Schwartz v. County Court of Hancock County

• Decision Date: 11 December 1951
• Docket Number: No. 10416,10416
• Citation: 68 S.E.2d 64,136 W.Va. 626
• Parties: SCHWARTZ, Health Officer of Hancock County, v. COUNTY COURT OF HANCOCK COUNTY.
• Court: West Virginia Supreme Court

Page 64

68 S.E.2d 64

136 W.Va. 626

SCHWARTZ, Health Officer of Hancock County, v. COUNTY COURT OF HANCOCK COUNTY.

No. 10416.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 30, 1951.

Decided Dec. 11, 1951.

Syllabus by the Court.

The appointment of a county health officer by the West Virginia Board of Health is required to be for a term of four years. Such officer is a 'public officer' within the meaning of Section 38, Article VI, State Constitution. He can not be summarily removed from office, nor can his salary be increased or diminished during the term for which he was appointed.

Abraham Pinsky, Walter E. Mahan, Wellsburg, for relator.

William Callahan, Pros. Atty. Hancock County, Samuel Schafer, Asst. Pros. Atty. Hancock County, Wheeling, for respondent.

GIVEN, Judge.

This original proceeding in mandamus involves the right of the County Court of Hancock County to remove from office the county health officer of that county. The petitioner, Doctor L. O. Schwartz, the county health officer involved, prays that a peremptory writ be awarded him commanding defendant, the County Court of Hancock County, to rescind its action attempting to remove him from office and to require defendant to pay unto him his monthly salary of $325 for July and August, 1951, Defendant filed its demurrer and answer to the petition filed by Doctor Schwartz, and petitioner filed his demurrer and special reply to the answer. Depositions were taken on behalf of petitioner and defendant, and are now before this court.

Petitioner was appointed 'acting Health Officer' for Hancock County for a term of four years from July 1, 1945, upon nomination made by the county court, and duly entered upon the duties of that office and served the full term. By letter of May 27, 1949, the county court was advised by the State Board of Health that the term of Doctor Schwartz as health officer of Hancock County would expire on June 30, 1949, and enclosed with the letter two blank forms to be used by the county court in submitting a nomination for that office for the ensuing term. The matter of the nomination was before the county court at its session held on the seventh day of June, 1949, and the 'minutes' of that session show that 'Dr. L. O. Schwartz was recommended to the Health Department as County Health Doctor for the coming fiscal year.' One of the blank forms enclosed with the letter of May 27 was used in making the nomination, which bears date June 7, 1949, and reads as follows:

'To the West Virginia Board of Health

Capitol Building

Charleston 5, West Virginia

'The County Court of Hancock County hereby nominates Dr. L. O. Schwartz, of Weirton, W. Va. as Health Officer of the County for the term beginning July 1, 1949, and ending June 30, 1953, at a salary of $3900.00 per annum, in accordance with Chapter 16, Article 2, Section 1 of the Official Code of West Virginia.

'The County Court requests confirmation of this appointment by the West Virginia Board of Health.'

'(Signed) T. J. Garlick

'(Title) Pres. Hancock County Court'

At the time the nomination was considered by the county court, the court was composed of T. J. Garlick, President, and William C. Graham and James F. Hill, Commissioners.

By letter of June 21, 1949, the State Board of Health acknolwedged receipt of the nomination and advised that it would receive consideration at the meeting of the state board to be held July 1. By letter of July 11, 1949, the county court was advised of the appointment of Doctor Schwartz, which letter reads as follows:

'Honorable T. J. Garlick

President, Hancock County Court

New Cumberland, West Virginia

'Dear Mr. Garlick:

'I am pleased to advise you that the State Board of Health, during their meeting on July 1, 1949, confirmed the appointment of Doctor L. O. Schwartz as parttime Health Officer of Hancock County for the term beginning July 1, 1949, and ending June 30, 1953.

'A certificate of appointment will be sent directly to Doctor Schwartz within the next few days.

'With best wishes, I am

'Sincerely yours

'N. H. Dyer, M.D., Secretary

'West Virginia Board of Health'

A certificate of the appointment was forwarded to Doctor Schwartz by the State Board of Health, which reads:

'(Seal of West Virginia)

'West Virginia Board of Health

'This certifies that L. O. Schwartz, M.D. of the County of Hancock having been nominated by the County Court of Hancock county, is hereby appointed Health Officer of said county for a term of four years from July 1st, 1949.

'Given under my hand and the seal of the West Virginia Board of Health this first day of July 1949.

'By order of the Board

'N. H. Dyer, M.D. (signed)

'Secretary and Executive Officer.'

Doctor Schwartz continued to perform his duties as county health officer for the fiscal years 1949-1950 and 1950-1951, and was paid by the county court for his services an annual salary of $3,900, and travel expenses of $50 per month for the fiscal year ending June 30, 1950; and an annual salary of $4,200, and travel expenses of $50 per month, for the fiscal year ending June 30, 1951. Apparently no matter involving the appointment of a health officer was considered by the county court after the nomination of Doctor Schwartz on June 7, 1949, until the thirtieth day of June, 1951, when the minutes of the county court of that date show the following: 'After due discussion, on motion of Commissioner Mitchell, seconded by Commissioner Hill and passed unanimously, Doctor L. O. Schwartz was removed as acting Health Doctor and Coroner for Hancock County, West Virginia, as of this date.' Later in the day a certified copy of these minutes of the county court was served upon Doctor Schwartz. He had no previous notice of any proposed action by the county court relating to his removal, and no charges were filed against him. At the time of the attempted removal the members of the county court were William C. Graham, James F. Hill and Charles Mitchell.

The minutes of the county court disclose that on July 11, 1951, the following action was taken: 'On motion duly made, seconded and passed unanimously, the salary of Dr. L. O. Schwartz as County Health Dr. for Hancock County Ct. was reduced to $300.00 per year'. Doctor Schwartz was notified of the action of the county court, and also notified that he would be paid no compensation for any services rendered as county health officer after June 30, 1951, and he has received no compensation for such services since that date, notwithstanding demand therefor was made by him. Also, on August 30, 1951, the county court attempted to 'appoint' Doctor James E. Fisher as county health officer for a term beginning September 1, 1951, and ending June 30, 1952, at an annual salary of $3,900, and travel expenses of $50 per month.

The county court contends that the appointment of Doctor Schwartz, made by the State Board of Health on July 1, 1949, was for a one year term only, since the minutes of that court disclose that the nomination was 'for the coming fiscal year'. It contends further that the instrument of June 7, 1949, nominating Doctor Schwartz for a 'term beginning July 1, 1949, and ending June 30, 1953, at a salary of $3900.00 per annum' was signed by T. J. Garlick, as president of the county court, without proper authority. The county court admits, however, that Doctor Schwartz 'was a legally qualified and appointed Health Officer for the County of Hancock, for one year, the fiscal year beginning July 1, 1949, and ending on midnight of June 30, 1950'.

The contentions of petitioner are that the nomination was duly authorized by the county court; that whether the nomination was intended to be for a one year term or a four year term is immaterial, for the reason that an appointment by the State Board of Health for a four year term only is authorized by the applicable statutes; that the office of county health officer is a public office; that the county court possessed no power to remove petitioner therefrom in the absence of the filing of charges and without affording him an opportunity to defend; and that his salary could not be reduced during the term for which he was appointed.

Don G. Stewart, Clerk of the County Court of Hancock County since January 1, 1933, testified to the effect that the letter of May 27, 1949, and the blank forms enclosed therewith, were received by the county court, and that the letter 'was submitted to the county court at its regular session on June 7, 1949'; that the enclosed forms were executed nominating Doctor Schwartz as county health officer, and one of the executed forms was forwarded by him, upon instructions of the county court, to the State Board of Health, and that the other executed form was placed on file in the county court clerk's office; that the letter of June 7, nominating Doctor Schwartz, was 'signed at the meeting of June 7 * * * and was signed here at the desk. I would say the other commissioners were present at the time'; and that 'in writing these minutes in the record book that perhaps I was in error in using the words 'for the coming fiscal year". It further appears that the minutes were read at the following session of the county court and that no objection was made to the words 'for the coming fiscal year', and that the minutes of the two meetings were not signed by any of the commissioners.

T. J. Garlick, president of the county court at the time of the nomination of Doctor Schwartz, testified to the effect that his action in signing the letter of June 7, 1949, nominating Doctor Schwartz for the four year term beginning July 1, 1949, was the action of the county court; that Doctor Schwartz was appointed for a four year term; that the letter of nomination was signed at a session of the county court, and that he remembered no discussion as to the appointment being for the 'coming fiscal year'. When asked: 'And did the County Court, through you as president, make the recommendation for a four year term in June of 1949', he a...