State ex rel. Cooke v. Jarrell, 12982

• Decision Date: 27 October 1970
• Docket Number: No. 12982,12982
• Citation: 177 S.E.2d 214,154 W.Va. 542
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Ed COOKE, Sheriff of Boone County, West Virginia v. Delano JARRELL et al., Members of County Court of Boone County, West Virginia.

Page 214

177 S.E.2d 214

154 W.Va. 542

STATE ex rel. Ed COOKE, Sheriff of Boone County, West Virginia v. Delano JARRELL et al., Members of County Court of Boone

County, West Virginia.

No. 12982.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 2, 1970.

Decided Oct. 27, 1970.

Syllabus by the Court

1. A sheriff who files with the county court a detailed statement of the probable amount necessary to be expended for deputies, assistants and other employees in the following fiscal year may, upon the determination and fixing by the county court of the aggregate sum to be expended for that purpose, grant additional compensation to his deputies and employees for additional duties performed by reason of a vacancy in his office and a writ of mandamus will lie to compel the county court to make such payment so long as the aggregate amount approved by the county court is not exceeded.

2. 'To entitle one to a writ of mandamus, the party seeking the writ must show a clear legal right thereto and a corresponding duty on the respondent to perform the act demanded.' Point 4, Syllabus, State ex rel. Zagula v. Grossi, 149 W.Va. 11.

P. W. Hendricks, Madison, for relator.

Mat D. Bouldin, Pros. Atty., Madison, for respondents.

CAPLAN, Judge:

In this original proceeding in mandamus the petitioner, Ed Cooke, Sheriff of Boone County, seeks to compel the respondents, Delano Jarrell, Cledith Halstead and Robert Rogers, as members of the County Court of Boone County, to pay certain sums of money which he alleges to be due and owing to his deputies and employees as supplemental salaries. Upon the petition this Court issued a rule returnable September 2, 1970, on which date the matter was submitted for decision upon said petition and its exhibit, the demurrer and answer of the respondents with exhibits, the reply of the petitioner to the answer and upon the arguments and briefs of counsel for the parties.

It is alleged in the petition that the petitioner, on June 26, 1970, filed a supplemental payroll requesting the County Court of Boone County to pay supplemental salaries for the month of June, 1970, to certain of his deputies. The petitioner further alleges that such salaries are to be paid from the amount remaining in the sheriff's budget which was approved by the county court for the fiscal year 1969--1970; that the reason for the supplemental pay is that the deputies performed additional duties because of the absence of a former deputy; and that the respondents refused to make such payments, which refusal is arbitrary. By reason thereof, the petitioner seeks this writ.

In their demurrer the respondents assert that the petition is not sufficient in law because the county court was not made a party to this proceeding; that the petition is too vague to entitle the petitioner to any relief; and that in refusing to honor the petitioner's request the respondents 'exercised their judgment in the matter, and, therefore, have not refused to perform any duty which they are or might be by law compelled to perform.'

The respondents' answer ways that the supplemental payroll was not filed by the petitioner until 1:56 P.M. on June 26, 1970, the county court having adjourned its session at twelve o'clock noon on that day. Therefore, they allege that the paper filed by the petitioner was not considered until July 1, 1970, their next regular session; that there is no balance remaining in the sheriff's account; that the county is without funds with which to make the requested payments; that the deputies and employees had been paid their full June, 1970 salaries on June 24, 1970; and that the county general funds show a deficit in the amount of $2,223.68.

The contention of the respondents that the petition is fatally defective because the County Court of Boone County was not made a party to this proceeding is without merit. The respondents are made parties to this action in their official capacity as members of the county court. No relief is sought against them individually. They are in fact the county court and as such perform the duties thereof. It is not, therefore, fatal to this action to have omitted the county court as a party. See State ex rel. Aultman v. Ice, 75 W.Va. 476, 84 S.E. 181.

The basic question presented here is whether the petitioner has shown a clear legal right to the payment of supplemental salaries for his deputies and a clear legal duty on the part of the respondents to make such payment. Such showing must be made to support the granting of a writ of mandamus. American Industrial Leasing Company v. McElroy, 152 W.Va. 587, 165 S.E.2d 617; State ex rel. Waller Chemicals, Inc. v. McNutt, 152 W.Va. 186, 160 S.E.2d 170; State ex rel. Zagula v. Grossi, 149 W.Va. 11, 138 S.E.2d 356.

The rights and duties of the parties hereto, in relation to compensation paid to the employees of a sheriff, are governed by statute. It is provided in Code, 1931, 6--3--1(a)(5), as amended, that a sheriff and his deputies shall receive for the performance of their duties only that compensation provided and paid out of public funds in the manner provided by law. The manner in which deputies of a sheriff are appointed and their compensation fixed is provided in Code, 1931, 7--7--7, as amended, the pertinent parts of which read as follows:

'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 * * * 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, * * * regard being had to the amount of labor necessary to be performed by those to receive the compensation * * *.

'The officers herein named shall appoint and employ such deputies, assistants and other employees in the manner provided by law, as may be necessary for their respective offices and fix their compensation, and shall file with the clerk of the county court, * * * a statement in writing showing such action and setting forth the name of each deputy, assistant and employee, the time for which employed and the monthly compensation; but the compensation for all deputies, assistants and other employees shall not exceed in the aggregate, for each office, the amount so fixed for that office as hereinbefore provided.'

The above quoted statute gives to a county court the final determination in relation to the aggregate sum to be expended for the salaries of a sheriff's deputies. If that body believes that the amount submitted by the sheriff for the payment of such salaries is excessive, it may refuse to approve his budget. In that event the sheriff would be obligated to reduce the overall amount by reducing the number of deputies or reducing their proposed salaries.

The sheriff, by virtue of the above statute, is also given certain authority. He is authorized to fix the amount of compensation to be paid to each deputy. This authority is unlimited so long as the compensation for all of the sheriff's deputies and other employees does not exceed the aggregate amount approved by the county court for that purpose.

An examination of Code, 1931, 7--7--7, as amended, reveals that it is the sheriff who appoints his deputies and fixes their compensation, not the county court; that the county court has control as to the aggregate amount to be expended on such compensation; and that the sheriff may not, in the payment of his deputies, exceed the aggregate amount approved by the county court for that purpose. It is quite apparent that the legislature intended to and did give the county court the authority to limit the amount of county funds to be expended on the sheriff's office for salaries. Once that amount is determined, the manner in which such funds are distributed is left entirely in the hands of the sheriff. As herein noted, the only statutory limitation is to expend for salaries no more than the amount approved by the county court.

The respondents contend that the county treasury is exhausted and that no funds remain with which the requested payments can be made. Therefore, relying on Code, 1931, 11--8--26(4), as amended, they say they are precluded from paying such supplemental salaries. That statute, where pertinent, provides that the county court shall not expend money in excess of the funds available for current expenses. This provision does not apply to the aggregate sum approved by the county court for expenditure by the various officers named in Code, 1931, 7--7--7, as amended. When the county court approves an overall sum to be expended by the sheriff for salaries of his deputies and employees that sum must remain available and cannot, after such approval, be reduced by the court. See State ex rel. Henson v. County Court of Putnam County, 93 W.Va. 316, 116 S.E. 704. The sheriff may rely on the approved amount and if the county court overspends so as to take funds from that allocated to the sheriff it must be responsible for any shortage in the sheriff's approved budget.

It is further urged by the respondent that the request for supplemental salaries was not considered by the county court until after the end of the fiscal year and that it could not therefore properly comply with the petitioner's request. According to the exhibit filed with the petition the request by the petitioner was filed in the office of the Clerk of the County Court of Boone County on Friday, June 26, 1970. It was therefore timely filed for consideration by the county court within the fiscal year. See State ex rel. Henson v. County Court of Putnam County, 93 W.Va. 316, 116 S.E. 704.

While the respondents readily...