State ex rel. Bd. of Governors of W.Va. University v. Sims
| Decision Date | 04 October 1949 |
| Docket Number | 10177. |
| Citation | 55 S.E.2d 505,133 W.Va. 239 |
| Parties | STATE ex rel. BOARD OF GOVERNORS OF WEST VIRGINIA UNIVERSITY v. SIMS, Auditor. |
| Court | West Virginia Supreme Court |
Submitted Sept. 7, 1949.
Syllabus by the Court.
1. The power to authorize the expenditure of public funds of the State is vested in the Legislature, and, unless delegated by it under its legislative power, either in express terms, or by necessary implication from powers so delegated, it can not be exercised by any subordinate agency of the State government.
2. The powers of supervision, administration and control delegated by the Legislature of this State to the Board of Governors of West Virginia University, do not directly, or through necessary implication arising from the powers expressly delegated, authorize or permit the use by such board of public funds of the State, appropriated to the University for personal service, in payment of retirement benefits to members of the teaching staff of the University who have been retired on account of age.
Ira J. Partlow, Atty. Gen., W. C. Marland, Asst. Atty. Gen Mahan, White & Higgins, James H. White, Fayetteville, for petitioner.
Eston B. Stephenson, Milton S. Koslow, Charleston, for defendant.
This is a proceeding in mandamus in which the relator, Board of Governors of West Virginia University, a corporation, seeks to compel the respondent, Edgar B. Sims, Auditor of the State of West Virginia, to honor a requisition drawn by the State Treasurer on funds appropriated by the Legislature for personal services of officers, teachers and other employees of the State University, and which, if honored, would have authorized the Treasurer of the State of West Virginia to pay retired teachers of the University certain sums of money for the month of April, 1949, under an order of the relator made in the year 1935, and hereinafter dealt with. The appropriation out of which the said sum was to be paid was that provided by the Legislature at its 1947 Session covering the fiscal years ending June 30, in the years 1948 and 1949.
The powers of the Board of Governors of West Virginia University hereinafter called the relator, rest on the provisions of Section 1, Article 11, Chapter 18 of the Code, as amended by Chapter 73, Acts of the Legislature, 1947. That section provides that: Then follows this provision which appears in the 1947 amendment to the Act: 'The board of governors shall have general control, supervision and management of the business and educational affairs of the university and of Potomac state school, and shall have full authority to employ all officers, teachers and other employees of such institutions and fix their yearly or monthly salaries.'
In the year 1935, the Board of Governors instituted a formal program for the payment of retirement benefits to the teaching personnel of the University, who had passed or would pass the age of sixty-five years, and an order was entered instituting such program, designated as Order No. 218, and reading as follows: It appears from the record before us that, following this order, such a retirement program was inaugurated and continued by the relator.
The Legislature of 1941, by Chapter 36 of that session, enacted a teachers retirement system, covering all teachers of the State, including those of the University, which now appears in Michie's Code, 1943, as Article 7A, Chapter 18. Following that enactment, it appears that relator made some change in its retirement program, and, subsequent to the effective date of said general teachers retirement act, the amount paid to retired teachers of the University was reduced, and payments thereafter made was the difference between the amount they would receive under the general teachers retirement system, and that which had been theretofore paid to them out of funds appropriated for the University, in accordance with the policy adopted by Order No. 218, aforesaid. That order seemed to contemplate that, to obtain retirement payments, it would be necessary for retired teachers to perform some work under a limited service status, but in the petition filed by relator herein, it is specifically stated that teachers receiving pay under the University retirement program have not, and are not expected to perform any work or service for the University.
The retirement payments were made out of University funds from time to time, with the approval of the Auditor, respondent herein, until the month of April, 1949; but when a requisition was presented to him covering such payments, accruing within that month, he refused to honor the same, with the result that this proceeding was instituted. On June 17, 1949, we awarded the rule herein. The case now comes on to be heard upon relator's petition and the demurrer of respondent thereto.
Relator's petition filed herein on June 16, 1949, sets up the facts stated above, and alleges that the general powers granted to the Board of Governors cover the right to provide the retirement fund for University teachers as exercised by Order No. 218 quoted above. Also, that relator had 'inherent authority to enter such an order as was entered in 1935, by virtue of the authority vested in it by the Legislature of West Virginia, as expressed in Chapter 18, Article 11, Section 1, Michie's Revised Code, 1931.' Also, that Section 2 of Chapter 36, Acts of the Legislature, 1941, setting up the teachers retirement system, and which reads:
'Nothing in this article shall be construed to preclude any employer from providing retirement benefits to retired teachers not eligible to benefits under this article; nor shall it be construed to preclude any employer from supplementing retirement benefits to be received by any of its employees under this article.
'No such benefits, however, shall be paid to a present teacher who elects not to become a member of the teachers' retirement system.'
Amounts to a recognition of the authority of relator to make the payments authorized under the Order No. 218 aforesaid. The petition also avers the power of the Legislature to authorize the use of public funds to provide retirement pay to teachers; and avers that the making of such payments will not in any wise violate the provisions of the Constitution of this State.
The respondent files his demurrer to the said petition assigning seventeen separate grounds therefor. It seems unnecessary to go into great detail in respect to these grounds. The demurrer avers that the Board of Governors could not legislate a retirement pension plan; that the University retirement program is unauthorized by law and is made without express authority of law, and prohibited by Section 38 of Article VI of the Constitution of West Virginia; that the recipients of such fund, under such program, are without legal standing under the theory of a moral obligation; that an appropriation for personal services amounting to $2,150,000, made for the fiscal years 1947-48 and 1948-49, by the 1947 Session of the Legislature showed no legislative intent that such funds might be used for payments to retired personnel of the University who performed no additional services; that it was unlawful for the Board of Governors to incur any liability during any fiscal year which could be paid out of the then current appropriation for such year; that the Legislature could not authorize the payment of any claim upon an agreement or contract made without express authority of law; that such authorization would amount to the contracting of a debt in violation of Section 4, Article X of the State Constitution; that such payment would constitute a gift or gratuity of the State within the prohibition of Section 6, Article X of the Constitution; that such payment is prohibited by Section 38, Article VI of the State Constitution, hereinafter quoted; that no provision of law exists which authorizes supplemental payments in addition to payments under the general teachers retirement fund aforesaid; that custom does not justify violation of statutory and constitutional provisions; and finally, a reliance upon the statute of frauds, Code, 55-1-1, which provides that no action shall be brought on any agreement not to be performed within a year unless such agreement be in writing.
Inasmuch as many of the questions raised in this proceeding depend on the construction of Section 38, Article VI of the Constitution of this State, said section is here quoted. The pertinent provisions are that: 'No extra compensation shall be granted or allowed to any public officer, agent, servant or contractor, after the services shall...
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