State Ex Rel. J. M. Henson v. County Court Of Putnam County.

Decision Date13 March 1923
Docket NumberNo. 4851.,4851.
CourtWest Virginia Supreme Court
PartiesState ex rel. J. M. Henson v. County Court of Putnam County.
1. Counties 'Filing of Statement by County Officers as to Necessary Amount Expended for Deputies, Assistants, etc., in Proper Time Held Substantial Compliance With Statute.

Under section 40, chapter 137, Code, county clerks and other officers therein specified, are required on or before December first of each year to file with the county court a detailed statement of the probable amount necessary to be expended for deputies, assistants and other employees of their respective offices, for the following year but a filing of such statement in proper time with the county clerk is a substantial compliance with the statute. (p. 322).

2. Same County Court Required to Meet Not Later Than Fif-teen Days After Filing of Statement of Public Expense by County Officers, to Determine Aggregate Sum and Enter Finding of Record.

The county court is required to meet not later than fifteen days after the filing of the statement, to take up and consider it, to determine the aggregate sum to. be so expended and to enter upon its record a finding of its action. (p. 322).

3. Same County Court Cannot Reduce Lump Sum Statement Filed by Clerk of Fund Necessary for Deputies and Employees Where Determined More Than Fifteen Days From Filing Thereof.

A statement of a county clerk, not detailed, but merely showing the aggregate sum needed for such purposes is not such a statement as is contemplated by the statute. But where he has in proper time filed such lump sum statement and the county court thereafter meets, takes up and considers it, determines the aggregate sum to be expended by him, and enters upon its record a finding of its action, it can not after the adjournment of the term at which such action is taken and more than fifteen days after the statement is filed reconsider its findings and reduce the amount so determined.

4. Same County Court After Clerk Filing Statement Showing Whom Employed as Deputies and Assistants. May Order Drafts to be Issued for Payment of Salaries.

Under the second paragraph of section 40, chapter 137, Code, the county clerk is required to file a second statement showing whom he has employed as deputies and assistants, and the time and terms for which they are employed. Thereupon, the court, though it is not required to do so, may enter an order authorizing the president and clerk of the county court thereafter to issue drafts to the officer and his deputies and assistants for their monthly salaries as they accrue, provided such officer shall have complied with the requirement respecting his accounting for the fees collected by him. (p. 323).

5. Mandamus Will Lie to Compel County Court to Issue Drafts for Payment of Deputies and Assistants of Cleric After Compliance With Statute.

Where a county clerk has filed his statement showing the amount necessary to pay the salaries of his deputies and assistants for the following year and the county court has entered its findings thereon of record and fixed a stipulated sum to he expended for that purpose, and the county clerk has contracted with his deputies and assistants and has filed his statement showing the names of his deputies and assistants, the time and terms of their employment, and salaries have accrued to such deputies for their services which the county court refuses to pay, mandamus will lie to compel the county court to issue drafts for the payment thereof. (p. 323).

Petition by the State, on the relation of J. M. Henson, against the County Court of Putnam County for an alternative writ of mandamus to compel defendant to rescind its order reducing the appropriation formerly allowed by it for deputies and other assistants of the clerk's office, etc.

Writ awarded.

C. E. Copen, for relator.

John T. Simms, and John D. Thomas, for respondent.

Meredith, Judge.

J. M. Henson, clerk of the county court of Putnam County, applied to this court by petition, duly verified, for an alternative writ of mandamus to compel the county court of that county to rescind its order of December 18, 1922, reducing the appropriation formerly allowed by it for deputies and other assistants of the clerk's office for the year 1923, and to command the president of said court to sign in his official capacity salary orders for his deputy clerks for the month of January, 1923, and subsequent months during the year, in accordance with the original appropriation. The alternative writ having been issued, defendants appeared and filed their answer and return thereto. Petitioner demurs to said return, moves to strike out certain paragraphs, and answers by the way of special reply.

The writ shows: that petitioner is the duly elected and qual- ified clerk of the county court of Putnam County that prior to December 1, 1922, he made up and filed, as prescribed by law (Barnes' Code, 1923, eh. 137, §40), an estimate and statement of the amount necessary for the hire of deputies and assistants in his office for the year 1923, which amount he fixed at $4500; that on December 2, 1922, within the 15 day period stipulated by the statute the county court met in special session and fixed the appropriation for the purposes named for the year 1923 at $4000, and entered an order of record appropriating and setting aside that amount, the order entered being as follows:

"At a special session of the County Court of Putnam County, held in and for said County, pursuant to law, at the Court House thereof, on Saturday, the 2nd day, of December, 1922.

The court this day took up the detailed statement heretofore filed by J. M. Henson, Clerk of the County Court of Putnam County, asking that the amount of $4500 be set aside as the amount necessary to be expended for deputies and other assistants in the office of said clerk for the year 1923. And it appearing to the court that said amount is probably in excess of the amount necessary to be expended for such purpose, it is ordered that the amount of $4000 be set aside as the amount necessary to be expended for such deputies and other assistants for said office for the year 1923;"

that after so making the appropriation and after the expiration of the fifteen day period, at a regular session of the county court, held on December 18, 1922, said court by an order of record, attempted to rescind its former action of December 2, 1922, and reduce the amount of the appropriation from $4000 to $2000. The result of this attempted rescission, as alleged, was that when petitioner, on January 31, 1923, filed his statement in his office showing the names of his clerks and deputies and the amounts of the salaries due them for that month, and presented orders, directing payment thereof by the sheriff, to the president of the county court, L. W. Cain, for his signature, the latter officer refused to sign them. This statement and the orders called for the payment of $125 to W. Z. Cash and a like amount to Lee Barrows, salaries as deputies to the county clerk for January. These amounts, it will be seen, were in accordance with the original $4000 appropriation, which the president of the court refused and still refuses to recognize as binding upon that body. Petitioner avers the reasonableness of a $4000 appropriation, stating that the business of his office necessitated the employment at all times of two and at times three deputy clerks, and the petition prays and the alternative writ commands that the county court and L. W. Cain, is president, rescind the order of December 18, 1922, reducing their prior appropriation of $4000 to $2200, and that L. W. Cain as president of said court sign said salary orders for $125 each to Lee Barrows and W. Z. Cash for the month of January, 1923, "and to sign subsequent orders to be issued monthly for their services as such deputy county clerks when such services shall be performed and the county clerk shall have filed verified monthly statements as required by law to pay for deputy hire for 1923, not to exceed the sum of $4000 as fixed and allowed in said order of December 2, 1922, or show cause if any can be shown, why said December 18, 1922, order should not be rescinded and why said salary order of such deputies should not be signed by L. W. Cain, President of said county court."

Certified copies of the orders of the county court of December 2, 1922, and December 18, 1922, are filed as exhibits with the petition.

Respondents, in their return, deny that petitioner filed his estimate within fifteen days, as prescribed by law; they, however, aver that petitioner filed on November 13, 1922, a socalled estimate or statement with the then members of the county court, respondents' predecessors in office; that the county court as then constituted declined to act upon the statement and that no action was taken until December 2, 1922, when petitioner filed with respondents, sitting in special session, a written request for an aggregate allowance for the year 1923; that respondent L. W. Cain objected to the statement filed upon the ground of its insufficiency and requested the filing of a more detailed statement which petitioner declined to make; that respondent L. W. Cain, thereafter, refused to consider the request; but that owing to the turmoil and confusion which prevailed about the court during the period, and because of the domineering attitude of the petitioner, and especially because of the fact that they were under the impression that the appropriation requested included the statutory salary of the clerk, amounting to $1800, two of the respondents, W. T. Oxley and F. H. Honaker, members of the county court, finally acquiesced in petitioner's demand to the extent of allowing and authorizing an appropriation for the year 1923 of $4000. It is then alleged that shortly after the adjournment of the special term, respondents, Oxley and Honaker, discovered their mistake and...

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