State Ex Rel. Clark v. Dadisman , 154 W. Va. 340 ( 1970 )

Berry, Judge,

dissenting:

I respectfully dissent from the majority opinion in these mandamus proceedings because I am of the opinion that the petitioners did not comply with the mandatory statutory requirements in order to obtain the relief sought, and therefore the extraordinary proceeding in mandamus will not lie.

There is no question but that the petitioners were under Civil Seryice at the time they were discharged. The case of State ex rel. Karnes v. Dadisman, 153 W.Va. 771, 172 S.E.2d 561, so held. In the Karnes case this Court held that the Executive Order of former Governor Hulett C. Smith of January 11, 1969, placing Karnes, as well as the petitioners in these proceedings, under Civil Service was a valid Executive Order and that the Executive Order of Governor Arch A. Moore, Jr., dated July 14, 1969, attempting to invalidate the Executive Order of former Governor Smith was improper.

Code, 29-6-13, as amended, provides that any employee under Civil Service who is dismissed may appeal such dismissal to the Civil Service Commission within thirty days after such dismissal, and the rules and regulations of the Civil Service system, Article XII, Section 4, subsection 1, provide that any employee under such service shall appeal such dismissal not later than thirty days after the effective date of the dismissal. It is admitted in this proceeding that the petitioners did not appeal their dismissals within the thirty-day period as did the petitioner in the Karnes case.

The purpose of the appeal in such case is for the Civil Service Commission to ascertain whether any dismissal is without good cause in the first instance, and an appeal from such finding may be made to this Court within sixty days of the action or decision of the Civil Service Commission. Code, 29-6-13, as amended. The majority decision in this proceeding has circumvented the mandatory requirements of the statute, and has found initially that these dismissals were without good cause which should be done in the first instance by the Civil Service Commission.

The writ of mandamus was granted, in the Karnes, case to compel the Civil Service Commission to give Karnes a hearing to determine if he had been dismissed for good cause. The writs granted by this Court in these proceedings place the petitioners back in. their former positions with back pay without a written appeal having been filed with the Commission within thirty days as required by statute and without any hearing having been held by the Civil Service Commission to determine whether or not the dismissals were for good cause as required by the statute. In the almost identical case of State ex rel. Jones v. City of Nashville et al., 198 Tenn. 280, 279 S.W.2d 267, the Supreme Court of Tennessee refused to grant a writ of mandamus, saying that a record as to reason for dismissal should have first been made before the Civil Service Commission.

In other words, the mandatory administrative procedure was not followed in these cases, and therefore there would not be a clear legal right for the issuance of the writs of mandamus to restore these petitioners to their former or like status and pay.

For this reason, I would refuse to grant the writs.