum age for eligibility prescribed by a regulation of the civil service board of the city, the patrolman not having misrepresented his age, and the board being informed of the facts.
Scott & Ducker, of Huntington, for plaintiff.
Okey P. Keadle, of Huntington, for defendant.
This case presents the question of the sufficiency of a petition for mandamus. The circuit court sustained a demurrer to the petition and certified the matter here for review.
The relator, Harley O. Sturm, is a policeman of the City of Huntington. The respondents, George R. Seamonds, Mayor of the City, R. C. Adkins, A. J. Baker, F. M. Mullins and L. J Swann, are trustees of the Policemen's Pension or Relief Fund of that city. By bill in equity the respondents heretofore sought judicial determination of the legal question hereinafter considered. Their bill was dismissed because of lack of equity jurisdiction. Seamonds, Mayor et al. v. Sturm, W.Va., 5 S.E.2d 788.
In his petition the relator alleges that on March 26, 1926, he was appointed patrolman in the police department of the City of Huntington and immediately entered upon the duties of his employment and remained in active service until March 12 1939, on which date, because of physical disability, he made application to the respondents for a pension; that on medical examination then had at the instance of the trustees the fact of relator's disability was officially ascertained, but the trustees refused to grant him a pension because of alleged irregularity attending his appointment as a policeman in 1926, in that the relator was at that time forty-six years and eleven months of age, whereas, there was then in existence and effect a regulation of the civil service board of the City of Huntington fixing the maximum age for eligibility to employment as a policeman at forty-five years. Further, the relator alleges that when he was appointed and preliminarily thereto he made full and correct disclosure of his age to the civil service board, nevertheless that body approved his application and, upon his having passed satisfactory examinations, recommended him for appointment as a policeman by the proper authorities of the city.
For purposes of the demurrer the allegations of the petition are to be taken as true.
The Huntington charter provisions relating to the civil service board, in effect when relator was appointed a policeman, are in sections 75 to 78 of the Huntington Charter, appearing as chapter 11 of the Acts of the West Virginia Legislature of 1921 (Municipal Charters). Under the charter section 75, the civil service board was expressly directed to "adopt rules for its own government", and, further, in that section there is this provision: "In making such examinations [for appointment to the police and fire departments] the size, health, physical appearance, habits...
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