Meador v. County Court of McDowell County

• Decision Date: 07 June 1955
• Docket Number: No. 10715,10715
• Citation: 141 W.Va. 96,87 S.E.2d 725
• Parties: William A. MEADOR, Probation Officer, etc. v. The COUNTY COURT OF McDOWELL COUNTY, West Virginia, etc.
• Court: West Virginia Supreme Court

Page 725

87 S.E.2d 725

141 W.Va. 96

William A. MEADOR, Probation Officer, etc. v. The COUNTY COURT OF McDOWELL COUNTY, West Virginia, etc.

No. 10715.

Supreme Court of Appeals of West Virginia.

Submitted April 27, 1955

Decided June 7, 1955.

Syllabus by the Court

1. Under the provision contained in Article VIII, Section 24, West Virginia Constitution, that county courts '* * * shall also, under such regulations as may be prescribed by law, have the superintendence and administration of the internal police and fiscal affairs of their counties, * * * with authority to lay and disburse the county levies', the county courts of this State are vested with a wide discretion in the superintendence and administration of the internal police and fiscal affairs of their counties, subject only to the limitations contained in Article X of the West Virginia Constitution, and in the statutes implementing the constitutional provisions contained in Code, 11-8, as amended by Chapter 67, Acts of the Legislature, Second Extraordinary Session, 1933, and Chapter 132, Regular Session, 1939, a discretion which this Court cannot disturb by the issuance of a writ of mandamus, in the absence of a clear legal right on the part of the petitioner.

2. 'Constitution, Article VIII, section 24, does not rid county courts of legislative supervision.' Pt. 9, Syl., State Road Commission of West Virginia v. Kanawha County Court, 112 W.Va. 98, 163 S.E. 815.

3. While a writ of mandamus is the proper remedy to compel the tribunals and officers exercising discretion and judicial power to act, when they fail so to do, in violation of their duty, mandamus is never employed to prescribe in what manner such tribunals and officers shall act, or to correct errors they may have made.

4. Under Code, 11-8, as amended by Section 20, Article 8, Chapter 38, Acts of the Legislature, Regular Session, 1933, and as further amended by Section 26, Article 8, Chapter 67, Acts of the Legislature, Second Extraordinary Session, 1933, 'A local fiscal body shall not expend money or incur obligations: * * * (3) In excess of the amount allocated to the fund in the levy order; (4) In excess of the funds available for current expenses.'

5. Notwithstanding Code, 11-8, as amended by Chapter 67, Acts of the Legislature, Second Extraordinary Session, 1933, and as amended by Section 10-a, Article 8, Chapter 26, Acts of the Legislature, Regular Session, 1937, by adding thereto a new section designated as Section 10-a, and as the last-mentioned section was amended by Section 10-a, Article 8, Chapter 132, Acts of the Legislature, Regular Session, 1939, which provides that a county court, after convening at its regular meeting on the first Tuesday in August for the purpose of making its budget estimate, shall reconvene on the third Tuesday in August to 'hear and consider any objections made orally or in writing by the prosecuting attorney, by the tax commissioner or his representative, or by any taxpayer of the county, to the estimate and proposed levy or to any item thereof', and provides further that 'The failure of any officer or taxpayer to offer objections shall not preclude him from pursuing any legal remedy necessary to correct any levy made by any fiscal body under this article', the budgetary action of a county court, in making its estimate and laying a tax levy pursuant thereto, cannot be controlled by a writ of mandamus, prayed for by a petitioner, who had made no objection to the estimate and proposed levy at the meeting of the county court on the third Tuesday in August, and whose petition praying for a writ of mandamus has been filed in this Court after the time, namely, the third Tuesday in August, designated in Section 10-a of the statute for the hearing of objections to such estimate and tax levy, and after the time the levy proposed and made by the county court has been approved by the state tax commissioner, and the estimate and levy, together with the order of the county court approving them and the written approval of the tax commissioner, are recorded in the proper record book.

6. Under Code, 11-8, as amended, a local fiscal body, such as a county court, in making its estimate and budget for the ensuing fiscal year and levying taxes in accordance therewith, cannot expend money where, in the first instance, no appropriation therefor has been made.

7. Under Section 5, Article 12, Chapter 38, Acts of the Legislature, 1949, which authorizes the judge of any court, actively exercising jurisdiction in criminal cases and having authority to place offenders on probation, to appoint a court or county probation officer and a clerical assistant to serve during the pleasure of the appointing judge, and provides further that '* * * the appointing judge shall first obtain the apporval of the county court or the county courts in his judicial circuit of the expenses to be incurred and the salary or salaries to be paid the court or county probation officer and clerical assistant(s), which approval shall be discretionary with said county court or courts and shall be required before any appointment made hereunder becomes effective' does not impose on a county court the duty for any fiscal year, in which such approval has not been sought and obtained, to appropriate money to pay the salary and expenses of such appointed officer or clerical assistant.

W. H. Ballard, II, Welch, for relator.

Samuel A. Christie, Welch, Stewart A. Calhoun, Asst. Pros. Atty., Keystone, for McDowell County Court.

RILEY, Judge.

Invoking the original jurisdiction of this Court, the petitioner, William A. Meador, Probation Officer of McDowell County, West Virginia, filed on December 7, 1954, his petition directed to the County Court of McDowell County, West Virginia, a corporation, praying that a writ of mandamus be issued compelling the respondent county court to pay to the petitioner salary in the amount of two hundred twenty-five dollars a month for each month since July, 1954, and also to pay petitioner three hundred dollars to defray field expenses incurred by petitioner as such probation officer since July 1, 1954.

The case was submitted to this Court upon petitioner's original petition, respondent's answer to the original petition, petitioner's demurrer to the respondent's answer, petitioner's amended and supplemental petition, respondent's answer to the amended and supplemental petition, petitioner's demurrer to respondent's answer to the amended and supplemental petition, petitioner's general replication to respondent's answer to petitioner's amended and supplemental petition, and voluminous depositions taken on behalf of both petitioner and respondent, bearing in the main upon the fiscal conditions of McDowell County.

From the original and amended and supplemental petitions it appears that on October 16, 1952, petitioner, William A. Meador, was appointed Probation Officer of McDowell County, effective the same day, by the Honorable Richard R. Parsons, Judge of the Criminal Court of McDowell County.

The foregoing appointment was made pursuant to Chapter 62, Code, 1931, as amended by Chapter 27, Acts of the Legislature, Regular Session, 1939, by adding thereto a new article, Article 12, composed of twenty-two sections, relating to probation and parole, and amending and reenacting Section 5 of said Article 12, by Chapter 38, Acts of the Legislature, Regular Session, 1949, relating to the appointment and fixing of salaries of court and county court probation officers and clerical assistants.

From the original, the amended and supplemental petitions, and the answers thereto it appears that at the time of the appointment of petitioner on October 16, 1952, as Probation Officer of McDowell County, the Honorable Richard R. Parsons was, and is now, the Judge of the Criminal Court of McDowell County, and as such actively exercises jurisdiction in criminal cases and has authority to place offenders on probation.

The original and the amended and supplemental petitions allege, and respondent's answers thereto deny, that prior to the appointment of the petitioner by the Judge of the Criminal Court of McDowell County on October 16, 1952, the Judge obtained the approval of the McDowell County Court of expenses to be incurred of three hundred dollars a year and a salary of two hundred twenty-five dollars a month to be paid to the petitioner as probation officer; and that for that fiscal year the county court allotted and appropriated the sum of three thousand dollars for the salary and field expenses of the Probation Officer of McDowell County in a levy made for the fiscal year 1953-54.

The original and the amended and supplemental petitions allege that, pursuant to such appointment, an order of appointment of the petitioner as such probation officer was entered in the proper order book of the criminal court of that county; that the petitioner was at the time of his appointment on October 16, 1952, a person qualified to perform the duties as probation officer, in that petitioner is not related to the Judge of the Criminal Court of McDowell County either by consanguinity or affinity; and that after his appointment petitioner gave bond in the penalty of one thousand dollars with Fidelity and Deposit Company of Maryland, as surety thereon, which bond was approved by both the Criminal Court and the County Court of McDowell County; and the original and amended and supplemental petitions allege, and respondent's answers thereto admit, that the petitioner has continuously performed the duties of Probation Officer of McDowell County, and is performing the duties of such office, which allegations are not controverted in this record.

It is further alleged in the petitions, and nothing contrary thereto is established by this record, that petitioner's appointment as Probation Officer of McDowell County, if valid in the first instance, has never been revoked by the Judge of the Criminal Court of ...