15 S.E.2d 396 | W. Va. | 1941
This is a proceeding in prohibition, original jurisdiction, wherein the County Court of Raleigh County obtained a rule directed to M. L. Painter, Special Judge of the Circuit Court of said county, or his successor, and Van Hunter, clerk of said court. The county court questions the right of the circuit court to hear an appeal from its action in reducing the amounts estimated by Hunter as necessary to compensate deputies and assistants in his office for the year 1941.
The petition alleges that in November, 1940, Hunter filed with the county court a detailed statement of the amounts necessary to be expended for deputies, assistants and other employees in his office for the calendar year 1941, in accordance with the provisions of Code,
Pending the hearing in the circuit court, the county court filed this petition March 25, 1941, and obtained a rule in prohibition from this Court.
The Judge of the Circuit Court of Raleigh County and clerk thereof, by demurrer and answer, contend that the County Court of Raleigh County acted in an unreasonable, capricious and arbitrary manner in fixing the salaries of the deputies and assistants of said clerk; that the Circuit Court of Raleigh County has jurisdiction of the clerk's appeal by reason of Chapter 19, Acts of the Legislature, 1939, which enactment amended Code,
The problems presented upon this rule involve a construction of Code,
As stated, the demurrer and answer herein assert that the action of the county court was arbitrary, unreasonable *418 and capricious, although the petition shows that the county court's reduction of the clerk's estimate as to yearly salaries for two assistants amounted to only $540.00, and that the reduction was made so that the salaries of the two assistants, both females, would conform to the maximum salary paid other female employees on the county pay-roll. Assigned as arbitrary, unreasonable, and capricious conduct of the county court is its failure to consider court calendars for the circuit and criminal courts and other facts and figures filed by Hunter with his estimate, as well as petitioner's action in ignoring Hunter's request to submit further proof before passing on the estimate, if the evidence he had submitted was not sufficient to sustain the same.
We see little merit in this contention. As far as the amount of reduction is concerned, we cannot say that the same is arbitrary, unreasonable and capricious merely by observing the calendars of the Raleigh County courts of record and the list of allowances to the circuit clerk for the past few years. As to the request to submit further proof, Hunter should have been prepared to present all proof he desired at the time he submitted his estimate, and we can see nothing indicative of arbitrary, unreasonable or capricious conduct in the petitioner's failure to call for more. It must be remembered in this connection, also, that Hunter's report was filed with the county court on November 30th, and the statute required the same by December 1st, as well as action thereon by the county court within fifteen days. The main question remaining for our determination is the constitutionality of the proviso hereinbefore quoted.
In the case of Baker v. Tyler County Court,
"* * * They shall also, under such regulations as may be prescribed by law, have the superintendence and administration of the internal police and fiscal affairs of their counties, * * * with authority to lay and disburse the county levies. * * * Such courts may exercise such other powers, and perform such other duties, not of a judicial nature, as may be prescribed by law. * * *".
For this reason, the Baker case held that the provisions of Article V of the Constitution, whereby the legislative, executive and judicial departments of the government are to be kept separate and distinct, were violated. We believe the reasoning of that case to be sound and decisive of the main question at issue herein. As we view it, the duty imposed upon county courts in the making of allowances to circuit clerks for expenses incident to the employment of deputies and assistants is not of a judicial nature, and that portion of Chapter 19, Acts 1939, which attempts to impose upon the circuit courts jurisdiction of the same, in the nature of an appeal and with the power to determine and fix a reasonable and just amount for compensation of deputies and assistants, contravenes Article V of the Constitution and is therefore invalid.
For a full discussion of the division of powers of the *420
state government, we refer to the able discussion by Judge Hatcher in the case of Hodges v. Public Service Commission,
Having determined that the proviso in Code,
"As one section of a statute may be repugnant to the Constitution without rendering the whole act void, so one provision of a section may be invalid by reason of its not conforming to the Constitution, while all the other provisions may be subject to no constitutional infirmity. One part may stand, while another will fall, unless the two are so connected or dependent on each other in subject matter, meaning, or purpose, that the good cannot remain without the bad. The point is not whether the parts are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance, — whether the provisions are so interdependent that one cannot operate without the other."
In State v. Edwards,
The petition for prohibition does not pray for a writ to issue against Hunter. Accordingly, the writ will issue, directed to M. L. Painter, Special Judge of the Circuit Court of Raleigh County, or his successor, prohibiting further proceedings in the appeal granted March 18, 1941.
Writ awarded.