State ex rel. Christian v. St. Clair, 12803

• Decision Date: 02 April 1969
• Docket Number: No. 12803,12803
• Citation: 166 S.E.2d 785,153 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Jack L. CHRISTIAN, Sheriff, McDowell County, et al., etc. v. E. L. ST. CLAIR, President, etc., County Court of McDowell County.

Page 785

166 S.E.2d 785

153 W.Va. 1

STATE ex rel. Jack L. CHRISTIAN, Sheriff, McDowell County, et al., etc. v. E. L. ST. CLAIR, President, etc., County Court of McDowell County.

No. 12803.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 18, 1969.

Decided March 4, 1969.

Dissenting Opinion April 2, 1969.

Syllabus by the Court

A temporary appointment by a sheriff of a deputy is for a limited time in contrast to a permanent one which is for an indefinite time, during which time the deputy serves at the will and pleasure of the sheriff for such temporary appointment, and after taking the proper oath and giving the bond required of him, all of which had the approval, entered of record, of the county court he is a de jure officer and entitled to be compensated for his services in accordance with the salary fixed by the sheriff which was within the appropriations previously approved for the sheriff's office by the county court, and the president of the county court of the county in which the sheriff is serving can be required by writ of mandamus to sign a properly prepared order or warrant for the salary of the deputy, regardless of the fact that the county court had previously failed to consent to the permanent appointment of the same deputy.

Robert D. Bailey, Pineville, Harry J. Capehart, Jr., Welch, for relators.

Henry C. Bias, Jr., Charleston, for respondent.

BERRY, Judge:

This is a proceeding in mandamus instituted in this Court to compel the respondent, E. L. St. Clair, President of the County Court of McDowell County, to sign the several checks or warrants for the payment of services performed by the petitioners Barbara Moore, Leonard Bolt, Jackie Frederick, George Deskins, Ronnie Mathis, Roy Smith, Gerald Smith and Charles Lawson as deputies of Jack L. Christian, Sheriff of McDowell County, from January 7, 1969 through January 31, 1969. A rule to show cause was issued by this Court on February 10, 1969 returnable February 18, 1969 at which time it was submitted for decision of this Court on arguments and briefs.

The facts in this case are relatively simple and are not disputed. On January 1, 1969 the petitioner Jack L. Christian, the duly elected sheriff of McDowell County, appeared before the County Court of McDowell County and submitted a written list containing the names of twenty individuals whom he desired to appoint as deputy sheriffs of McDowell County, West Virginia, with their salaries fixed by him within the appropriation contained in the budget and approved by the county court, and he requested the consent of the county court to such appointments in accordance with the provisions of Chapter 6, Article 3, Section 1(a)(2), as amended.

The county court by order entered January 1, 1969 consented to the appointment of eleven of those appearing on the list submitted by the sheriff as said deputies, deferred action on its consent to the appointment of one of the deputies until a later date, but failed to consent to the appointment by the sheriff of eight of the individuals, petitioners herein, whose names appeared on the list of appointments submitted by him to the county court, the selection of those eight having been blocked because a motion to consent to appointment received no second.

On January 7, 1969 the petitioner Jack L. Christian, sheriff of McDowell County, requested the Circuit Court of McDowell County to assent to the appointment of the eight deputy sheriffs, petitioners herein, for temporary service or duty, in accordance with the provisions of Code, 6--3--1(a)(3), as amended. The reason given for the request for the assent of the circuit court for such appointments was that the failure of the county court to consent to the appointment of the eight deputies here in question left the office of the sheriff without a sufficient number of experienced officers and persons capable of performing duties of deputies in the respective capacities in which they would be used, and thereby created a condition impeding police work in the county and impeding the conduct of the sheriff's office work.

The Circuit Court of McDowell County, after finding that public interest required the assent to the appointments requested by the sheriff, assented to the appointment of the eight deputies, which the salaries fixed by the sheriff within the appropriation for such payment approved on a preceding budget by the county court, for the performance of temporary service or duty to serve at the will and pleasure of the sheriff of McDowell County.

After the order was entered by the circuit court assenting to the appointment of the eight deputies involved in this proceeding, each of them qualified to perform such service or duty by taking the proper oath of office and executing proper bonds required by the sheriff in such cases, all of which were approved and confirmed by the county court in an order of the court entered January 7, 1969.

On January 31, 1969 the clerk of the county court drew orders or warrants on the county funds, which were also signed by the sheriff, directing the McDowell County Bank to pay such orders but the respondent refused to sign these orders.

The respondent filed a demurrer and answer to the petition in which it was contended that the action on the part of the circuit court in assenting to the appointments of the petitioners as deputies, in accordance with the provisions of Code, 6--3--1(a)(3), as amended, constituted the performance of a non-judicial function by the circuit court and violated the provisions of Section 1 of Article V of the Constitution of West Virginia, dealing with the separation of powers, which reads as follows: 'The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the legislature.' The answer of the respondent denied that the petitioners Barbara Moore, Leonard Bolt, Jackie Frederick, George Deskins, Ronnie Mathis, Roy Smith, Gerald Smith and Charles Lawson were legally appointed deputies of the sheriff but admitted that each of said petitioners took the oath of office of deputy sheriff of McDowell County and gave bond, which was approved and confirmed by the county court as required by law, all of which was done upon the advice of the prosecuting attorney of McDowell County, and the answer admitted that all of the petitioners above have been acting and serving as deputy sheriffs from January 7, 1969 through January 31, 1969.

It is contended by the respondent that although the petitioners were appointed deputy sheriffs they were appointed to perform temporary service or duty, that there was no specific time as to the length for the temporary duty or services to be performed, and that inasmuch as they were to serve at the will and pleasure of the sheriff such appointments would be indefinite and of a permanent nature and therefore would allow the sheriff of McDowell County to do by indirection that which he could not do directly and would result in the failure of the county court to consent to said appointments being rendered meaningless.

In the case of Hockman v. Tucker County Court, 138 W.Va. 132, 75 S.E.2d 82, it was held that a sheriff can not compel the county court to consent to the appointment of his deputies. In that case the sheriff appointed a deputy who accepted the appointment, executed the bond and entered into the performance of his duties as deputy sheriff. The county court met at a regular session after the appointment and a motion for the consent to or approval of the appointment was not considered or adopted as in the case at bar, but at the same time, unlike it, no action was taken to approve the bond which was executed by the deputy who had been appointed. Later, at a special session of the county court in the Hockman case a motion was made to disapprove the appointment of the deputy which was adopted by a vote of two to one. At the same time a motion was made to pay the salaries of the deputy who had been appointed and had performed the duties as deputy from the 1st to the 24th of January which was adopted by a unanimous vote and he was paid for the service or duty he had performed. It was held in point 2 of the syllabus of the Hockman case that: 'The county court has the positive authority to consent or to refuse to consent to an appointment by the sheriff of his deputy and its action in exercising such authority is not subject to judicial direction or control.'

In discussing the question involved in the Hockman case, a question similar to the one presented here, this Court said:

'Article VIII, Section 24, of the Constitution of West Virginia relating to county courts to the extent here pertinent provides that 'They shall also, under such regulations as may be prescribed by law, have the superintendence and administration of the internal police and fiscal affairs of their counties, * * *.' Section 1, paragraph (a)(2), Article 3, Chapter 6, Code, 1931, as amended, is in this language: 'A sheriff, surveyor of lands, or assessor may, with the consent of the county court duly entered of record, appoint any person or persons his deputy or deputies.' The paragraph just quoted prescribes no qualifications for any person appointed as any such deputy. Paragraph (a)(3), of the same section, article and chapter is expressed in these terms: 'A sheriff, when in the opinion of the judge of the circuit court the public interest requires it, may, with the assent of said court, duly entered of record, appoint any person or persons his deputy or deputies to perform temporary service or duty.' By the first quoted provision of the statute the Legislature vested in the sheriff the authority to appoint his deputy and in the county court the authority to consent or not to consent to such...