Glover v. Sims

• Decision Date: 20 June 1939
• Docket Number: 8962.
• Citation: 3 S.E.2d 612,121 W.Va. 407
• Parties: GLOVER v. SIMS, Auditor of W.Va.
• Court: West Virginia Supreme Court

3 S.E.2d 612

121 W.Va. 407

GLOVER v. SIMS, Auditor of W.Va.

No. 8962.

Supreme Court of Appeals of West Virginia.

June 20, 1939

Ritchie, Hill & Thomas and Chas. Ritchie, all of Charleston, for petitioner.

Clarence W. Meadows, Atty. Gen., and Ira J. Partlow, Asst. Atty. Gen for respondent.

MAXWELL Judge.

By this original jurisdiction proceeding in mandamus, the relator John F. Glover, seeks to compel respondent, the Honorable Edgar B. Sims, Auditor of the State of West Virginia, to issue in favor of the relator a warrant on the State Treasurer for the sum of $2,794.55, in conformity with a requisition which has been made on the Auditor by the West Virginia Board of Control.

The legislature of 1937 appropriated for the fiscal year 1937-38 the sum of $75,000.00 and for the fiscal year 1938-39 $55,000.00 "for full payment of all outstanding open accounts of the Athletic Department of West Virginia University, to be expended as the Board of Control may direct." Acts 1937, Chapter 1, Title 2, Section 1, Item 39, Account No. 300. No disbursements having been made under that appropriation, the legislature of 1939 gave the matter further attention and made another enactment denominated House Bill 405, respecting the same subject matter. By this later enactment, the legislature re-appropriated the sums set forth above in the 1937 appropriation act. In addition, the later act recites in detail the various accounts which are covered by the appropriation, among which is the relator's claim herein involved. The 1939 act also contains the following legislative declaration: "It is the finding of the Legislature: That the above listed unpaid accounts and obligations in relation to athletic activities at West Virginia University represent indebtedness authorized and incurred (largely during the years 1930-1933) by the regularly constituted authorities of the University; That these accounts were not paid and the deficit thus created because athletic income, actually available for the payment of these accounts at that time, was diverted to pay interest and principal on outstanding bonds of The West Virginia University Stadium Corporation: That the legislature of one thousand nine hundred thirty-seven approved these obligations and accounts and appropriated the necessary sum to pay said obligations and accounts in full but that the same have not yet been paid, because of prior uncertainties; That said appropriation remains unexpended in the treasury of the state and can be used without affecting the biennial budget now pending before the Legislature of one thousand nine hundred thirty nine; That this amendment and reenactment of the said appropriation of one thousand nine hundred thirty-seven is not a new appropriation and can be made independently of the pending budget bill for the ensuing biennium and is made for the purpose of clarifying the act of one thousand nine hundred thirty-seven."

A legislative finding of fact should be accepted by the courts unless there is strong reason for rejecting it. Wilson v. County Court, 114 W.Va. 603, 607, 175 S.E. 224. Consider, Lusher v. Scites, 4 W.Va. 11. The declaration of the legislature here presented being factual and not juristical, there is no basis for application of the rule in Berry v. Fox, 114 W.Va. 513, 172 S.E. 896, that a pronouncement of the latter type is not conclusive.

From the record it appears that the relator's claim is for the price of commodities and services furnished by him for use in connection with the athletic activities of the West Virginia University, and that such commodities and services were furnished on orders of the University's director of athletics. The relator is a printer and his account is made up of items for tickets, schedules, cards and the like.

In 1924, there was organized the West Virginia University Stadium Corporation for the purpose of sponsoring the erection of a stadium on state land at the University. The underlying plan was that the enterprise would be financed through contributions of subscribers and the receipts arising from athletic contests. That corporation had nothing to do with obligations incident to the operation of the athletic department of the University. It appears, however, from the legislative factual finding above quoted that athletic department funds which would have been available...