State Ex Rel. County Court Of Tyler County v. Shipman, (No. 7369)
| Decision Date | 20 September 1932 |
| Docket Number | (No. 7369) |
| Citation | 112 W.Va. 529 |
| Parties | State ex rel. County Court of Tyler County v. HonorableJames F. Shipman, Judge, et al. |
| Court | West Virginia Supreme Court |
Prohibition lies to restrain the prosecution of an action against a county court upon an illegal and unauthorized claim.
It is unlawful for county court to expend money or incur indebtedness not expressly authorized by law; and the authority to do so cannot be inferred by statutory construction.
Original proceeding in the Supreme Court of Appeals for writ of prohibition by the State, on the relation of the County Court of Tyler County, against Honorable James F. Shipman, Judge of the Circuit Court of Marshall County, and others.
Writ awarded.
0. J. Hill and I. M. Underwood, Chas. M. Kimball and Wm. J. Brennan, for petitioner. Willis & Ball, for respondents.
This is an application for a peremptory writ of prohibition by the County Court of Tyler County against the Honorable James F. Shipman, Judge of the Circuit Court of Marshall County, H. E. Humes, Cleric of said court, and Sam Hissam, to restrain respondents in the further prosecution of an action instituted by Hissam against relator before a justice of Tyler County for the recovery of $16.75, expenses incurred by him as probation officer of Tyler County.
From a judgment rendered by the justice against him, Hissam appealed to the Circuit Court of Tyler County. Upon motion of the county court the ease was removed from the Circuit Court of Tyler to the Circuit Court of Marshall County. Relator now petitions this court for a peremptory writ of prohibition restraining' the further prosecution of the action on the ground that the claim asserted against it, based on chapter 49, article 2, section 5 of the Code, is without any legal basis. The statute authorizes (1) the appointment of "one or two" probation officers in counties having a population of 48, 000 or over, who shall receive salary and expenses not in excess of $100.00 each, annually, (2) the appointment of one probation officer in counties of a population of 18, 000 or over (and less than 48, 000), who shall receive a salary and expenses not in excess of $100.00 annually, and (3) the appointment of one probation officer for counties with a population of less than 18, 000 who shall receive a salary not in excess of $100.00 per year. Without providing for expenses for probation officers in counties of less than 18, 000 inhabitants, the act declares that probation officers shall receive no compensation from the county treasury except as therein provided. Tyler County has a population of less than 18, 000.
Respondent Hissam asserts that the legislature intended that probation officers in such counties should be allowed expenses, and that a provision to that effect should be read into the statute. Relator answers...
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