State ex rel. Canterbury v. County Court of Wayne County

• Decision Date: 12 December 1967
• Docket Number: No. 12698,12698
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Frank CANTERBURY, etc. v. The COUNTY COURT OF WAYNE COUNTY, W. Va., etc., Pearl E. Booth et al.

Page 151

158 S.E.2d 151

151 W.Va. 1013

STATE ex rel. Frank CANTERBURY, etc. v. The COUNTY COURT OF WAYNE COUNTY, W. Va., etc., Pearl E. Booth et al.

No. 12698.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 28, 1967.

Decided Dec. 12, 1967.

Syllabus by the Court

1. The duty of a county court under Code, 7--7--7, as amended, to fix an aggregate sum to be expended during the ensuing fiscal year for the compensation of the deputies, assistants and employees of county officials named therein is of an administrative, not a judicial, nature.

2. In the absence of arbitrary action on the part of a county court in the exercise of its discretion as to the sum to be allotted to the office of the county clerk for the compensation of deputies and assistants for the ensuing fiscal year, in accordance with the provisions of Code, 7--7--7, as amended, mandamus will not lie.

3. 'Mandamus is a proper remedy to compel tribunals and officers exercising discretionary and judicial powers to act, when they refuse to do so, in violation of their duty, but it is never employed to prescribe in what manner they shall act, or to correct errors they have made.' Syl. Pt. 1, State ex rel. Buxton v. O'Brien and the County Court of Mason County, 97 W.Va. 343, 125 S.E. 154.

Baer & Napier, Philip A. Baer, William K. Napier, Huntington, for appellants.

Greene, Ketchum, Baker & Pauley, Lawrence L. Pauley, Huntington, for appellee.

BROWNING, Judge.

Petitioner, Frank Canterbury, as a resident and taxpayer of Wayne County and as Clerk of the County Court of Wayne County, West Virginia, instituted a proceeding in mandamus in the Circuit Court of Wayne County to compel the respondents, the County Court of Wayne County and Pearl E. Booth and Barney Asbury, commissioners thereof, to reconvene and reconsider the estimate and levy for the fiscal year 1967--68 and to allocate a sufficient sum of money for the efficient conduct of the office of the petitioner for that fiscal year. Respondents demurred to the petition on the ground that mandamus does not lie inasmuch as respondents have performed the duties imposed upon them by law and answered, asserting that sufficient funds have been allocated. The Circuit Court of Wayne County overruled the demurrer and after a hearing granted the writ as prayed for, holding in his opinion that while the respondents had not acted in a wilful or arbitrary manner, insufficient money had been allocated for the efficient conduct of petitioner's office, to which order this Court granted an appeal and supersedeas on October 2, 1967. Due to the exigencies of the situation, petitioner was granted leave to move to affirm as provided by Code, 58--5--25, and the case was heard and argued upon the original record.

Code, 7--7--7, as amended, provides in the parts here pertinent that: 'The sheriff, clerk of the county court, clerk of the circuit court, clerk of the criminal, common pleas or intermediate courts, on or before March first of each year, shall file with the county court * * * a detailed statement of the probable amount necessary to be expended for deputies, assistants, and other employees of their respective offices in the following fiscal year. * * * The county court * * * shall not later than March twenty-eighth, take up and consider the same and shall determine and fix an aggregate sum to be expended for the period covered by such statement for the compensation of all such deputies, assistants, and other employees of the respective officers, which shall be reasonable and proper, regard being had to the amount of labor necessary to be performed by those who receive the compensation, and shall enter upon its court record a finding of its action.'

Pursuant to this statute the petitioner on or before the first day of March, 1967, filed a detailed statement setting forth the names of ten deputies and assistants and the compensation to be paid to them totalling the sum of.$46,800.00, the amount allocated by the respondents for the conduct of his office in the preceding fiscal year. The county court reduced the aggregate sum to the amount of $29,400.00 to which petitioner objected, his objections were overruled, and petitioner instituted the present action in the Circuit Court of Wayne County.

At the hearing before the circuit court the petitioner testified that he was first elected to the office of county clerk in 1956 at which time eight deputies were employed in the office; the work increased and two additional deputies were employed in 1962; since 1962 the work has continued to increase and, although modern equipment has been purchased and utilized, it is still necessary for some employees upon occasion to work overtime in order to conduct his office efficiently. He also testified that he could not obtain competent help at smaller salaries than those requested and could not operate his office in an efficient manner as required by law for the amount allocated by the respondents. He is corroborated in his testimony by his chief deputy clerk who testified to the same effect. Mr. Ira McCoy, a member of the County Court of Wayne County, testified that he dissented to the reduction in petitioner's budget, did not believe petitioner could efficiently conduct his office on the amount allocated by the respondents and, in effecting the reduction, the respondents did not compare the work load of petitioner with that of other county clerks' offices but used only population figures for comparison.

For the respondents, respondent Booth testified that Wayne County had incurred a fiscal deficit of approximately $130,000.00 prior to 1966; after conferences with the state tax commissioner it was agreed that approximately $34,000.00 would be paid back in fiscal 1966--67 with no definite understanding as to when the balance of approximately $96,000.00 would have to be repaid; in an endeavor to repay this balance in fiscal 1967--68, and being of the opinion that the budgets of certain offices were too high in comparison to counties of like size, they effected the instant reduction by comparing the population, budget, and the amount appropriated for the office of County Clerk of Wayne County with the same statistice for Marshall, Mingo, Monongalia and Fayette Counties. Mr. Booth admitted that the work load of the aforementioned counties was not compared in any way. His testimony is corroborated by the respondent Asbury and to a limited extent by a Mr. Whited, Assistant Director, Division of Inspection and Supervision of Public Offices, State Tax Department, who admitted on cross-examination that he was supplied with the figures from which he testified by Mr. Booth.

As heretofore mentioned, after considering the evidence taken at the hearing, the Circuit Court of Wayne County found that although the action of the respondents was not arbitrary and capricious, the amount allocated would not permit the petitioner to conduct his office in an efficient manner as prescribed by law and ordered respondents to reconvene and to redetermine and reallot a sufficient sum of money for the continued operation of petitioner's office, to which action this Court granted an appeal. It has been stipulated that the Clerk of the Circuit Court of Wayne County is affected by a reduction of her budget and has instituted a like proceeding in mandamus below, which will be governed by the decision in the instant case.

Article VIII, Section 3 of the constitution of this state gives this Court original jurisdiction in mandamus and Section 12 of that article confers upon circuit courts original and general jurisdiction of that extraordinary proceeding. In this case the original jurisdiction of the Circuit Court of Wayne County was invoked and the case comes to us upon appeal from that court's decision, but in determining his power in that regard was must apply the same principles as would be applicable had this case arisen initially in this Court. The test by which it is determined whether a petitioner in the extraordinary proceeding of mandamus is entitled to relief is not the same as it is in the ordinary civil case. In the latter it is enough that he prove his right to relief by a preponderance of the evidence. In mandamus he must show a clear legal right to the relief sought and before such relief may be granted by a court it must be shown that the respondent has a mandatory duty to perform the act required of him and it is never enough merely to show that the action of the respondent was not in accord with the opinion of the court with regard to the matter under consideration. In other words, if the respondents have a discretion they may be required by mandamus to act, but the court is without authority to command in what manner they shall act unless the action of the respondents is so arbitrary and capricious as to create a question for judicial determination. It is not necessary that authority be cited for these fundamental principles applicable to the extraordinary proceeding of mandamus. In the case of In re Boggs' Estate, 135 W.Va. 288, 63 S.E.2d 497, this Court held that county courts have unlimited jurisdiction within the scope of the powers delegated to those courts under Article VIII, Section 24 of our state constitution. However, that section also contains the provision that: '* * * They shall also, under such regulations as may be prescribed by law, have the superintendence and administration of internal police and fiscal affairs of their counties, * * *.' and in State ex rel. County Court of Cabell County v. Battle, Comm'r, 147 W.Va. 841, 131 S.E.2d 730, this Court noted that this provision reposes much regulatory authority over county courts in relation to fiscal affairs in the legislature. It necessarily follows that any such regulation, if otherwise valid, which the legislature might choose to impose upon a county court in conducting its fiscal affairs may be enforced in mandamus.

It is obvious that the action of the Co...