State ex rel. Damron v. Ferrell

• Decision Date: 27 July 1965
• Docket Number: No. 12486,12486
• Citation: 149 W.Va. 773,143 S.E.2d 469
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Oval DAMRON, Pros. Atty., Logan County, v. J. W. (Jack) FERRELL, Jr., Sheriff and Treas., Logan County.

Page 469

143 S.E.2d 469

149 W.Va. 773

STATE ex rel. Oval DAMRON, Pros. Atty., Logan County, v. J. W. (Jack) FERRELL, Jr., Sheriff and Treas., Logan County.

No. 12486.

Supreme Court of Appeals of West Virginia.

Submitted July 13, 1965.

Decided July 27, 1965.

Syllabus by the Court

1. A sheriff, as ex officio treasurer of a county, acts in an administrative capacity and has no discretion in making payment of claims against the county upon a lawful order of the county court.

2. Mandamus will not lie to compel the performance of an illegal or unlawful act.

3. A person employed by the prosecuting attorney under the provisions of Code, 7-4-2, as amended, is not entitled to be paid out of the county treasury for services rendered or expenses incurred in advance of proper approval of such employment and an order of a county court directing payment for such services is, to the extent that such order includes payment for services rendered previous to approval, unlawful.

Estep, Smith & Eiland, Thomas S. Smith, Jr., Logan, for relator.

Phillips & Wilson, Robert D. Phillips, Amos C. Wilson, Logan, for respondent.

BROWNING, President:

Petitioner, Prosecuting Attorney of Logan County, filed his original application in this Court praying for a writ of mandamus commanding the respondent, Sheriff and Treasurer of Logan County, to affix his signature or endorsement to a certain pay order or warrant. The petition, in substance, alleges the identity of the parties and the necessity of respondent's signature to secure payment of orders issued by the county court. The petition then alleges that: it became necessary for petitioner to employ an investigator and, on March 25, 1965, he employed one James B. McIntyre for that purpose; the county court, on April 5, 1965, authorized an expenditure of funds for such investigation; Mr. McIntyre conducted such investigation and submitted a statement, with supporting documents, in the amount of $1,379.91, for services rendered and expenses from March 26, 1965, to June 8, 1965; this statement was approved by petitioner and duly approved by the county court which issued its order thereon and transmitted the same to the respondent for his endorsement; and, respondent refuses to endorse or sign such order. Attached to the petition as exhibits are: the order of the county court of April 5, 1965, authorizing an expenditure, not to exceed $5,000, by the prosecuting attorney to conduct an investigation; the itemized statement and supporting papers of Mr. McIntyre, and petitioner's approval of same; and, a duplicate of the order of the county court payable to Mr. McIntyre in the sum of $1,379.91.

This Court issued a rule to show cause why the writ should not issue as prayed for, returnable July 13, 1965, at which time respondent appeared and answered, the pertinent allegations of which are: respondent has not refused to sign such order but merely questions the legality thereof; the order of the county court of April 5, 1965, is invalid in that it does not show on its face the matters to be investigated and, also, petitioner has an investigator on his staff and he hiring of an additional investigator is improper; the pay order of the county court is invalid for the reason that it contains payment for services rendered on March 26, 27 and 28, 1965, prior to the purported authorization thereof on April 5, 1965, and does not contain a proper endorsement by the president of the county court as required by Code, 12-3-18, as amended; and, admits that adequate funds are available to pay the amount ordered. Filed as exhibits with the answer are a letter of respondent directed to petitioner, dated July 6, 1965, advising him that respondent does not refuse to honor the pay order but merely questions its legality for the reason that the order covers services rendered on March 26, 27 and 28, 1965; petitioner has an investigator on his regular staff; and, respondent is therefore returning the order to the county court for further consideration; and a copy of an order of the county court entered August 7, 1964, authorizing the petitioner to employ one Charles T. Bailey on a permanent basis as an investigator of crime.

Petitioner demurred to the answer of respondent on the grounds that the answer is not responsive to the petition and constitutes no defense thereto; contains superfluous matter; and, the respondent may not lawfully refuse to endorse a pay order of the county court. The case was submitted on the pleadings and briefs of the parties, without oral argument.

The commissioners of a county court are constitutional officers and the powers granted to such court are very broad and contained generally in Article VIII, Section 24 of the Constitution of this State. Among other powers, it is therein stated 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, * * *.' Within the limits of that constitutional provision the legislature has seen fit to give county courts extensive authority and duties. See, Code, 7-1-1, 3 and 5, as amended. Likewise a sheriff is a constitutional officer and by statute, Code, 7-5-1, that official is also ex officio the county treasurer. Code, 7-5-4, provides that 'No money shall be paid by the sheriff out of the county treasury except upon an order signed by the president and clerk of the county court, and properly endorsed: * * *.' In Spurlock v. State of West Virginia, 4 Cir., 52 F. 382, it was held that a county of this state has no other mode of paying claims against it except by orders...