LePage v. Bailey, (No. 7674)

• Decision Date: 03 August 1933
• Docket Number: (No. 7674)
• Citation: 114 W.Va. 25
• Court: West Virginia Supreme Court
• Parties: W. B. LePage v. Ernest L. Bailey, Chief of the Departmentof Mines of West Virginia.

114 W.Va. 25

W. B. LePage

v. Ernest L. Bailey, Chief of the Departmentof Mines of West Virginia.

(No. 7674)

Supreme Court of Appeals of West Virginia.

Submitted July 26, 1933.

Decided August 3, 1933.

1. Mines and Minerals

A state official whose salary is fixed by statute, does not waive the full amount of his salary by the mere acceptance of a less sum.

2. Statutes

An act of the legislature may provide that it shall become operative only upon some certain event or condition, and may refer the ascertainment of the contingency to some other department or officer.

3. States

The authority of the governor of this state under House Bill No. 553, enacted by the legislature March 11, 1933, may be exercised only "when in his opinion the financial affairs of the state government demand".

Litz, Judge, absent.

Original proceeding in mandamus by W. B. LePage against Ernest L. Bailey, Chief of the Department of Mines of West Virginia.

Writ awarded.

T. C. Townsend and Ben Moore, for relator. Homer A. Holt, Attorney General, and Ira J. Partlow, Assistant Attorney General, for respondent.

Hatcher, Judge:

This is a proceeding in mandamus. The petitioner was regularly appointed a district mine inspector on January 1, 1930, for the term of four years ending December 31, 1933. Commencing with the month of September, 1932, his salary was involuntarily reduced 15% and on March 17, 1933, the chief of the department of mines notified him that his services would not be needed after March 20, 1933. In this proceeding, the petitioner seeks to compel the mining chief (a) to issue him a requisition for the sum representing the 15% cut on his salary between September 1, 1932, and March 20, 1933; (b) to reinstate him, and (c) to issue a requisition for his full salary during the period of his ouster.

1. The Extraordinary Session of the Legislature in 1932 directed a reduction of 15% in the salaries between $2,000 and $3,000 of public officers, but provided that the reduction should not apply to an official then holding a termal office (such as petitioner), unless he should "voluntarily accept the same and so signify in writing to the proper disbursing officer", etc. See Acts 1932, ch. 20, sec. 1. The minimum salary of petitioner as fixed by statute when he was appointed in 1930 was $250.00 a month. He indorsed and cashed monthly warrants after September 1, 1932, for the sum of $212.50. He filed no renunciation of any part of his salary with the state treasurer, but the respondent contends that petitioner's indorsements of his warrants signified a voluntary acceptance of the cut. The indorsements were for the sole purpose of securing the specific money represented by the warrants. Therefore, they cannot be treated as a waiver of the salary due petitioner which was not included in the warrants. '' There is no principle upon which an individual, appointed or elected to an official position, can be compelled to take less than the salary fixed by law. The acceptance and discharge of the duties of the office, after appointment, is not a waiver of a statutory provision fixing the salary thereof. * * * The doctrine of waiver has no application to any such case." Satterlee v. Board, etc., 75 N. Y. 38, 42. Accord: Glavey v. U. 8., 182 U. S. 595, 610, 45 L. Ed. 1247. "An officer who accepts and receipts for less than the amount of his salary provided by law may recover the remainder not so received.'' Board, etc. v. Chapman, 22 Ind. App. 60, 53 N. E. 187, 188.

2. The Acts of 1925, ch. 88, sees. 7-10, provided that the chief of the department of mines, with the approval of the governor, should divide the state into twenty-five mining districts, which was done. The enactment further provided that the departmental chief should appoint one inspector for each mining district and that after December 31, 1925, the appointments of all inspectors "shall be for a tern, of four years" (except to fill unexpired terms) removable from office by the chief for "incompetency, neglect of duty, drunkenness, malfeasance or for other good cause". The petitioner was appointed under this law. At the time petitioner was removed, the chief reduced the number of mining districts in the state to twenty. He then simultaneously dismissed nine district inspectors, including the petitioner, and shortly afterwards appointed four new inspectors. The chief testified in regard thereto as follows: That the regrouping of the districts was made for economic reasons, under the instructions and with the approval of the governor; that the new appointees were no better qualified to serve than the ones dismissed; and that his only real reason for reducing the number of the old inspectors below twenty, to sixteen, and then appointing four new inspectors was because he "wanted new men". He said: "I felt that a little new blood would not be detrimental and would be very beneficial for the department." (Pursuant to that policy, the chief later dismissed twelve more of the old inspectors, and replaced them with new appointees.)

There is no claim that any of the causes for dismissal set forth in the Acts of 1925, existed in relation to the petitioner. On the contrary, the chief gave petitioner a letter stating that he was "industrious, sober and efficient" and had performed his duties as district mine inspector "in a capable and efficient manner". The chief would justify his action solely under ...