Zigmond v. Civil Service Commission, 13140

• Court: Supreme Court of West Virginia
• Writing for the Court: BERRY
• Citation: 186 S.E.2d 696,155 W.Va. 641
• Parties: Joe ZIGMOND v. CIVIL SERVICE COMMISSION of West Virginia et al.
• Docket Number: No. 13140,13140
• Decision Date: 15 February 1972

Page 696

186 S.E.2d 696 155 W.Va. 641 Joe ZIGMOND
v.
CIVIL SERVICE COMMISSION of West Virginia et al. No. 13140. Supreme Court of Appeals of West Virginia. Submitted Jan. 18, 1972.
Decided Feb. 15, 1972.

Page 697

Syllabus by the Court

1. 'A general statute, which does not use express terms or employ words which manifest a plain intention so to do, will not repeal a former statute dealing with a particular subject, and the two statutes will operate together unless the conflict between them is so real and irreconcilable as to indicate a clear legislative purpose to repeal the former statute.' Point 6, syllabus, Harbert v. County Court, 129 W.Va. 54, 39 S.E.2d 177.

2. An order of the Civil Service Commission reinstating an employee covered under the Civil Service System in a classified position is binding on the appointing authority, and such employer must reinstate the employee in the covered position or one of like status and pay.

[155 W.Va. 642] 3. The Alcohol Beverage Control Commissioner has the right to effect proper transfers of employees geographically where needed, if they are placed in the same classification and pay, and if the employee refuses to adhere to the transfer without good reason he can be dismissed by the employer for such action.

W. Bernard Smith, Logan, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., Dennis R. Vaughan, Jr., Sp. Asst. Atty. Gen., Hanna, Ross & Vaughan, Charleston, for appellees.

BERRY, Judge:

This is an appeal from an order of the Civil Service Commission of West Virginia of May 28, 1971 affirming the dismissal of the petitioner. Joe Zigmond, as an employee of the Alcohol Beverage Control Commissioner of West Virginia. On October 4, 1971 this Court granted an appeal to the petitioner. The respondents on October 14, 1971 filed a written motion to dismiss the appeal, contending that it had been improvidently granted because the appeal procedure followed under Code, 29--6--13, as amended, providing for a direct appeal to the Supreme Court, was repealed by Code, 29A--7--3 as amended. The respondents contend that Code, 29A--7--3, as amended, provides for an appeal to the Circuit Court, and then to the Supreme Court, and that since that procedure was not followed this Court had no jurisdiction to hear the appeal. The petitioner filed a motion for leave to move to reverse the judgment of the Civil Service Commission, which motion was granted and the case was docketed for hearing on the motion to reverse and the case was submitted for [155 W.Va. 643] decision on arguments and briefs of the parties January 19, 1972.

The petitioner was dismissed from his position as cashier at the Logan store of the Alcohol Beverage Control Commissioner on January 20, 1969, without being furnished reasons for his dismissal in writing. The petitioner filed an appeal with the Civil Service Commission of West Virginia, and after a hearing held on said appeal the Commission, on August 18, 1970, ordered the petitioner reinstated to his position, or a position of like status and pay, without loss of pay for the period of his suspension. By letter dated August 28, 1970 the Alcohol Beverage Control Commissioner advised the petitioner that in accordance with the decision of the West Virginia Civil Service Commission on August 18, 1970 the petitioner had been properly reinstated as an employee of the Alcohol Beverage Control Commissioner, and that he was expected to report for work at 8 o'clock a.m. on September 1, 1970, at the Princeton store. The petitioner did not receive this letter until August 31, 1970.

The petitioner did not report for work in accordance with the notification of the

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Commissioner, and on September 16, 1970 petitioner's counsel notified the Alcohol Beverage Control Commissioner of his objections to the assignment to work at the Princeton store. Petitioner's counsel contended that the position in the Princeton store was not a position of like status and pay and that the petitioner's notice received on August 31, 1970 to report for work the next day was unreasonable. The petitioner was notified by letter dated September 25, 1970 and signed by George W. Spruce, Director of Personnel of the Alcohol Beverage Control Commissioner, that his employment was officially terminated because of his failure to report for work at the Princeton store, and also that the Civil Service Commission had advised Spruce by letter that the petitioner had failed his civil service examination.

The petitioner filed a timely appeal with the Civil Service Commission of West Virginia which heard the case [155 W.Va. 644] on May 11, 1971 and found that the petitioner was not justified in the refusal to report for work at the Princeton store and that the position assigned to the...