Sturm v. Seamonds, CC631.

• Citation: 9 S.E.2d 227
• Decision Date: 28 May 1940
• Docket Number: No. CC631.,CC631.
• Court: Supreme Court of West Virginia
• Parties: STURM. v. SEAMONDS, Mayor, et al.

9 S.E.2d 227

STURM.
v.
SEAMONDS, Mayor, et al.

No. CC631.

Supreme Court of Appeals of West Virginia.

May 28, 1940.

[9 S.E.2d 227]Syllabus by the Court.

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.

Certificate from Cabell County.

Mandamus action by Harley O. Sturm against George R. Seamonds, Mayor, etc., and others, to compel respondents to grant relator retirement privileges and benefits as a lawful member of the Police Department of the City of Huntington. The circuit court sustained a demurrer to relator's petition and certified the matter for review.

Reversed and remanded.

Scott & Ducker, of Huntington, for plaintiff.

Okey P. Keadle, of Huntington, for defendant.

MAXWELL, Judge.

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...