State ex rel. City of Huntington v. Lombardo

Calhoun, Judge:

The basic question presented for decision in this original proceeding in prohibition is whether Joshua Adkins, a member of the police force of the City of Huntington, is entitled to a public hearing before the police civil service commission of that city in relation to his .previous suspension, as a disciplinary measure, for a period of five days.

The' relators in the prohibition proceeding are Edward A. Ewing, city manager, and Esmond E. Harper, chief of police. The respondents are Frank J. 'Lombardo, Boyce W. Earnhardt and C. McD. England, members of the police civil service commission, and Joshua Adkins, the policeman who was suspended.

On March 11, 1965, the chief of police gave written notice to Joshua Adkins that he would be suspended for a period of five days commencing March 15, 1965, because of certain infractions of the city code pertaining to the operation of the police department. The alleged infractions were stated specifically in the written notice. On March 17, 1965, Edward A. Ewing, city manager, gave a written notice to Adkins that Ewing, as city manager, had investigated the facts pertaining to the suspension and that he, in his capacity as city manager, upheld the suspension which had been ordered by the chief of police.

On March 19, 1965, Adkins filed with the police civil service commission an answer in writing to the charges made against him and requested a public hearing, pursuant to the provisions of Section 13, Article 5A, Chapter 8 of Code, 1931, as amended. In response to Adkins’ request, the police civil service commission notified all persons in interest that a public hearing would be held on March 24, 1965, at 11 a. m. in the municipal council chambers. On that date it was determined’ that one member of the police civil service commission was absent and, therefore, all matters pertaining to the proposed public hearing were continued to 9:30 a. m. on April 3, 1965.

On March 30, 1965, the petition in the prohibition proceeding was presented to this Court. The purpose of the proceeding is to prohibit the police civil service commission from proceeding further on the ground that it lacks jtxris-diction to hold a public hearing in a case involving a mere suspension of a police officer, A rule to show cause was granted and made returnable before the Court on April 27, 1965, and further proceedings before the commission were suspended by order of this Court. The matter was continued from that date to May 11, 1965, at which time the case was submitted to the Court for decision on briefs and oral argument of counsel. In addition to briefs filed in behalf of the relators and in behalf of the members of the police civil service commission, amici curiae briefs were filed, by permission of the Court, in behalf of the City of Wheeling; in behalf of West Virginia State Lodge of Police and its president; and in behalf of Fraternal Order of Police, Gold Star Lodge No. 65 of Huntington. The brief in behalf of the City of Wheeling was presented in support of the prayer of the prohibition petition. The other two amici curiae briefs were presented in opposition to the prayer of the petition. Joshua Adkins, the suspended policeman, was not represented by counsel in this Court, though, on the day set for oral argument and submission of the case, he appeared in person and, upon his request, was permitted to speak briefly in his own behalf.

The members of the municipal police civil service commission filed an answer and a demurrer to the prohibition petition. There is no material dispute concerning the facts. The demurrer raises legal questions as follows: (1) The proceeding in prohibition is premature because the police civil service commission has not yet held a public hearing or made a ruling in relation to Adkins’ suspension; (2) the relators have failed to avail themselves of other remedies, such as certiorari, and consequently prohibition is not available as a remedy; (3) there has been no abuse of the administrative power or authority granted to the police civil service commission by the legislature; (4) the proposed public hearing is an administrative function, the performance of which cannot be prevented, controlled or reviewed by a proceeding in prohibition; and (5) the rela-tors have shown no clear legal right to the relief which they seek and, therefore, prohibition will not lie.

It is not denied that the suspension of Adkins by the chief of police, and the approval of the suspension by the city manager, from a procedural standpoint, were in accordance with the provisions of the city code and regulations pertaining to such matters. The pertinent portion of the city code is quoted and made a part of the answer filed by the police civil service commission. We are not here concerned with the validity or truth of the charges made against Adkins as a basis for his temporary suspension. The case involves primarily a construction of pertinent statutes enacted by the legislature. The construction of the statutes has resulted in a contrariety of rulings by municipal police civil service commissions and by circuit courts in the state. An opinion prepared by the attorney general has expressed the view that a municipal police civil service commission has no jurisdiction to hold a public hearing in a case of this nature involving only a temporary suspension of a city policeman. All the briefs emphasize the need for a decision by this Court of the basic question presented in the interest of uniformity in the construction and application of the pertinent statutes.

In oral argument it was agreed that Adkins resumed his position and duties as a policeman at the expiration of the five-day period, but that the temporary suspension, unless reversed, will become a part of his police service record. If the temporary suspension was legally unjustified, there may remain a question of his right to compensation during the period of his suspension. In these circumstances it is not contended that the case has become moot merely because of the expiration of the period of suspension and it will not be so regarded by this Court. State ex rel. Hedrick v. Board of Commissioners of County of Ohio, 146 W. Va. 79, 118 S. E. 2d 73; Wyckoff v. Painter, 145 W. Va. 310, 316, 115 S. E. 2d 80, 85.

Article 5A of Chapter 8 of Code, 1931, as amended, deals with civil service for municipal police departments. Section 1 is, in part, as follows: “* * * On and after the date this article takes effect no person except the chief of police shall be appointed, reinstated, promoted or discharged as a paid member of said department of any city or municipality in the State of West Virginia subject to the provisions hereof, in any manner or by any means other than those prescribed in this article.” (Italics supplied.) Section 19 is, in part, as follows: “It is understood and intended by this act to furnish a complete and exclusive system for the appointment, promotion, reduction, removal and reinstatement of all officers, policemen or other employees of said police department in all cities and municipalities of five thousand population or more, wherein the members of the police department are paid.” (Italics supplied.)

Section 13 of Article 5A, contains the provisions which primarily involve the question of statutory construction presented for decision in this case. That section, subject to omission of portions not deemed pertinent, is as follows:

“No member of any police department within the terms of this article shall be removed, discharged or reduced in rank or pay except for just cause, * * *; further, no such employee shall be removed, discharged or reduced except as provided in this article, and in no event until he shall have been furnished with a written statement of the reasons for such action. In every case of such removal or reduction, a copy of the statement of reasons therefor and of the written answer thereto, if the person sought to be removed desires to file such written answer, shall be furnished to the civil service commission and entered upon its records. If the person sought to he removed or reduced shall demand it, the civil service commission shall grant him a public hearing, * * *. At such hearing the burden shall be upon the removing officer to justify his action and in event that the civil service commission finds the action of the removing officer unjustified, then the person removed shall be reinstated with full pay for the entire period during which he may have been prevented from performing his usual employment, and no charges shall be officially recorded against his record. * * *

“* * * Provided, however, that if for reasons of economy or other reasons it shall be deemed necessary by any city or municipality to reduce the number of paid members of any police department then said municipality shall follow the following procedure:

* * *

“* * * then reduction in members of the said police department * * * shall be effected by suspending the last man or men, including probationers, that have been appointed to said police department. Such removal shall he accomplished by suspending the number desired in the inverse order of their appointment: Provided, further, that in event the said police department shall again be increased in numbers to the strength existing prior to such reduction of members the policemen suspended under the terms of this article shall be reinstated in the inverse order of their suspension before any new appointments to said police department shall be made.” (Italics supplied.)

This Court has original jurisdiction in cases of habeas corpus, mandamus and prohibition. Constitution, Article VIII, Section 3; Code, 1931, 51-1-3. Circuit courts are granted jurisdiction to supervise and control “all proceedings before justices and other inferior tribunals, by mandamus, prohibition and certiorari.” Constitution, Article VIII, Section 12; Code, 1931, 51-2-2. See also Code, 1931, 53-1-2. The writ of prohibition lies as a matter of right in all cases of usurpation and abuse of power “when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.” Code, 1931, 53-1-1.

Section 21 of Article VIII of the Constitution provides that such parts of common law as were in force when that article became effective “shall be and continue the law 'of the State until altered or repealed by the Legislature.” It follows, therefore, that the Constitution conferred upon this Court and. upon circuit courts jurisdiction in prohibition as that remedy was known at common law. Buskirk v. Judge of Circuit Court, 7 W. Va. 91, 105; Johnston v. Hunter, 50 W. Va. 52, 53, 40 S. E. 448, 449. “Prohibition, at common law, was a remedy against encroachment of jurisdiction. Its office was to restrain subordinate courts and inferior' judicial tribunals from extending their jurisdiction, and, in adopting the remedy, the courts have almost universally preserved its original common law nature, object and function. Thus, as a rule, its proper function is to prevent courts, or other tribunals, officers, or'persons from usurping or exercising a jurisdiction with which they are not vested by law, and to confine them to the exercise of those powers legally conferred. * * 73 C. J. S., Prohibition, Section 2b, page 10. See also 42 Am. Jur., Prohibition, Section 11, page 150, and Section 14, p. 153.

Early in the history of the state, this Court held: “The writ of prohibition lies from a superior court, not only to inferior judicial tribunals properly and technically denominated such, but also to inferior ministerial tribunals, possessing incidentally judicial powers, such as are known in law as quasi judicial tribunals, and even, in extreme cases, to purely ministerial bodies, when they attempt to usurp judicial functions.” Fleming v. Commissioners, 31 W. Va. 608, pt. 1 syl., 8 S. E. 267. Substantially to the same effect, see Brazie v. Fayette County Commissioners, 25 W. Va. 213, pt. 2 syl.; Brown v. Board of Election Canvassers of Randolph County, 45 W. Va. 826, syl., 32 S. E. 168; Board of Education of Black Fork District v. Holt, 51 W. Va. 435, pt. 3 syl., 41 S. E. 337; Moore v. Holt, 55 W. Va. 507, pt. 2 syl., 47 S. E. 251; Town of Hawk’s Nest v. County Court of Fayette County, 55 W. Va. 689, 691, 48 S. E. 205, 206; Huntington Chamber of Commerce v. Public Service Commission, 84 W. Va. 81, pt. 2 syl., 99 S. E. 285; Langfitt v. Doddridge County Court, 86 W. Va. 316, pt. 1 syl., 103 S. E. 105; State, etc. v. Blankenship, 93 W. Va. 273, pt. 2 syl., 116 S. E. 524; United States Steel Corp. v. Stokes, 138 W. Va. 506, 512, 76 S. E. 2d 474, 477; State, etc. v. W. Va. State Board of Examiners for Registered Nurses, 136 W. Va. 88, 101, 66 S. E. 2d 1, 9; West Va. State Medical Ass’n. v. Public Health Council of W. Va., 125 W. Va. 152, 155-156, 23 S. E. 2d 609, 611. It is equally clear that prohibition will not lie to prevent performance of acts which are purely administrative in character, as distinguished from acts of a judicial or quasi judicial character. United States Steel Corp. v. Stokes, 138 W. Va. 506, pt. 2 syl., 76 S. E. 2d 474; Wiseman v. Calvert, 134 W. Va. 303, pt. 4 syl., 59 S. E. 2d 445; State, etc. v. Mingo County Court, 97 W. Va. 615, pt. 2 syl., 125 S. E. 576; Baker v. O’Brien, 79 W. Va. 101, pt. 3 syl., 90 S. E. 543; Campbell v. Doolittle, 58 W. Va. 317, pt. 2 syl., 52 S. E. 260; Williamson et al. v. Mingo County Court, 56 W. Va. 38, pts. 2 and 3 syl., 48 S. E. 835; Hassinger v. Holt, 47 W. Va. 348, pt. 3 syl., 34 S. E. 728. Prohibition is a preventive remedy. State, etc. v. Newman, 85 W. Va. 423, pt. 2 syl., 102 S. E. 122; Haldeman v. Davis, 28 W. Va. 324, pt. 4 syl.

It has been held that the police civil service commission of Huntington is an “inferior tribunal” within the meaning of a statute authorizing the circuit court to review its action by certiorari. City of Huntington v. Smith, 124 W. Va. 175, 19 S. E. 2d 581. The Court has also held that prohibition lies against the police civil service commission of that city. Fiedler v. Thackston, 126 W. Va. 84, 27 S. E. 2d 278.

The writ of prohibition is purely jurisdictional; it does not he to correct mere errors; and it cannot be allowed to usurp the functions of appeal, writ of error or certiorari. State, etc. v. W. Va. State Board of Examiners for Registered Nurses, 136 W. Va. 88, 103, 66 S. E. 2d 1, 9. Where, however, the court or tribunal to be prohibited lacks jurisdiction to take any valid action or to enter any valid judgment, the writ of prohibition will issue against further proceedings by it, regardless of the existence and availability of other remedies. State, etc. v. Knapp, 143 W. Va. 896, 913, 105 S. E. 2d 569, 579; State, etc. v. Easley, 129 W. Va. 410, 414, 40 S. E. 2d 827, 830; Lake O’Woods v. Wilhelm, 126 W. Va. 447, pt. 1 syl., 28 S. E. 2d 915; White Sulphur Springs, Inc. v. Jarrett, 124 W. Va. 486, pt. 2 syl., 20 S. E. 2d 794; Morris v. Calhoun, 119 W. Va. 603, 608, 195 S. E. 341, 345; Wolfe v. Shaw, 113 W. Va. 735, syl., 169 S. E. 325; Midland Investment Corporation v. Ballard, 101 W. Va. 591, pt. 3 syl., 133 S. E. 316; Jennings v. McDougle, 83 W. Va. 186, pt. 10 syl., 98 S. E. 162. One applying for relief by prohibition is not required, to wait until the lower court or tribunal has decided the question of its jurisdiction to proceed. Weil v. Black, 76 W. Va. 685, pt. 1 syl., 86 S. E. 666. A party seeking relief by prohibition is not required, as a prerequisite to his right to proceed by prohibition, first to go through a trial or hearing in the lower court or tribunal. State, etc. v. Muntzing, 146 W. Va. 349, 359, 120 S. E. 2d 260, 266; Cosner v. See, 129 W. Va. 722, pt. 5 syl., 42 S. E. 2d 31; Thacker v. Ferguson, 127 W. Va. 177, pt. 3 syl., 32 S. E. 2d 47; Lake O’Woods Club v. Wilhelm, 126 W. Va. 447, 28 S. E. 2d 915; White Sulphur Springs, Inc. v. Jarrett, 124 W. Va. 486, pt. 2 syl., 20 S. E. 2d 794; Wolfe v. Shaw, 113 W. Va. 735, 169 S. E. 325; People’s United Telephone System v. Feltner, 87 W. Va. 71, pt. 2 syl., 104 S. E. 406; Noll v. Dailey, 72 W. Va. 520, 79 S. E. 668, 47 L. R. A. N. S. 1207.

In the circumstances of this case and in the light of the authorities previously cited, we are of the opinion and accordingly the Court holds that prohibition is a proper proceeding by which to determine whether the police civil service commission has jurisdiction to hold a public hearing, pursuant to its avowed purpose, in relation to the five-day suspension of Joshua Adkins from his position as a member of the municipal police force. It is not denied that the commission had made preparations for holding such a hearing when the petition in prohibition was presented to this Court. As a matter of fact, the basic defense to the prayer of the prohibition petition is that the commission has jurisdiction to hold such a hearing. The relators are not required, before seeking relief in prohibition, to wait until the commission shall have held a hearing or made a determination of its jurisdiction to do so. It is no defense that the relators might eventually be permitted to seek relief from the action of the commission by certiorari or appeal. In holding such a public hearing, the commission, sitting as an appellate or as a reviewing tribunal to determine whether the suspension of Joshua Adkins was warranted from a factual or legal standpoint, would be performing a function of a judicial character within the meaning of legal principles pertaining to proceedings in prohibition. We believe, therefore, that the case requires that we proceed to determine whether the police civil service commission, in holding the proposed public hearing, would be acting without jurisdiction of the subject matter or in excess of its legitimate powers.

“Jurisdiction relates to the power of a court, board, or Commission to hear and determine a. controversy presented to it, * * *.” Fraga v. State Compensation Commissioner, 125 W. Va. 107, pt. 1 syl., 23 S. E. 2d 641. The police civil service commission owes its creation and existence to statute. It has no inherent powers. It has only such powers as are conferred upon it by statute, either expressly or by necessary or fair implication. 1 Am. Jur. 2d, Administrative Law, Sections 72 and 73, pages 868-69. See also Honaker v. Board of Education, 42 W. Va. 170, pt. 1 syl., 24 S. E. 544. We have not been referred to any source of statutory power in the police civil service commission except Article 5A of Chapter 8 of Code, 1931, as amended. All portions of Article 5A which are claimed by counsel to be pertinent have been quoted previously in this opinion. Section 1 provides that no person except a chief of police “shall be appointed, reinstated, promoted or discharged” as a paid member of a police department in any manner or by any other means than as prescribed by Article 5A. Section 19 provides that it is understood and intended by the provisions contained in Article 5A to furnish a complete and exclusive system “for the appointment, promotion, reduction, removal and reinstatement” of all officers, policemen or other employees of police departments in all municipalities having populations of five thousand or more. No form of the verb “suspend” is used in any portion of Article 5A, except in the latter portion of Section 13, which portion deals with reduction in the number of members of a police department for reasons of economy or for other reasons. It is there provided that in such circumstances the reduction in numbers shall be effected by “suspending” the last man or men appointed and by “suspending” the number desired in the inverse order of their appointment; and that in the event of an increase in numbers to the previous strength of the police force, the policemen “suspended” shall be reinstated in the inverse order of their “suspension” before any new appointments are made. It seems to be agreed that the statutory language most directly applicable to this case is found in Section 13.

Section 13 states that no member of any police department within the terms of Article 5A shall be “removed, discharged or reduced in rank or pay” except for just cause; and that no employee shall be “removed, discharged or reduced” except as provided in that article. It is contended that it must be assumed that the legislature intended that the words “removed” and “discharged” should not be regarded as synonymous, but rather that they were intended to have different meanings. However, the next sentence in Section 13 states that in every case of “such removal or reduction,” a copy of the statement of reasons therefor shall be furnished to the commission and, if the person sought to be “removed” desires to file a written answer, a copy of the answer shall be furnished to the commission. It will be noted that the earlier sentence uses the three words, “removed, discharged or reduced;” whereas the next succeeding sentence omits the use of any form of the verb “discharge,” and refers only to “such removal or reduction.” The words, “such removal or reduction” can refer only to the previous words “removed, discharged or reduced in rank or pay” and to the words “removed, discharged or reduced.” This, we believe, strongly tends to indicate that the word “discharged” was not intended to have any meaning beyond that embraced in the use of the words “removed” and “reduced.” The word “reduced” obviously refers to the words “reduced in rank or pay,” which are found in the very first part of the article.

Section 5 deals with the powers and duties of the police civil service commission, but it makes no reference to any authority in the commission to grant or to conduct a public hearing in any circumstances. The statutory grant of a right of a person to demand a public hearing, and the statutory grant to the commission of authority to hold a public hearing, are found only in the following rather restricted language of Section 13: “If the person sought to be removed or reduced shall demand it, the civil service commission shall grant him a public hearing, * * (Italics supplied). That is to say, the only language of Article 5A which grants a right to a person to demand a public hearing, and the only language conferring upon the commission power to grant and to conduct a public hearing, is restricted to a case of a “person sought to be removed or reduced.” We believe we would make an unwarranted invasion of the exclusive domain of the legislative branch of government if we were to read into that restricted language a grant of a right to a policeman to demand a public hearing and a grant of a power in the commission to conduct a public hearing in case of a policeman who has been merely suspended for a period of five days. We are not aware of any language in Article 5A which grants a right to a person to demand a public hearing, or which grants to the commission the power or authority to conduct a public hearing, except that portion of Section 13 which provides for the right of an individual to demand a public hearing and for power or authority in the commission to conduct a public hearing in the restricted situation of a “person sought to be removed or reduced.” The power, authority and jurisdiction of the police civil service commission being wholly dependent upon statute, we feel that we would do violence to the language of the statute if we should hold that a person who has been merely suspended for five days has a right to demand a public hearing and that the commission has power, authority and jurisdiction to conduct a public hearing in such a situation.

It is argued in behalf of the respondents that, if the municipal authorities have a right to suspend a policeman for five days without a right to a public hearing before the commission, it follows that they may similarly suspend a policeman for three months or for six months and that they may make an endless succession of frequently recurring suspensions of a similar nature, so that such suspension or suspensions would be tantamount to a removal, discharge or to a reduction in rank or pay. Whether the municipal authorities could legally suspend a policeman in such a manner, and whether such suspension or suspensions would be of such nature or character as to be tantamount to a removal or reduction so as to give a right to a public hearing before the commission, we are not called upon to decide. We do not have such a case before us for decision. All we are called upon to decide and all we do decide in that area in this case is that a mere suspension of the policeman pursuant to the municipal code for a period of five days does not amount to a removal of the policeman or a reduction in his rank or pay within the meaning of the statutory language now under consideration.

Inasmuch as a decision of the basic question in this case involves primarily a determination of legislative intent as expressed in Article 5A, and particularly in Section 13 of that article, reported decisions of other courts are of only limited value. In a similar case, involving a municipal police department, the opinion in State v. Board of Police and Fire Commissioners, 159 Wis. 295, 150 N. W. 493, contains the following language: “The statute, in thus attempting to secure a hearing and determination, must be considered to have in contemplation the hearing before an impartial tribunal; a hearing in the nature of a lawsuit or legal inquiry in which the accuser and the defendant stand as adversary parties and the board as judge and jury. It was apparently not thought necessary to require this in case of suspension. * * *” In making a distinction between removal and suspension in Murley v. Raritan Tp., 117 N. J. L. 357, 188 A. 739, the court stated: “The officer was not removed from office, but suspended in its exercise. He is still a policeman holding his office subject to the suspension. Suspension is the ‘temporary forced withdrawal from the exercise of office’; removal is the ‘dismissal from office.’ (Webster’s International Dictionary).” At another place in the opinion in the same case the court stated: “Suspensions are a matter of daily occurrence in the discipline of policemen. We think it was not the purpose of the act to give judicial review and trial de novo of every petty infraction of the police rules * * *, and the statute is not to be extended beyond the plain words of its enactment.” In Weigle v. City and County of San Francisco, 23 Cal. App. 2d 274, 72 P. 2d 902, the court stated that “suspension” in a charter provision means temporary withdrawal or cessation from public work as distinguished from permanent severance from the service accomplished by removal.

Section 13 contemplates a public hearing of an adversary nature by the taking of testimony, and a decision by the commission which may, by proper procedure,’ be reviewed by the circuit court and thereafter by this Court. In the light of prior decisions of this Court, the hearing prescribed by Section 13 is of a judicial character within the meaning of legal principles applicable to proceedings in prohibition. The commission has no statutory jurisdiction to conduct such a hearing in this case which involves the mere suspension of a policeman for a period of five days. Prohibition, therefore, is a proper procedure to prevent the commission in these circumstances from proceeding to conduct the hearing which it has announced its purpose to hold.

For reasons stated in this opinion, the . demurrer of the members of the police civil service commission to the prohibition petition is overruled and a writ of prohibition as prayed for is awarded.

Writ awarded.