State Ex Rel. Buxton v. O'brien, (No. 5155.)

• Court: Supreme Court of West Virginia
• Writing for the Court: McGINNIS, J
• Citation: 125 S.E. 154
• Parties: STATE ex rel. BUXTON. v. O'BRIEN, Judge, et al.
• Docket Number: (No. 5155.)
• Decision Date: 14 October 1924

125 S.E. 154

STATE ex rel. BUXTON.
v.
O'BRIEN, Judge, et al.

(No. 5155.)

Supreme Court of Appeals of West Virginia.

Oct. 14, 1924.

(Syllabus by the Court.)

Original proceeding in mandamus by the State, on the relation of P. B. Buxton, Clerk of Circuit Court of Mason County, against Hon. W. H. O'Brien, Judge of Circuit Court of Mason County, and others. Writ refused.

B. H. Blagg and F. G. Musgrave, both of Point Pleasant, for relator.

Robert L. Hogg, of Point Pleasant, for respondents.

McGINNIS, J. An alternative writ was awarded by this court against the county court of Mason county, and W. H. O'Brien, judge of the circuit court of said county, upon the petition of P. B. Buxton, clerk of the circuit court of said county. The writ was made returnable before this court on the 29th of May, 1924, and was so served upon the respondents.

The writ alleges that the relator is clerk of the circuit court of Mason county; that his duties as such clerk are many and onerous; and that by reason of said many duties required of him by law it is necessary that he have clerical assistance in the performance of the duties so required of him; that, pursuant to section 40 of chapter 137 of Barnes' Code, relator filed with the county court of said county, on or before the 1st day of December, 1923, as required by law, a detailed statement of the probable amount necessary to be expended for deputies and clerical assistance, naming as his deputy one D. W. Brown, and requesting that he be paid $100 per month; that said amount Is reasonable, that said statement was carefully made, and that the amount set forth therein is no more than is necessary to carry on the work of said office; that it became the duty of the county court, not later than 15 days after the filing of said statement, to meet and consider the same concurrently with the judge of the circuit court of said county, and to determine and fix an aggregate sum to be expended for the period cov-

[125 S.E. 155]

ered by same for each deputy and assistant; and further alleges that said county court disregarded its duty in this respect, in that it did not meet concurrently with the judge of the circuit court of said county and take up and consider said statement, and determine and fix an aggregate sum to be expended for deputies and assistants in said office, and has wholly failed to do so; that with utter disregard for its duties in the premises, and without the concurrent action of the judge of the circuit court of said county, and without considering or attempting to ascertain the amount of work necessary to be done in said office, the county court met on the 15th day of December, 1923, and independently of one of its own members, and without the concurrent action of the judge of the circuit court of said county, pretended to fix the amount to be so paid at $175 per year; that said sum is grossly inadequate; that the action of the county court in pretending to fix said amount was arbitrary and capricious, and evidences a purpose to evade the due and faithful performance of its duty in this regard, and is a plain abuse of its discretionary power.

The writ further alleges that, as required by law, the relator proceeded to employ, in the month of December, 1923, such deputies as was necessary for his office, and to fix their compensation; and that, so acting, he employed D. W. Brown, a competent person, as his deputy, and fixed his compensation at $100 per month for said year, and so reported to the said county court; that since the appointment of said Brown he has at all times been faithfully performing his duties as such deputy clerk, and that said county court has failed and refused to pay said compensation to said Brown; that, unless the county court is required to pay for the services of a deputy, relator will be unable to secure assistance necessary for the proper conduct of said office; that the work required to be done in said office is more than can be done by one man, and that relator's salary as clerk is only $1,800 per annum; and that he cannot afford to pay for the services of a deputy from his own salary; that, unless the services of a deputy are paid for by the county court, relator will have to do without the services of a deputy, and so will be greatly handicapped in the performance of his duties, and the interests of the state and county, as well as those having business with said court, will seriously suffer thereby.

On the prayer of relator an alternative writ of mandamus was issued, requiring Hon. W....