Miller v. County Court Of Tucker County. *(Holt
| Decision Date | 03 December 1890 |
| Citation | 34 W.Va. 285 |
| Court | West Virginia Supreme Court |
| Parties | Miller, Sheriff v. County Court of Tucker County.*(Holt, Judge, Absent.) |
Where an inferior tribunal is authorized to use its discretion and proceeds to exercise such discretion, it can not be controlled by mandamus in judicially determining questions properly presented for its consideration and within its jurisdiction.
If any such inferior tribunal refuse to exercise its discretion and render its judgment, it may be compelled to act by mandamus, but the manner of its action or result of its decision can not be thus controlled.
When such inferior tribunal has acted, and rendered its decision and judgment, the writ of mandamus will not be allowed to usurp the province of an appeal or writ of error or certiorari, and its action can not thereby be reviewed or reversed.
A. B. Parsons for plaintiff in error, cited: 28 W. Va. 168, 169; Code (1887) c. 40, s. 6.
W, B. Maxwell for defendant in error, cited: Code c. 29, s. 67; Code c. 50, s. 8; 12 Gratt. 85; 16 Gratt. 321; 20 W. Va. 351; Code c. 46, s. 30; Code c. 39, s. 31; Code e. 46, s. 30; Code e. 39, s. 39; Code c. 40, s. 6; Code c. 43, s. 22; Code c. 30, s. 28; Code c. 37, s. 45; Steph. PL 267 (s. p.); 4 Min. Inst. Pt. I. 365.
M. Y. Miller, sheriff of Tucker county, paid off as such sheriff certain small judgments, which had been obtained by different parties against the County Court of said county before a justice of the peace; and at the June term, 1886, of said County Court said sheriff made his report under section 34 of chapter 39 of Warth's Code, page 288, respecting his receipts and disbursements and included said judgments in said report, tiling the original transcripts of said judgments, which had been paid and taken up by him as aforesaid, together with his other vouchers; and said court referred said report and vouchers to two commissioners appointed to settle with public officers, who rejected said judgments, and refused to give said sheriff credit therefor, and returned their report to said County Court. They also rejected an item charged in said sheriff's account of thirty seven dollars and thirty five cents, for guarding the court-house of said county; and allowed said sheriff seven and a half per cent, commission on all funds collected and disbursed by said sheriff except on seven hundred and seventy seven dollars and fifty four cents county fund, and four hundred and nine dollars and twenty five cents road-fund, received from railroadtax, on which amount said court allowed said sheriff five per cent, commission, two and a half per cent, having been deducted by the auditor in favor of the railroad for prompt payment; and, upon examination of said report, held said accounts to be correctly stated, and confirmed the same.
Said M. Y. Miller, sheriff, by his counsel, excepted to the confirmation of the report and settlement made by said commissioners, (1) because said commissioners allowed said sheriff but five per cent, commission on seven hundred and seventy seven dollars and fifty four cents, the amount charged as railroad-tax in the county-fund; (2) because said commissioners allowed said sheriff but five per cent, commission on four hundred and nine dollars and twenty five cents, the amount charged as railroad-tax in Fairfax district road fund; (3) because said commissioners did not allow said sheriff the sum of thirty seven dollars and thirty five cents, the amount of sundry judgments against the county, which are embraced in the report of said sheriff, and proper vouchers thereof filed with said commissioners. Thereupon said sheriff presented a petition to the Circuit Court of said county setting forth these facts, and praying that a writ of mandamus be awarded compelling said County Court to allow him credit with the amount of said judgments, and with the amount of said commission.
To this petition the said County Court demurred, and also made a return that said judgments were obtained by parties summoned by said sheriff to guard the court-house and Circuit Court clerk's office during a contest for the office of clerk, without any cause for the public good, or for the protection of public property, and for the purpose of subserving private interests; that the president of the court on whom the summonses were served did not defend said suits, or make it known to other members of the court that said suits were brought, and after a part of said judgments were rendered, within fourteen days therefrom, other members of the court moved the said justice to open said causes, but he refused to entertain the motion, and thereafter the defendant caused notice to be served upon said sheriff not to pay the said judgments or claims for said useless and unlawful service, and being cognizant of the allegations aforesaid, and knowing what said judgments were obtained for, and believing they were obtained by fraud, it had a right to refuse to order them paid, and, under the laws of the state, it had a right to allow the said sheriff the commission it did allow him for railroad taxes.
Upon this state of pleading,.the court considered said return insufficient, and awarded a peremptory writ of mandamus, directed to the County Court of Tucker county, commanding it at its next settlement with said M. Y. Miller, sheriff, as aforesaid, to allow him credit by the amount of the several judgments and credits, by the amount of commissions in the petition and proceedings mentioned, and gave said sheriff a judgment for costs, from which judgment said County Court applied for and obtained a writ of error to this Court.
The questions which must control us in the determination of this case, as we think, are raised by the demurrer. Upon the facts stated in said petition for the writ of mandamus was the defendant entitled to the peremptory writ against the County Court of Tucker county, which was awarded him in the order complained of? By the thirty...
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