93 W. Va. 316 | W. Va. | 1923
J. M. Henson, clerk of tbe county court of Putnam County, applied to tbis court by petition, duly verified, for an alternative writ of mandamus to compel tbe county court of that county to rescind its order of December 18, 1922, reducing tbe appropriation formerly allowed by it for deputies and other assistants of tbe clerk’s office for tbe year 1923, and to command tbe president of said court to sign in bis official capacity salary .orders for bis deputy clerks for tbe month of January, 1923, and subsequent months during tbe year, in accordance with tbe original appropriation. Tbe alternative writ having been issued, defendants appeared and filed their answer and return thereto. Petitioner demurs to said return, moves to strike out certain paragraphs, and answers by tbe way -of special reply.
The writ shows: that petitioner is tbe duly elected and quai-
“At 'a special session of the County Court of Putnam County, held in and for said County, pursuant to law, at the Court House thereof, on Saturday, the 2nd day, of December, 1922.
The court this day took up the detailed statement heretofore filed by J. M. Henson, Clerk of the County Court of Putnam County, asking that the amount of $4500 be set aside as the amount necessary to be expended for deputies and other assistants in the office of said clerk for the year 1923. And it appearing to the court that said amount is probably in excess of the amount necessary to be expended for such purpose, it is ordered that the amount of $4000 be set aside as the amount necessary to be expended for such deputies and other assistants for said office for the year 1923; ’’
that after so making the appropriation and after the expiration of the fifteen day period, at a regular session of the county court, held on December 18, 1922, said court by an order of record, attempted to rescind its former action of December 2, 1922, and reduce the amount of the appropriation from $4000 to $2000. The result of this attempted rescission, as alleged, was that when petitioner,, on January 31, 1923, -filed his statement in his office showing the names of his clerks and deputies and the amounts of the salaries due them for that month, and presented orders, directing payment thereof by the
Certified copies of the orders of the county court of December 2, 1922, and December 18, 1922, are filed,as exhibits with the petition. •
Bespondents, in their return, deny, that petitioner filed his estimate within fifteen days, as prescribed by law; they, however, aver that petitioner filed on November 13, 1922, a so-called estimate or statement with the then members of the county court, respondents’ predecessors in office; that the county court as then constituted declined to act upon the statement and that no action was taken until December 2, 1922, when petitioner filed with respondents, sitting in special session, a written request for an aggregate allowance for the
One exhibit is filed with the return, the written request of J. M. Henson, referred to in the return. It is a copy of a
“November 10th, 1922.
Honorable County Court oe PutnaM 'County, West Virginia.
GENTLEMEN :
In accordance with chapter 57, section 8, Acts of West Virginia Legislature, 1919,1, J. M. Henson, Clerk of the County Court of Putnam County, West Virginia, respectfully 'request your Honorable Body to set aside the amount of $4500.00, which is the probable amount necessary to be expended; for deputies, assistants and other employees for the County Clerk’s office of Putnam County, West Virginia, for the calendar year beginning the 1st day of January, 1923, and ending the 31st day of December, 1923.
Respectfully submitted,
J. M. Henson, Clerk, County Court, Putnam County, West Virginia.”
By way of special reply, petitioner points out several matters, perhaps already observed, which are pertinent:
1. Contrary to the allegations of the return, the certified copy of petitioner’s statement to the county court shows that it was filed in his office on November 18, 1922, within the time prescribed by law; that it never was presented to the outgoing members of the county court, but was presented for the first time to respondents on December 2, 1922.
2. Petitioner avers that the order of December 2, 1922, was endorsed bjr respondent, L. W. Cain, president of the county court.
3. That at the meeting of December 2, 1922, when petitioner’s statement and estimate was being considered, the county court was advised of the number of deputies customarily hired, and of the amounts of their salaries, and that respondents made no objection to the form of the statement but to the aggregate amount only; that'he believes there was no misunderstanding to the effect that the salary of the county clerk was included in the estimate and that no attempt was made to intimidate the county court into making an appropriation.
5. That all statements required by law have been properly filed, and that an appropriation of $4000 is reasonable and necessary.
Other matters are averred in the special- reply, answering allegations in the return, concerning conditions existing in the county court at and about the time of this controversy, none of which we deem material to the issues involved.
Two exhibits are filed.' One purports to be the monthly statement of J. M. Henson, county clerk, fon the month of Januaiy, 1923, bearing his signature and acknowledgment, dated February 8, 1923. ' The other is a certified copy of petitioner’s estimate quoted heretofore.
Such in substance is the record, but more briefly stated, respondent’s refusal to sign the orders is based here on the ■ following grounds:
1. That the county elei’k did not comply with the statute, in the following particulars: (a) he did not file a detailed statement; (b) he did not file it with the county court, but merely lodged it in his, the county clerk’s office.
2. That the county court having by mistake included in its appropriation a sum sufficient to pay the county clerk’s - statutory salary and the salaries of his deputies and assistants, it has the right thereafter to correct its oi'der and reduce the appropriation.
The first paragraph of section 40, chapter 137, Barnes’ Code, 1923, requires the clerk of the county court and other offieei’s named therein, on or before December 1st of each year, ' to file with the county court, or other tribunal in lieu thereof, a detailed statement of the probable amount necessary to be expended for deputies, assistants, and other employees of their respective offices in the following year. Such county court or tribunal- is then required, not later than fifteen days after the filing of the statement, to take up and consider it and.to detei'mine and fix an aggregate■ sum to be expended for the period covered by the statement for such compensation for all such deputies, assistants and other employees of
While the statement is not in detail as contemplated by the statute, the order of the county court shows that it treated it as a “ detailed statement, ’ ’ and acted upon it. Before passing its order, the court without doubt made oral inquiries, explanations were made, and the court became satisfied. But, however that may be,,tbe court passed the order and entered a “finding of its action” “upon its court record” as required by the statute. By. its order of December 2nd it treated it as being a “detailed statement.” In its subsequent order of December 18th it acted without requiring any further detailed statement. If a detailed statement were necessary to the validity of the first order, it was likewise necessary to the validity of the second. Both are based on the same statement. We do not think the court after passing the order making the appropriation of $4000, and thereby treating the statement as sufficiently detailed, had any right, after the adjournment of the term, to rescind its order at a subsequent term on the ground that the statement was not sufficiently detailed. The detailed statement must be filed'on or before December 1st of each year. The county court is required not later than fifteen days from the filing thereof to take up and consider the same and to determine and fix the aggregate amount to be expended. There is nothing in the statute from which it can be inferred that the county 'court can act after fifteen days. Its action seems to be limited to that period. ' Whether it could act after that period, should it fail to act within it, or whether it could by proper proceedings be compelled thereafter to act in such case,, we need not
That the members of the county court were newly elected, and that they werej not familiar with their duties, may be conceded, but that they were surprised, or that they made a mistake as respects the inclusion of the county clerk’s salary in the appropriation made, we can not believe. There is only the sum of $1800 involved, but that item may determine whether the work in the county clerk’s office is to be well done or poorly done. The work ought to be- kept right up to date.’ The people are entitled to good service; to have that kind of service they must 'pay for it, and are usually-willing to do so. They must no1} expect good service to be rendered by poorly paid assistants or an insufficient number of assistants.
It is also urged in argument that petitioner’s statement was never legally filed; that it was not filed with the county court until December 2nd, while the statute requires it to be filed on or before December 1st. But it appears that the court was not in session for fifteen days preceding December 1st, so it could not have been filed with it in strict compliance with the statute. It was filed in the county clerk’s office November 18th. We think that was a sufficient compliance with the (statute under -the dircumistajnc'es. We are not unmindful of the fact that there are but four regular terms of county courts each year; that the times these are held are fixed by each particular court; that special terms are called as needed; but thatun-many counties the county courts seldom meet in special session. Under a construction of the statute as argued by respondents, if the county court should not be in session prior to December 1st, an officer could not comply with the statute at all, unless he should file his statement at a preceding regular term or watch for some special term that perchance might be called. If he were elected at a regular
One other objection raised is that the clerk has not .shown that he filed the second statement required by the second paragraph of section 40, showing that he has employed his deputies and assistants, who they are and the time and terms of their employment, and that the county court has entered an order authorizing the president and clerk of the court to sign the monthly salary orders payable to the deputies and assistants. We think it sufficiently appears that he has reported the names of his deputies and assistants and the time for which they are employed and the terms of their employment. It does appear, however, that the county court has not entered any order authorizing the president and clerk to sign orders or drafts for the payment of the clerk’s or his deputies’ salaries monthly; nor does the statute require the court to enter such a blanket order.- That provision is for the convenience of the court. If it is not adopted, then the court must meet monthly or at such other times as may be required to authorize the issuance of the orders. Moneys cannot be disbursed without the order of the court, but in this particular instance and for this particular purpose the Legislature has permitted the court in advance to authorize, by order entered of record, the president and clerk, to sign' salary drafts for payment of the monthly salaries of the officer and his deputies. This applies to other officers besides the clerk of the county court.
One other point raised by respondents is that to require them to pay these salaries deprives them of all discretion in fixing the amount of the salaries. We do not so regard it. That was determined by the county court when the salary budget was fixed.
As we read the record, the clerk has substantially complied with the statute. The court acted upon his statement, passed
For the foregoing reasons; a peremptory writ will be awarded 'requiring the county court to issue orders for-the payment of the salaries to Lee Baiwows and W. Z. Cash, for $125 each," for 'the month of January, 1923, and petitioner '"will be allowed his costs.- • '-
' Writ awarded.