State ex rel. Graney v. Sims

• Decision Date: 02 December 1958
• Docket Number: Nos. 11023,11024,s. 11023
• Citation: 105 S.E.2d 886,144 W.Va. 72
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Patrick C. GRANEY, etc., v. Edgar B. SIMS, Auditor, etc. STATE of West Virginia ex rel. Martha FORD, etc., v. Edgar B. SIMS, Auditor, etc.

Page 886

105 S.E.2d 886

144 W.Va. 72

STATE of West Virginia ex rel. Patrick C. GRANEY, etc., v. Edgar B. SIMS, Auditor, etc.

STATE of West Virginia ex rel. Martha FORD, etc., v. Edgar B. SIMS, Auditor, etc.

Nos. 11023, 11024.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 18, 1958.

Decided Dec. 2, 1958.

Syllabus by the Court

1. If the title of an act states its general theme or purpose and the substance is germane to the object expressed in the title, the title will be held sufficient.

2. In considering whether an act of the Legislature is violative of the constitutional requirement concerning its title, the language and title of the act will be construed in the most comprehensive sense favorable to its validity.

3. Statutes in pari materia must be construed together and the legislative intention, as gathered from the whole of the enactments, must be given effect.

4. The repeal of a statute by implication is not favored, and where two statutes are in apparent conflict, the Court must, if reasonably possible, construe such statutes so as to give effect to each.

5. Unless the contrary appears from the context of a statute or contract, wherein reference is made to a month, a month is to be deemed a calendar month.

6. The provisions of Code, 6-7-1, 12-3-10, 12-3-13 and Chapter 67, Acts of the Legislature, Regular Session, 1943, as amended, relating to the payment of salaries of State officials and employees are in pari materia, and when read together authorize the State Auditor to designate the time for the presentment of payroll requisitions so that all State officials and employees may receive compensation for their services on or about the end of the month in which such services are rendered.

7. A writ of mandamus will issue only upon a showing of a clear legal right to the relief sought.

Chas. E. Mahan, Mahan, White, Higgins & Graney, Fayetteville, W. Victor Ross, Charleston, for relators.

W. W. Barron, Atty. Gen., Giles D. H. Snyder, Asst. Atty. Gen., for respondents.

BROWNING, Judge.

The petitioners, in these original proceedings in mandamus, seek writs commanding the respondent, Edgar B. Sims, Auditor, to issue warrants for the payment in full of their salaries for the month of October, 1958. Patrick C. Graney is the State Road Commissioner, a public officer of this State whose salary is fixed by statute, and Martha Ford is an employee of the Department of Finance and Administration of West Virginia. These are companion cases and the issues presented will be dealt with in a single opinion. They will be identified herein as the Graney proceeding or the Ford proceeding when necessary. Graney alleges that a requisition in proper form, based on payrolls attached thereto, was submitted to the respondent on October 23, 1958, and Ford avers that a similar requisition was delivered to respondent on October 28, 1958, which requisitions respondent refused to honor as not properly filed.

The petitions were filed in this Court on November 1, 1958, and on November 7, 1958, a rule was issued against respondent in each case, returnable November 18, 1958, requiring him to appear and show cause why writs should not issue against him. The respondent appeared on the last mentioned date and filed his answer in each of the proceedings, to which answers petitioners demurred. Counsel for all parties filed briefs and presented oral arguments on that day.

In both petitions it is alleged that for more than fifteen years the respondent has honored requisitions submitted to him prior to the end of the calendar month, and issued warrants dated on the last day of the month for the payment of salaries of officials and employees for such month under the same laws applicable thereto as are now in force. In the Graney petition it is further alleged that petitioner, being a public officer of the State whose salary is fixed by statute, the payment of his monthly salary is not dependent upon the nature or quantum of the services performed by him. Graney states that he has a clear legal right to the payment of his salary for the month of October, 1958, 'at the end of said month, as soon as said month has expired and within thirty-one days of his last monthly installment payment on September 30, 1958.' Ford alleges a similar right to her salary for the month of October, 1958, 'at the end of said month, as soon as said services have been performed, and within thirty-one days of her last monthly installment payment on September 30, 1958.' In his answers the respondent does not deny the administrative practice of the past fifteen years as alleged by petitioners, but states that he has refused to honor the requisitions for the month of October, 1958, for the reason that petitioners' salaries were not 'justly due' at the time the requisitions were certified, inasmuch as petitioners had not fully performed the services required of them by law to entitle them to their salaries for the entire month of October. He further states that the requisitions were not honored because the petitioners have failed to comply with a rule promulgated by him on August 11, 1958, which he maintains was made pursuant to authority given him by Chapter 67, Acts of the Legislature, Regular Session, 1943, as amended by Chapter 116, Acts of the Legislature, Regular Session, 1945, which appears in Michie's Code of West Virginia, 1955, as Section (13a) of Article 3, Chapter 12. Hereinafter it will be referred to as Section (13a). This act authorized the Auditor of the State of West Virginia to deduct and withhold sums from the salaries of State officials and employees 'to purchase United States government bonds and other United States government obligations, or to pay taxes as may be required by an act or acts of the congress of the United States of America.' In other words, it provided for the withholding of portions of the salaries of State officials and employees for the purchase by installment payments of United States government securities and for the payment of social security and income taxes. The last paragraph of Section (13a) was not affected by the 1945 Amendment. It reads: 'To promote efficiency and economy in making such deductions as provided herein, the auditor is authorized to promulgate rules and regulations and to designate the time for the presentment of the pay roll requisitions for state officials and employees and requisitions for other claims against the State: Provided, that all officials and employees shall be paid at least once every thirty-one days. All officials and employees of the State shall comply with the rules and regulations promulgated by the auditor under this section.' This, in so far as pertinent, is the rule promulgated on August 11, effective October 1, 1958, by respondent:

'Payrolls shall not be prepared by any division of the State government for submission to the office of the Department of Finance and Administration until after the last day of a pay period has expired. All payrolls should have the following certificate affixed or written on the transmittal sheet in the following language:

'I hereby certify that the payroll or payrolls attached hereto were prepared in my office on the ___ day _____, 19__.

'The above certificate should be signed in pen and ink by the head of the division.'

This rule of August 11, was preceded by a memorandum, Exhibit B with Respondent's Answer in the Graney proceeding, dated March 28, 1958, which was sent by respondent to all of the departments of the Executive branch of the State government, to which reference is made in the answers of respondent. The comprehensiveness of the rule of August 11, and the reasons for its promulgation necessitates quotation at some length from the memorandum of March 28:

'In order to avoid the necessity of re-deposits, the drafting and submission of supplemental payrolls, corrective monthly payrolls made necessary by reason of death of employees; hiring of new employees; firing of old employees; absence of employees beyond earned time off for sickness, etc.; the pay day of all state divisions should be changed from the last day of the calendar month until the 15th day of the month following. Payrolls should not be prepared in any division until after the pay period has expired. The fiscal offices (Budget office, Auditor's office and Treasurer's office) in the Capitol are having difficulty due to the fact that payrolls for a calendar month are prepared by the 18th or 19th day of the month in the payroll office of each division and started through the mill at least ten days in advance of pay day. The time involved is necessary on account of the procedure that must be followed in obtaining payroll checks by pay day.

'The Treasurer's office distributes the checks to all divisions of the State Government either on the day before or on pay day, which is always the last day of the month. When these checks are received by the division a great many changes have taken place in its personnel that require the re-deposit of a number of employees' checks; redeposit of social security tax checks and the re-deposit of withholding tax checks; supplemental payroll is then drafted including such changes that have occurred in the staff or personnel in the division since the day the payroll was originally prepared.

'The volume of this particular type of corrective supplemental payrolls has reached the point where it is a large part of the volume of work handled in the fiscal offices. It is believed that by deferring payday fifteen days, and, requiring that payrolls are not to be processed by the payroll offices until after the last day of the pay period. that we will entirely eliminate this great mass of superfluous transactions. * * *

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'8. Upon the receipt of a properly drafted payroll, certified to as required, the Auditor's Office will issue payroll warrants for the month of October and subsequent months in the sequence of their receipt. ...