I respectfully concur in the majority opinion of this Court in this case. I agree thoroughly with the principles *Page 434 enunciated in the first, second, third, fourth, fifth and sixth points of the syllabus. It is my considered opinion, however, that because of the over serious effort to make an inroad on the civil service law of this State and the facts disclosed by this record, this Court should not only enunciate the principles set forth in the opinion, but should mold the writ.
This Court in the case of State ex rel. Crouse v.Holdren, 128 W. Va. 365, 36 S.E.2d 481, categorically held: "The City Council of the City of Beckley has no inherent nor granted power to appoint a privately paid `special merchant's watchman' who by virtue of that position has the power to bear arms and make arrests within the city's corporate limits." By the same token the City of Charleston has no power to appoint any special officer who is not subject to and does not have seniority rights under the civil service law of this State.
There is no question in my mind that the Crouse case was and is a landmark in the decisions of this Court in its position sustaining the civil service law of this State, as applied to cities with a population of five thousand or more; and no civil service law has any effect unless it is enforced to the fullest extent.
While I think the record here justifies a molding and awarding of a writ of mandamus in enforcement of the salutary principles enunciated in the majority opinion, I concur in that opinion in deference to the views of the other members of the Court on that question. The record in the instant case, however, fully discloses that bonds have been filed or lodged in the office of the Clerk of the City of Charleston, purporting to permit special officers to carry deadly weapons and to carry out all the functions of paid police officers, which bonds, though not approved or acted upon, have given to certain persons, who are not required to take examinations or follow the civil service law of this State, the apparent right to carry out the position of regularly paid police officers of the City of Charleston. *Page 435
Though not dissenting to the majority opinion, I think that a writ of mandamus should have been awarded to compel the City of Charleston formally to disapprove the bonds now filed or lodged in the city clerk's office. But whether filed or lodged, the record in this case clearly shows that under the apparent authority of such bonds, there are certain persons in the City of Charleston who, without submitting themselves to the civil service law of this State, are carrying out the functions of regularly appointed police officers, and who, under the cloak of the authority of said bonds, are making arrests and are unlawfully carrying arms in violation of Article 7, Chapter 61, Code of West Virginia.
This record is sufficiently replete with actions on the part of persons who are not regularly appointed police officers under the civil service law of this State, to warrant this Court in molding the writ prayed for and awarding a writ of mandamus to compel the City of Charleston formally to disapprove every bond now filed or lodged in the city clerk's office purporting to authorize special officers to carry deadly weapons and generally to make arrests in the city under the cloak of the apparent authority of such bonds. The power to authorize special officers as well as other persons to obtain a state license to carry deadly weapons resides in the Circuit Court of Kanawha County under Chapter 3, Acts of the Legislature, 1925, Extraordinary Session (Michie's West Virginia Code of 1949, Annotated, Chapter 61, Article 7).