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

• Decision Date: 23 November 1965
• Docket Number: No. 12506,12506
• Citation: 150 W.Va. 293,145 S.E.2d 34
• Court: West Virginia Supreme Court
• Parties: ., et al. v. Keith L. ARTHUR, as Clerk of the County Court of Cabell County, West Virginia. Supreme Court of Appeals of West Virginia

Page 34

145 S.E.2d 34

150 W.Va. 293

STATE ex rel. the COUNTY COURT OF CABELL COUNTY, etc., et al. v. Keith L. ARTHUR, as Clerk of the County Court of Cabell County, West Virginia.

No. 12506.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 19, 1965.

Decided Nov. 23, 1965.

Syllabus by the Court.

1. 'The county court is a corporation created by statute, and possessed only of such powers as are expressly conferred by the Constitution and legislature, together with such as are reasonably and necessarily implied in the full and proper exercise of the powers so expressly given. It can do only such things as are authorized by law, and in the mode prescribed.' Point 3, syllabus, Barbor v. County Court of Mercer County, 85 W.Va. 359 .

2. A county court is without power to appoint a secretary and assistant to the county court in the absence of any express authority providing therefor or in the absence of a statute from which such authority can reasonably be implied.

3. 'Mandamus will not lie to compel the performance of an illegal or unlawful act.' Point 2, syllabus, State ex rel. Damron v. Ferrell, W.Va. .

4. Mandamus will not lie unless the party seeking the writ can show a clear legal right to the relief sought and a corresponding duty on the respondent to perform the act demanded.

Carl A. McComas, Beckett & Burford, Robert H. Burford, Huntington, for relators.

Robert K. Means, Huntington, for respondent.

CAPLAN, Judge:

In this original proceeding in mandamus the relators, the County Court of Cabell County and Mildred Wheeler, seek a writ to compel the respondent, Keith L. Arthur, Clerk of the County Court of Cabell County, to issue a certain county order authorizing the expenditure of county funds and to affix his signature thereto in his official capacity. The respondent filed an answer to the petition, from which it appears that there is no material dispute in relation to the facts which give rise to this controversy. On September 20, 1965 this Court granted a rule returnable October 19, 1965, on which date the case was submitted for decision.

From the pleadings and exhibits filed in this proceeding it appears that the relator, county court, in accordance with the provisions of Code, 1931, 11-8-10, as amended, formulated and submitted to the state tax commissioner the 1965- 1966 Levy Estimate for Cabell County. This document, which is actually the budget upon which the county operates, contains an item in the sum of $3,600.00 which is designated as the annual salary for the county court secretary. The Levy Estimate was approved by the state tax commissioner and that document, together with such approval, is included as an exhibit in this proceeding.

The County Court of Cabell County, at a regular session thereof on August 2, 1965, by a vote of two to one, appointed Mildred Wheeler to the position of secretary and assistant to said court. This is a newly created position, the tenure of which commenced on the day of the appointment and was to continue thereafter at the will and pleasure of the county court. The appointment provided for a monthly salary of $300.00 for this recently created position. Immediately after the appointment the oath of office was administered to Mildred Wheeler and she has since acted in that capacity.

Thereafter, on the same day, August 2, 1965, the respondent by letter advised the county court that he was unable to find any express statutory law or case law authorizing this action by the court. His letter then continued as follows: '* * * I must therefore state that I shall not cause my signature to be affixed on any check or draft which may be issued to pay the salary of the secretary and assistant to the Cabell County Court, until I am assured of the legality of such appointment or ordered to do so by a Court of competent jurisdiction.'

The relators allege that county employees are paid by the issuance of a county order with the facsimile signatures of the president and clerk of the county court and that without such signatures no payment can be made. They further allege that Mildred Wheeler has served in the capacity of secretary and assistant to the county court from August 2, 1965 to August 15, 1965, and that after proper deductions for federal and state income withholding taxes, social security taxes and state retirement pension contribution, she is entitled to a net salary of $166.66 for such period of employment; that all other county employees have been paid for this period; that the county court desires to pay this sum to Mildred Wheeler; and that the county court is prevented from paying such salary because of the conduct of the respondent who has arbitrarily and capriciously refused to cause his facsimile signature to be affixed to a county order. The relators therefore seek a writ to compel the respondent to issue a county order in the sum of $116.66 and to cause his signature to be affixed thereto so as to enable the county to pay relator, Mildred Wheeler, her salary as secretary and assistant to the county court for the period above designated.

The respondent denies that he arbitrarily and capriciously refused to issue the requested county order, but asserts that he did so honestly and in good faith, believing that there being no statutory authority, express or implied, authorizing such action, his issuance of such county order 'would be illegal, invalid and of no effect, causing the respondent and the sureties on his bond to be liable for any payment thereof.'

The relator county court readily agrees that there is no express statutory authority to make the appointment here in question but asserts that, by reason of its many duties, such appointment may be made under its implied powers.

The sole question in this controversy is whether the County Court of Cabell County has the lawful authority to appoint a secretary and assistant to that body. County courts are created as governmental entities by Article VIII, § 22 of the Constitution of West Virginia. The basic powers thereof are provided for under the provisions of § 24 of said article. In addition to setting out many specific powers, § 24 provides: 'Such courts may exercise such other powers, and perform such other duties, not of a judicial nature, as may be prescribed by law.' It therefore becomes clear that in determining the powers of the county court we must look to the constitution, which created that body, and to the laws which were enacted by the legislature pursuant to the constitutional provisions.

The status of a county court, in relation to its powers, is well expressed in Point 3 of the syllabus in Barbor v. County Court of Mercer County, 85 W.Va. 359, 101 S.E. 721, as follows: 'The county court is a corporation created by statute, and possessed only of such powers as are expressly conferred by the Constitution and Legislature, together with such as are reasonably and necessarily implied in the full and proper exercise of the powers so expressly given. It can do only such things as are authorized by law, and in the mode prescribed.' See also Mohr v. County Court of Cabell County, 145 W.Va. 377, 115 S.E.2d 806; Daugherty v. Ellis, 142 W.Va. 340, 97 S.E.2d 33; Goshorn's Ex'rs v. County Court of Kanawha County, 42 W.Va. 735, 26 S.E. 452.

As heretofore...