State ex rel. Bd. of Ed. of Kanawha County v. Melton

• Decision Date: 13 November 1973
• Docket Number: No. 13402,13402
• Citation: 198 S.E.2d 130,157 W.Va. 154
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. the BOARD OF EDUCATION OF the COUNTY OF KANAWHA, a corporation v. G. Kemp MELTON, Sheriff of Kanawha County, West Virginia, and the County Court of Kanawha County, a corporation.

Page 130

198 S.E.2d 130

157 W.Va. 154

STATE of West Virginia ex rel. the BOARD OF EDUCATION OF the

COUNTY OF KANAWHA, a corporation v. G. Kemp MELTON, Sheriff of Kanawha County, West Virginia, and the County Court of Kanawha County, a corporation.

No. 13402.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 6, 1973.

Decided Nov. 13, 1973.

Syllabus by the Court

1. When a statute does not become operative immediately upon its enactment, but the time of its going into effect is postponed until a later date, either by virtue of its own terms or a general constitutional provision, it ordinarily does not have any effect the stated period has expired.

2. The provisions of Chapter 121, Acts of the Legislature, Regular Session, 1973, enacted on April 14, 1973, effective July 13, 1973, authorizing a county board of education to appoint as its treasurer someone other than the county sheriff and materially altering the procedure for the control, management and disbursement of county school funds, were in existence between April 14, 1973 and July 13, 1973, but a county board of education could not appoint a treasurer under those provisions until after the effective date of the act which was July 13, 1973.

3. The general provisions of Section 7, Article 8, Chapter 6, Code, 1931, as amended, which impose a duty upon the sheriff to make an annual settlement of the county school funds following the close of the fiscal year and which impose a duty upon the county court to fix a date for such settlement, are mandatory in nature and strict compliance is required.

4. The requirement of Section 7, Article 8, Chapter 6, Code, 1931, as amended, relating to the time in which the duties imposed upon the sheriff and the county court in regard to the settlement of the county school funds must be performed, specifically the requirement that the settlement be made no later than thirty days following the first of July, is directory in nature, but requires substantial compliance.

Campbell, Love, Woodroe & Kizer, John O. Kizer, Charleston, for petitioner.

Catsonis & Linkous, Leo Catsonis, Thomas L. Linkous, Charleston, for respondents.

SPROUSE, Justice:

In this proceeding in mandamus, the Board of Education of Kanawha County seeks two types or relief. Its first requested relief is made under a 1973 statute. Having attempted to appoint its own treasurer under this provision, it seeks to require the Sheriff of Kanawha County, as the respondent, to pay over all funds held on behalf of the Board and thereafter to make monthly payments into the Board's treasury of all funds held for the Board on or before the tenth day of each month. Secondly, the Board of Education asks this Court, under a pre-1973 statute still in existence, to require the Sheriff immediately to settle his accounts of school funds and the Kanawha County School District, and to compel the respondent County Court of Kanawha County to fix a time for such settlement.

The initial relief sought by the relator requires an interpretation of the effect of 1973 amendments upon the laws governing county school funds. It is pertinent, therefore, at the outset of this opinion to note in a general context the law as it existed prior to the action of the Legislature in 1973, and to compare the 1973 changes as they affect this controversy.

Before the adoption of the 1973 amendments, relevant statutes provided that the sheriff was the ex officio treasurer of the county as well as treasurer of other governmental units, including county boards of education, and was to receive, collect and, upon order of the board, disburse all levies and other school monies. The sheriff was authorized, in certain instances, to transfer funds among the various accounts required to be kept. In addition to an annual settlement, the sheriff was required to report each month to the county board a statement of the finances of the county school district.

On April 14, 1973, the Legislature of this State passed Enrolled House Bill No. 1130 (Chapter 121, Acts of the Legislature, Regular Session, 1973, hereinafter referred to as the Act or the 1973 Act) which became effective on July 13, 1973, ninety days from passage. The 1973 Act amended and reenacted several provisions of the Code relating to the fiscal and financial affairs of county school districts, and generally made it possible for a board of education to be more autonomous in its fiscal affairs.

The most salient change for the purpose of resolving the principal issue presented by this petition for a writ of mandamus is the change contained in Chapter 18, Article 9, Section 6, Code 1931, and added by the 1973 Act. A county board of education by this statute is granted the power to appoint, on or before the first Monday in May, a treasurer for the board, which may be in the alternative the sheriff of the county or the 'fiscal officer of the board, or an employee commonly designated as the person in charge of the financial affairs of the county board'. In other words, the board is authorized to substitute one of its own employees as its treasurer instead of the sheriff. Should be board by the first Monday in May of any year elect to designate a treasurer other than the sheriff, Section 6 requires the sheriff to transfer to the board the balnace of funds in his hands as of June thirtieth in that same year. The transfer is to be completed no later than the first of August of that year. After the initial transfer, it is required by Section 6 that all monthly balances in the county school funds be transferred by the sheriff not later than the tenth day of the following month. Provisions complementing and completing these amendments are contained in other sections of the amendatory act.

The present controversy arose after the Kanawha County Board of Education, purporting to act under Code, 18--9--6, as amended by the 1973 Act, appointed Willis W. Moore, Jr., the Board comptroller, as Treasurer. The Board first appointed Moore on April 24, 1973, and readopted the appointment on July 13, 1973. The Superintendent of Schools of Kanawha County notified the Kanawha County Sheriff by letter on June 29, 1973, of its action appointing Moore as Treasurer, and requested transfer of the school board funds as purportedly provided by Code, 1931, 18--9--6, as amended. The Superintendent repeated this request on July 5, 1973 and again on July 17, 1973. On July 12, 1973, the Sheriff of Kanawha County advised the Kanawha County Superintendent of Schools that he would not comply with their request.

The respondent Kanawha County Sheriff admits that Code, 1931, 18--9--6, as amended, permits the board of education to appoint a treasurer on or before the first Monday in May in any year. He contends, however, that this statute was not effective until July 13, 1973, so the school board could not appoint its own treasurer until May, 1974. The Sheriff asserts he has the responsibility to adminsiter the school funds under the pre-1973 laws until at least July, 1974, and that his first accounting, transfer and settlement duties under the amended provisions are not required until July, 1974.

The School Board's position is that, although the amended provisions did not take effect until July 13, 1973, the law was in existence on April 14, 1973 which, of course, is prior to the first Monday in May, 1973. It contends, therefore, that it was entitled to designate a treasurer in May, 1973, even though the treasurer could not act or operate as such until after July 13, 1973.

The amended sections are admittedly not effective until July 13, 1973. Despite this, can they have some effect after April 14, 1973, the date of enactment, but prior to the effective date July 13, 1973?

There can be no doubt that the effect of these amendments is to permit a county board of education to appoint its own fiscal officer or other employee as treasurer of the board of education. If such an appointment is validly made, the administration of school funds is drastically altered. The initial appointment must be effected 'on or before the first Monday in May' of whatever year the board makes such designation. After such a valid appointment, the sheriff clearly has the duty to transfer all appropriate funds to the school board in accordance with provisions of Code, 1931, 18--9--6, as amended, and thereafter to make a transfer of the school board funds on or before the 10th day of each month.

The question is whether the Legislature intended the school boards of the State to be able to take advantage of these provisions in 1973 or whether it was the legislative intent that they not be operative until 1974. The 1973 Act, containing the amended statutes under consideration, was silent as to the effective date of the Act. The effective date was, therefore, controlled by Section 30, Article VI of the Constitution of West Virginia which provides that no act of the legislature shall take effect until ninety days after its passage, unless the legislature shall otherwise direct by a two-thirds vote of the members elected to each house.

Courts and text writers generally agree a statute speaks as of the time when it takes effect and not of the time it was passed. 'Indeed, where a statute does not become operative immediately on its enactment, but the time of its going into effect is postponed until a later date, either by virtue of its own terms or a general statutory or constitutional provision, it ordinarily does not have any effect until the stated period has expired.' 50 Am.Jur., Statutes, Section 500, page 518. See also 2 Sutherland, Statutory Construdtion, Chapter 33, § 33.07, pages 11--12. The relator, Board of Education, however, relies on an exception to this doctrine announced by some courts which hold that a statute can have some effect after its passage by a legislature, but before its effective date. 50 Am.Jur., Statutes, Section 500, page 518.

An enactment of the Illinois Legislature was...