Delardas v. County Court of Monongalia County
| Decision Date | 29 July 1975 |
| Docket Number | No. 13348,13348 |
| Citation | 158 W.Va. 1027,217 S.E.2d 75 |
| Court | West Virginia Supreme Court |
| Parties | . Supreme Court of Appeals of West Virginia |
Syllabus by the Court
1. 'Where the duties newly imposed on a public official by the legislature are not mere incidents of the office which he holds, but embrace a new field, and are beyond the scope and range of the office as it theretofore had existed and functioned, a concurrent legislative increase of salary of such official is not violative of West Virginia Constitution, article 6, section 38, which inhibits the increasing of a public official's salary within his term of office.' Syllabus, Springer v. Board of Education, 117 W.Va. 413, 185 S.E. 692 (1936).
2. A statute which contains an automatic escalator clause, providing for increase of salaries to county officials during their present term of office without also placing the concomitant burden of new and additional duties upon those offices, is facially unconstitutional in violation of West Virginia Constitution, Article VI, Section 38.
3. 'A statute may contain constitutional and unconstitutional provisions which may be perfectly distinct and separable so that some may stand and the others will fall; and if, when the unconstitutional portion of the statute is rejected, the remaining portion reflects the legislative will, is complete in itself, is capable of being executed independently of the rejected portion, and in all other respects is valid, such remaining portion will be upheld and sustained.' Syllabus point 6., State v. Heston, 137 W.Va. 375, 71 S.E.2d 481 (1952).
4. 'A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.' Syllabus point 2., State ex rel. Kucera v. Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
William Delardas, pro se.
David L. Solomon, Pros. Atty., Mike Magro, Jr., Asst. Pros. Atty., Morgantown, Leo Catsonis, Charleston, for respondents.
This is an original application by Petitioner, William Delardas, individually, as a citizen, voter and taxpayer of Monongalia County and the State of West Virginia, and on behalf of all other citizens, voters and taxpayers similarly situated, for a writ of mandamus to compel the County Commission of Monongalia County (formerly known as the County Court of Monongalia County), Joseph E. Kun, President and Commissioner, John Patrick Ball, Commissioner, and Richard E. Davies, Commissioner Respondents: (1) to cease and desist paying, and, in the instance of Commissioners Kun and Ball, receiving salary increases payable pursuant to W.Va. Code 1931, 7--1--5a, as amended; (2) in the instance of Commissioners Kun and Ball, to return such amounts of additional compensation already collected by them to the Sheriff of Monongalia County or other proper authority; and, (3) to hold the Respondents, individually and collectively, accountable and responsible for additional compensation paid to the incumbent Clerk of the County Commission of Monongalia County pursuant to W.Va. Code 1931, 7--7--4 and 7--7--5, as respectively amended.
Prior to instituting this proceeding, the Petitioner made formal demand upon the Respondents to honor the foregoing requests. By order entered by the County Commission of Monongalia County, the Respondents refused to honor these demands.
The primary issue presented in this proceeding is identical to that resolved in the companion case of State ex rel. Goodwin v. Rogers, Commissioner, W.Va., 217 S.E.2d 65 (1975): whether certain provisions of Chapter 21, Acts of the Legislature, Regular Session 1972, 1 authorizing increased compensation to Respondents and other elected county officials violates West Virginia Constitution, Article VI, Section 38. Consistent with our contemporaneous holding in the Goodwin case, the Court is of the opinion that W.Va. Code 1931, 7--1--5a, 7--7--4 and 7--7--5, as respectively amended, provide constitutionally permissible salary increases for incumbent county officials.
'Where the duties newly imposed on a public official by the legislature are not mere incidents of the office which he holds, but embrace a new field, and are beyond the scope and range of the office as it theretofore had existed and functioned, a concurrent legislative increase of salary of such official is not violative of West Virginia Constitution, article 6, section 38, which inhibits the increasing of a public official's salary within his term of office.' Syllabus, Springer v. Board of Education, 117 W.Va. 413, 185 S.E. 692 (1936); State ex. rel Goodwin v. Rogers, Commissioner, supra, syllabus point 1, Id.
This opinion is written for the purpose of responding to a substantial issue not raised or resolved by the Goodwin case, Supra. Mr. Delardas attacks the constitutionality of a portion of W.Va. Code 1931, 7--7--3, as amended, which, as noted in the Goodwin case, classifies counties into seven salary categories based upon minimum and maximum assessed valuation of property, all classes, located within the county. That statute provides as follows:
'For the purpose of determining the compensation of elected county officials, the counties of the State of West Virginia are hereby grouped into seven classes based on their assessed valuation of property, and classes. These seven classes and the minimum and maximum valuation of property, all classes, established to determine the classification of each county are as follows:
Minimum Assessed Maximum Assessed
Valuation of Property Valuation of Property
Class All Classes
All Classes
Class I $600,000,000 No Limit
Class II $450,000,000 $599,999,999
Class III $200,000,000 $449,999,999
Class IV $100,000,000 $199,999,999
Class V $50,000,000 $99,999,999
Class VI $15,000,000 $49,999,999
Class VII 0 $14,999,999
The assessed valuation of property, all classes, that shall be used as the base to determine the class of a county shall be the assessed valuation of property, all classes, of the county as certified by the county assessor, state auditor and county clerk prior to March twenty-nine, one thousand nine hundred seventy-two.
Prior to March twenty-nine, one thousand nine hundred seventy-six and each fourth year thereafter, the county court of each county shall determine if the assessed valuation of property, all classes, of the county, as certified by the county assessor, state auditor and county clerk, is within the minimum and maximum limits of a class above or below the class in which the county then is. If the county court so determines, it shall record the new classification of the county with the state auditor and state tax commissioner and record its action on its county court record.
The classification of each county shall be subject to review by the state tax...
To continue reading
Request your trial
-
Allen v. State, Human Rights Com'n
...540, 258 S.E.2d 117, 118 (1979); Syl. pt. 2, McGrady v. Callaghan, 161 W.Va. 180, 244 S.E.2d 793 (1978); Syl. pt. 4, Delardas v. County Court, 158 W.Va. 1027, 217 S.E.2d 75 (1975); Syl. pt. 2, Traverse Corp. v. Latimer, 157 W.Va. 855, 205 S.E.2d 133 (1974); Syl. pt. 1, Hall v. Protan, 156 W......
-
Leslie Equipment v. Wood Resources, L.L.C.
... ... Goeke, Appellants ... No. 34712 ... Supreme Court of Appeals of West Virginia ... Submitted September 9, ... the May 27, 2008, order of the Circuit Court of Wirt County denying their motion to set aside a default judgment ... ...
-
State ex rel. Mountaineer Park, Inc. v. Polan
...Syllabus point 2, State ex rel. Kucera v. Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969)." Syl. pt. 4, Delardas v. County Court of Monongalia County, 158 W.Va. 1027, 217 S.E.2d 75 (1975). John L. McClaugherty, Louis S. Southworth, II, Wendell Turner, Jackson & Kelly, Charleston, for petitio......
-
Cooper v. Gwinn
...to do the thing the petitioners seek to compel; and (3) the absence of another adequate remedy at law. Delardas v. County Court, 158 W.Va. 1027, 217 S.E.2d 75 (1975); Russell Transfer, Inc. v. Moore, 158 W.Va. 534, 212 S.E.2d 433 (1975); State ex rel. Damron v. Ferrell, 149 W.Va. 773, 143 S......