State ex rel. Board of Governors of W. Va. University v. Sims

Decision Date23 May 1950
Docket NumberNo. 10271,10271
PartiesSTATE ex rel. BOARD OF GOVERNORS OF WEST VIRGINIA UNIVERSITY, v. SIMS, Auditor. Case
CourtWest Virginia Supreme Court

Syllabus by the Court.

1. Moneys derived under Section 2, Article 1-a, Chapter 83, Acts of the Legislature, Regular Session, 1943, by state educational institutions from admission fees to athletic contests, and from contracts for student athletic teams of state educational institutions to contest with other athletic teams inside and outside the State are public moneys within the meaning of Subsection (d) and Subsection (j) of Code, 12-2-2, as amended by Chapter 28, Acts of the Legislature, Regular Session, 1931, and Chapter 64, Acts of the Legislature, Regular Session, 1941.

2. By legislative fiat, Code, 18-11-1, as amended by Chapter 73, Acts of the Legislature, 1947, and Section 1-a, Chapter 89, Acts of the Legislature, 1947, the board of governors of West Virginia University is a public and governmental body and as such is an arm of the State, vested with a wide discretion as to the expenditure of money derived under the provisions of Section 2, Article 1-a, Chapter 83, Acts of the Legislature, Regular Session, 1943, and deposited in the state treasury in the 'State Special Athletic Receipts Fund.'

3. The director of athletics of West Virginia University has a wide discretion, under the direction of the board of governors of the university to contract for the cost of medical and hospital services for student athletes injured in intercollegiate athletic contests.

4. Section 2, Article 1a, Chapter 83, Acts of the Legislature, Regular Session, 1943, interpreted to permit payment, upon requisition to the state auditor for the payment from the 'State Special Athletic Receipts Fund' of the cost of medical and hospital services rendered to a student athlete of a State educational institution injured in an intercollegiate athletic contest is not unconstitutional as being in derogation of Article X, Section 6 of the Constitution of West Virginia.

5. In the absence of an abuse of discretion on the part of the board of governors of West Virginia University, the Auditor of the State of West Virginia has the mandatory duty to honor the requisitions of the board to cover payment of the cost of medical and hospital services rendered to a student athlete injured in an intercollegiate athletic contest, and to issue his warrants thereon which mandatory duty will be enforced, upon the auditor's nonperformance thereof, by writ of mandamus.

William C. Marland, Atty. General, Eston B. Stephenson, Asst. Atty. Gen., for petitioner.

Milton S. Koslow, Charleston, George W. Stokes, Charleston, for respondent.

RILEY, Judge.

In this original proceeding in mandamus, the relator, Board of Governors of West Virginia University, seeks to compel Edgar B. Sims, Auditor of the State of West Virginia, by peremptory writ of mandamus to honor requisition No. 3016, providing for the payment to the Monongalia General Hospital of $116.35, to Dr. Justus C. Pickett, $125.00, and to Dr. Eldon b. Tucker $15.00, aggregating $256.35, and to draw his warrant in said several amounts payable to the said claimants.

This case is submitted on the petition filed by relator; the answer of the respondent auditor; the replication to the respondent's answer; and depositions filed as a part of the record of this proceeding.

On or about March 20, 1950, at relator's direction, requisition No. 3016, signed by Dr. C. T. Neff, Jr., vice-president of West Virginia University, was drawn on account No. 6631-1, the State Special Athletic Receipts Fund, for the purpose of paying three certain invoices directed to the athletic department of West Virginia University, covering the aforesaid claims for services rendered J. Robert Murphy, a student at the university and a member of its football team, consisting of hospitalization and medical treatment in connection with injuries received by Murphy while participating for the university in an intecollegiate athletic contest. The fund on which these claims was drawn is a special collection fund, consisting of money received from gate receipts derived from general admission charges, compulsory student athletic fees and the amount of guarantees paid on behalf of competing athletic teams.

The relator urges that the fund is more than ample to meet the charges made upon it for athletic expenditures, including hospital and medical expenses, as evidenced by the fact that there has been a balance or profit in the fund since the year 1939 above costs and expenses incurred against the fund; but from respondent's answer it appears that for the fiscal year ending June 30, 1949, the receipts and expenditures of the fund were as follows: Compulsory student athletic fee collections, $100,120.20; gate receipts, $88,690.99; and guarantees, $54,434.07, making a total of $241,245.26, and that the total expenditures from the fund for that fiscal year were in the amount of $240,709.34, making a net profit for the year of $535.92. The respondent auditor, however, contends that said sum of $535.92 was not a true profit, as the salaries of the athletic director, Roy M. Hawley, the director of publicity for athletics, and various head and assistant coaches were, in part, paid from the general revenue of the State in the amount of $10,050.00 to the school of physical education and athletics account No. 4650 and to intercollegiate athletic account No. 11100 in the amount of $30,350.00, or a total of $40,400.00.

From the depositions taken, especially the testimony of Dr. Neff, who in addition to being vice-president and comptroller of the university, is secretary of the board of governors, it appears that for many years in the past the director of athletics has made arrangements, without participation of the student, with physicians and hospitals when an injured athlete requires hospitalization or medical services; and further that it has been the custom of the athletic department to submit requisitions for and pay hospital bills and medical expenses of injured athletes when required. Dr. Neff testified that it is the general custom, not only of the university but of every college and university concerning which he has knowledge, that injuries resulting from athletic contests are taken care of by the institution itself. However, witness was unable to testify that there had been a holding out to students of the university who participate in athletic contests that their hospital and medical expenses would be paid out of the athletic fund.

Further this record discloses that respondent auditor until very recently has honored requisitions for medical and hospital expenses such as are involved in this proceeding. While the respondent auditor testified that generally until recently claims such as those under appraisal have not been brought to his personal attention, it appears that on June 23, 1939, on the advice of the attorney general, the auditor honored a claim, dated October 5, 1926, of Dr. Chesney M. Ramage, for services rendered one Russell Nuzum, an injured athlete, whose injury consisted of a broken leg. This latter claim, however, unlike the instant claim, was based on a specific Act of the Legislature, 1939, Chapter 7, authorizing payment to Dr. Ramage.

It is contended by the relator that the hospitalization and medical expenses involved here are an incidental expense of the athletic department in maintaining the athletic program in the administration of the affairs under the supervision of the department. Reliance is had on Section 2, Article 1-a, Chapter 83, Acts of the Legislature, Regular Session, 1943, which reads as follows:

'The directors of athletics at state educational institutions may fix and charge admission fees to athletic contests at state educational institutions, and may enter into contracts, spend and receive money under such contracts, for the student athletic teams of state educational institutions to contest with other athletic teams inside or outside the state.

'All money derived from such fees and under such contracts shall be used to defray the cost of maintaining the athletic department and athletic program of such institutions.'

It is contended by relator that the payment of hospital and medical expenses of injured students from the athletic fund is incidental to 'maintaining the athletic department and athletic program' of West Virginia University, and other state educational institutions; and that the foregoing statute has been interpreted by a long-standing administrative interpretation as shown by the approval of the state auditor of requisitions on such fund for the payment of claims such as are involved here.

This Court in the case of State v. Davis, 62 W.Va. 500, pt. 4 syl., 60 S.E. 584, 14 L.R.A.,N.S., 1142, held: 'A contemporary exposition of a statute, uncertain in its meaning, recognized and acquiesced in for a long period of time by the officers charged with the duty of enforcing it, the courts, the Legislature, and the people, will be adopted unless it is manifestly wrong.' See also State ex rel. Brandon v. Board of Control, 84 W.Va. 417, pt. 2 syl., 100 S.E. 215.

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