Miller v. County Court Of Tucker County

• Court: Supreme Court of West Virginia
• Writing for the Court: English
• Citation: 34 W.Va. 285,12 S.E. 702
• Parties: Miller, Sheriff. v. County Court of Tucker County.
• Decision Date: 03 December 1890

12 S.E. 702
34 W.Va. 285

Miller, Sheriff.
v.
County Court of Tucker County.

Supreme Court of Appeals of West Virginia.

Dec. 3, 1890.

Mandamus—To Courts—Review.

1. Where an inferior tribunal is authorized to use its discretion, and proceeds to exercise such discretion, it cannot be controlled by mandamus in judicially determining questions properly presented for its consideration and within its jurisdiction.

2. If 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 cannot be thus controlled.

3. 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 cannot thereby be reviewed or reversed.

(Syllabus by the Court.)

Error and supersedeas to circuit court, Tucker county.

A. B. Parsons, for plaintiff in error.

W. B. Maxwell, for defendant in error.

English, J. M. V. 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, found on 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 $37.35, for guarding the court-house of said county; and allowed said sheriff 7 1/2 per cent. commission on all funds collected and disbursed by said sheriff except on $777.54 county fund, and $409.25 road fund, received from railroad tax, on which amount said court allowed said sheriff 5 percent, commission, 2 1/2 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. V. 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 5 per cent, commission on $777.54. the amount charged as railroad tax in the county fund; (2) because said commissioners allowed said sheriff but 5 per

[12 S.E. 703]

cent. commission on $409.25, the amount charged as railroad tax in Fairfax district road fund; (3) because said commissioners did not allow said sheriff the sum of $37.35, the amount of sundry judgments against the county, and 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...