Carpenter v. City of Kenova

H. V. Carpenter, J. H. Napier, E. E. Brown and William Jordan, former employees of the city of Kenova, seek by mandamus to compel the city to pay them certain sums of money alleged to be due by reason of an alleged civil service status as firemen, under Chapter 60, Acts (Regular session) 1933.

The act aforesaid, passed March 11, 1933, provides for the creation and maintenance of a civil service commission in all cities and municipalities of the state having a fire department, any of the members of which are paid by said city or municipality, and, subject to certain provisions, invests said commission with the power of appointment, promotion, demotion and discharge of employees of said department. And, by section 18, thereof, all paid firemen on the date of passage of the act are to be construed to have been appointed thereunder.

The city appointments under which relators were serving on March 11, 1933, expired at midnight, June 30, 1933. The new council, which took office July 1, 1933, neither recognized the relators' alleged rights under the act, nor re-appointed them.

Even if Carpenter, Napier and Brown had shown themselves to be paid firemen as contemplated by the act, which we are of opinion they have not, they, together with Jordan, the latter a recognized fireman, retain their alleged status under the act, if at all, by virtue of section 18.

Since the filing of the petition herein, this Court, on January 16, 1934, held that section 18 of the aforesaid act was unconstitutional, on the ground that it attempted to make political tests a prerequisite to the enjoyment of political rights, in contravention of Article III, section 11, West Virginia Constitution. Prichard v. DeVan, Mayor, 114 W. Va. 509,172 S.E. 711. That section being unconstitutional, the relators' whole case falls.

Writ denied.