Springer v. Board of Ed. of Ohio County

• Decision Date: 05 May 1936
• Docket Number: 8322.
• Citation: 185 S.E. 692,117 W.Va. 413
• Parties: SPRINGER v. BOARD OF EDUCATION OF OHIO COUNTY et al.
• Court: West Virginia Supreme Court

185 S.E. 692

117 W.Va. 413

SPRINGER v. BOARD OF EDUCATION OF OHIO COUNTY et al.

No. 8322.

Supreme Court of Appeals of West Virginia.

May 5, 1936

Submitted April 22, 1936.

Syllabus by the Court.

Where the duties newly imposed on a public official by the Legislature are not mere incidents of the office which he holds, but embrace a new field, and are beyond the scope and range of the office as it theretofore had existed and functioned, a concurrent legislative increase of salary of such official is not violative of West Virginia Const. art 6, § 38, which inhibits the increasing of a public official's salary within his term of office.

Error to Circuit Court, Ohio County.

Mandamus proceeding by Z. W. Springer against the Board of Education of Ohio County and another. To review a judgment, defendants bring error.

Affirmed.

Donald McKee, of Wheeling, Homer A. Holt, Atty. Gen., and Ira F Partlow, Asst. Atty. Gen., for plaintiffs in error.

McKee & McKee, of Wheeling, for defendant in error.

MAXWELL Judge.

This is a writ of error to an order of the circuit court of Ohio county awarding a peremptory writ of mandamus requiring the respondents, board of education of Ohio county and Thomas B Foulk, its president, to pay to the relator, Z. W. Springer, the sum of $1,750.00, alleged balance of salary of the relator as county superintendent of schools for said county for the last ten months of his term of office, which expired June 30, 1935.

Relator was elected to said office at the general election of 1930, and entered upon the discharge of his duties July 1, 1931. He was thus engaged when the County Unit School Law was passed, effective from passage, May 22, 1933. Acts of the Legislature, First Ex.Sess.1933, c. 8. Prior to the last mentioned date, he received an annual salary of $2,100.00, payable out of the general school fund. Code 1931, 18-4-3. Also, as ex officio county financial secretary of school affairs, he received annual compensation of $357.50, based on the number of teachers employed in said county for at least six months of each year. Code 1931, 18-4-5.

For many months following the enactment of the County Unit School Law, relator was paid on the basis of the annual salary of $2,100.00 as provided by section 4 of article 4 of the stated act of 1933, the said salary being payable "from the elementary teachers' fund or the high school teachers' fund, or from both." Also, he received monthly compensation on the basis of $2,000.00 annual salary to be paid out of the general school fund of the state, as provided in section 6, article 9, chapter 9 of the Acts of the First Extraordinary Session of the Legislature of 1933. His compensation was thus at the annual rate of $4,100.00. The aforementioned special compensation as financial secretary of school affairs was eliminated by statute.

In the fall of 1934, in pursuance of a general ruling which had been made some months previously by the Attorney General of the state, the board refused to make further payments of the amount, to-wit, $175.00 per month, theretofore regularly paid by it.

Respondents base their refusal to pay said portion of relator's salary for the ten months period aforesaid on a provision of section 38 of article 6 of the Constitution of West Virginia, providing: "Nor shall the salary of any public officer be increased or diminished during his term of office." The Attorney General's opinion was likewise grounded. See Report and Opinions, Attorney General, 1933-34, page 301.

Sections 1 and 4 of article 4, of the County Unit School Law are as follows:

(1) "The county superintendent shall be elected by the county board of education. The president of the board, immediately upon the election of the superintendent, shall certify the election to the state superintendent. The superintendent in office at the time of the passage of this act shall continue in office until the expiration of his present term: Provided, however, That the county superintendent in office at the time of the passage of this act shall exercise only such of the duties of the county superintendent designated in this article as the board may prescribe. The board may designate a teacher or teachers to perform the remaining duties, if any, required of the superintendent by this article: Provided further, That the foregoing provision shall apply only during the present term of the superintendent in office at the time of the passage of this act, or that part of the term as such superintendent may serve, and not thereafter."

(4) "The board shall fix the annual salary of the superintendent, but in no case shall the salary be less than eight hundred dollars per year nor more than three thousand dollars per year, exclusive of state aid. The board shall pay the salary from the elementary teachers' fund or the high school teachers' fund, or from both."

The circuit court held that the above mentioned constitutional provision is not applicable in the instant case because the effect of the enactment of the County Unit School Law was to abolish the old office of county superintendent of free schools and to create a new office under the same name. This conclusion was reached because of the enlargement and change of duties of the county superintendent under the new act, and because it requires of him personal qualifications not theretofore exacted. We have difficulty in accepting this position in the light of the wording of the first section of article 4 of the new act, quoted supra. Note the...