State ex rel. County Court of Cabell County v. Battle

• Decision Date: 09 July 1963
• Docket Number: Nos. 12240,12241,s. 12240
• Citation: 147 W.Va. 841,131 S.E.2d 730
• Court: West Virginia Supreme Court
• Parties: . v. G. Thomas BATTLE, as State Tax Commissioner, etc. STATE ex rel. the COUNTY COURT OF WYOMING COUNTY, etc. v. G. Thomas BATTLE, as State Tax Commissioner, etc. Supreme Court of Appeals of West Virginia

Page 730

131 S.E.2d 730

147 W.Va. 841

STATE ex rel. the COUNTY COURT OF CABELL COUNTY, etc. v. G. Thomas BATTLE, as State Tax Commissioner, etc.

STATE ex rel. the COUNTY COURT OF WYOMING COUNTY, etc. v. G. Thomas BATTLE, as State Tax Commissioner, etc.

Nos. 12240, 12241.

Supreme Court of Appeals of West Virginia.

Submitted June 4, 1963.

Decided July 9, 1963.

Syllabus by the Court

1. The power granted to the legislature by the Constitution to prescribe or fix salaries of circuit judges cannot be delegated, but local authorities or governmental subdivisions such as county courts may be authorized to supplement such salaries.

2. Matters not contained in the record of the case cannot be considered by this Court in the disposition of the case unless it is such matter as comes within the classification of judicial notice.

3. A reasonable classification by population with regard to compensation to be paid to circuit judges is not violative of the constitutional provision requiring such matters to be provided for by general laws.

4. A classification which excludes without any reasonable basis certain public officers who would otherwise be subject to a general law on the same matter is arbitrary and violative of the constitutional provisions forbidding special laws where a general law is required or would be proper.

5. A statute passed by the legislature can be subdivided so one part is general and one part is special, and so that the part that is construed to be a general law may be valid and the part which is special invalid.

6. 'A legislative act, containing an illegal exception, is not vitiated by the exception, on the ground of want of generality, if, upon the elimination thereof, what remains is in such condition that, had it been so enacted originally, it would have been a complete and general law.' Syllabus 6, State ex rel. Dillon v. Braxton County Court, 60 W.Va. 339, 55 S.E. 382.

H. L. Ducker, Huntington, D. Grove Moler, Mullens, Robert Bailey, Pineville, for relators.

C. Donald Robertson, Atty. Gen., J. Patrick Bower, Asst. Atty. Gen., Charleston, for respondent.

BERRY, President.

These two mandamus proceedings, instituted under the original jurisdiction of this Court, were consolidated for disposition because the issue in both cases is identical. The object of these proceedings is to compel the State Tax Commissioner, G. Thomas Battle, hereinafter referred to as the Commissioner, to approve an item in the Levy Estimate, or budget, of the County Court of Cabell County in the sum of $4,000 as additional compensation for the Judge of the Sixth Judicial Circuit, and an item in the Levy Estimate, or budget, of the County Court of Wyoming County in the amount of $3,000 as additional compensation for the Judge of the Twenty-seventh Judicial Circuit. The County Court of Cabell County and the County Court of Wyoming County will be hereinafter referred to as petitioners.

The State Tax Commissioner refused to approve such items in the Levy Estimates because of two provisions contained in Senate Bill No. 110 which was passed by the 1963 Legislature which amended Code 6-7-4. This Act which was passed by both Houses of the Legislature on the last day of the 1963 Session, and under which the controversy in these two proceedings arose, reads as follows:

'The salaries of the judges of the circuit courts shall be paid out of the state treasury and shall, unless otherwise provided by law, be in the following annual amounts:

'(1) In circuits having more than one hundred thousand population, fourteen thousand dollars;

'(2) In circuits having less than one hundred thousand population, twelve thousand five hundred dollars.

'Any county court or board of commissioners of Ohio county may pay the judge of the circuit court additional compensation, but the salary and additional compensation or combined contribution of the several county courts and board of commissioners shall not exceed twenty thousand dollars.

'The population shall be according to the United States census, or the estimate of the United States bureau of census, as certified to the state auditor by the United States director of the census last proceding the beginning of the calendar year in which salary is payable.

'The county court of Wyoming county may pay the judge of the twenty-seventh judicial circuit additional compensation, but such additional compensation shall not exceed one thousand five hundred dollars annually.

'The county court of Cabell county may pay the judge of the sixth judicial circuit additional compensation, but such additional compensation, but exceed two thousand dollars annually.'

It will be noted that the salaries of the various judges of the circuit courts in the state, by this Act, are placed in two broad or general classifications, those circuits in which the population is more than one hundred thousand are to be paid a basic salary by the state in the amount of $14,000; those circuits with a population of less than one hundred thousand are to be paid a basic salary of $12,500 by the state. The Act further provides that additional compensation may be paid to the various judges of the circuit courts of this state by the county courts or board of commissioners of the counties located in the various circuits. This basis for the payment of salaries and additional compensation is applicable to all circuit judges in the State of West Virginia, with the exception of the Judge of the Circuit Court of Wyoming County which is the Twenty-seventh Circuit and the Judge of the Circuit Court of Cabell County which is the Sixth Judicial Circuit. The exception of these two Juidicial Circuits from the rest of the circuits of the state is by virtue of the last two paragraphs of the Legislative Act wherein additional compensation to be paid to the Judge of the Twenty-seventh Judicial Circuit is limited to $1500 annually, and additional compensation to be paid to the Judge of the Sixth Judicial Circuit is limited to $2000. These two Circuits are the only ones excepted by the general provisions of the Legislative Act quoted above.

It is the contention of the petitioners that the last two paragraphs of the Legislative Act in question, wherein the Sixth and Twenty-seventh Judicial Circuits are singled out from the others in West Virginia and excepted from the other provisions of the Act are special laws, in violation of Article VI, Section 39 of the Constitution of West Virginia, and that the Commissioner should therefore be required to approve the 1963-1964 Levy Estimates of the petitioners in connection therewith. Article VI, Section 39 of the Constitution of West Virginia lists eighteen specific matters on which the Legislature cannot enact local or special laws and further provides that the Legislature shall not pass a special Act where a general law would be proper and applicable to such matter.

The Commissioner filed an answer and a demurrer to the petition after a rule to show cause was granted by this Court. Both the answer and demurrer contend that Senate Bill No. 110, the Legislative Act in question, is either a special law, which would be proper under Article VI, Section 39 of the Constitution of West Virginia, or that it is a general law, which is unconstitutional insofar as it allows any additional compensation to be paid by the counties. The reasons relied upon by the Commissioner for the unconstitutionality of the Act are that it infringes upon the separation of the powers contained in Article V, Section 1 of the Constitution of West Virginia by providing that county courts can set salaries of state officers, that it is in violation of Article IV, Section 8 of the Constitution of West Virginia which provides that the Legislature shall prescribe, by general laws, compensation of all public officers, and also that the Act results in inequities and nonuniformity of payment to circuit judges in that the additional compensation paid by the counties is not in proportion to the amount of work or duties performed by the judges in the various judicial circuits, and does not provide for reasonable classification.

This is a question of first impression in this state, although the Legislature has provided off and on over a period of more than sixty years for additional compensation to be paid to the circuit judges in this state by the county courts or board of commissioners. The Constitution of 1872 provided that Ohio County could pay an additional sum to the judges of the circuit court thereof. Until the Judicial Amendment of 1902 the salaries of judges of the circuit courts were fixed by the Constitution, but after this Judicial Amendment the Constitution provided that:

'The judges of the Supreme Court of Appeals and of the circuit courts shall receive such salaries as shall be fixed by law, for those now in or those hereafter to come into office.' Article VIII, Section 2, Constitution of West Virginia, as amended in 1902.

From 1909 to 1919 acts were passed by the Legislature providing that the county courts of the various counties where the population was more than a certain number of people could pay an additional amount to the circuit judges of such counties not to exceed a certain limit set by the various acts, but in 1919 the Legislature increased the salaries of all the circuit judges to be paid by the state, and in the same act provided that after July 1, 1919 no circuit judge could be paid any additional compensation by any county, and all acts inconsistent therewith were repealed. This remained the law for...