State Ex Rel. Marguerite Hall v. County Court Op Monongalia County.

• Citation: 82 W.Va. 564
• Parties: State ex rel. Marguerite Hall v. County Court opMonongalia County.
• Decision Date: 24 September 1918
• Court: Supreme Court of West Virginia

82 W.Va. 564

State ex rel. Marguerite Hall

v.County Court op

Monongalia County.

Supreme Court of Appeals of West Virginia.

Submitted September 17, 1918.

Decided September 24, 1918.

1. Mandamus When Writ Granted.

The existence and availability of an action at law is not the sole test for excluding relief by mandamus. To supersede the remedy by mandamus, when appropriate, the party must not only have a specific remedy at law, but one competent to afford relief upon the very subject matter and which is equally convenient, beneficial and effective. (p. 567).

2. Same Exercise of Ministerial Functions.

A writ of mandamus commanding the county court of a county to allow and pay from the county treasury the salary of a probation officer, fixed by the circuit court and limited by statute so as not to exceed $600 per year, payable monthly, and expenses, not to exceed $100 in any year, incurred in the administration of the office and certified by the circuit court, requires the exercise of ministerial, not judicial or discretionary functions. (p. 566).

3. Infants Probation Officer Appointment of Women-State or

County Officers.

Although sec. 6, ch. 46A, Code 1918, requires probation officers to take and subscribe and file with the clerk of the circuit court the same oath as "other county officers", and vests in them "all the power and authority of police or sheriffs to make arrests and perform any other duties ordinarily required by policemen and sheriffs which may be incident to their office or necessary or convenient to the performance of their duties", such probation officers are not state or county officers, and hence are not within the constitutional limitation (secs. 1 and 4, Art IV. Const.) that only those who are citizens entitled to vote may be elected or appointed to a state, county or municipal office; wherefore such limitation does not preclude the appointment of women as probation officers. (p. 569).

4. Same "Probation Officers."

A probation officer is an officer or assistant of the court to assist in the exercise of the jurisdiction which courts of chancery have exercised from time immemorial to protect the financial, social and moral welfare of infants within their jurisdiction. (p. 571).

5. Same Probation Officers Powers.

Sec. 6, ch. 46A, Code 191S, when read in conjunction with the other sections of the same act, confers upon probation officers the power and authority of policemen and sheriffs to make arrests when, and only when, such power and authority is incident or necessary or convenient to the performance of their duties as probation officers. (p. 571).

6. Constitutional Law-Appointment of Probation OfficersAu-

thority of Circuit Court.

Bestowal of authority upon circuit courts to appoint probation officers does not violate the constitutional inhibition against encroachment by any one of the three departments of the state government upon the powers of the others, (p. 572).

Error to Circuit Court, Monongalia County.

Petition by the State for writ of mandamus, on relation of Marguerite Spragg Hall, to the County Court of Monongalia County. Judgment for petitioner, and defendant brings error.

Affirmed.

Chas. A. Goodwin, Lazzelle & Stewart, and Glasscock & Glasscock, for plaintiff in error.

C. B. Dille, for defendant in error.

Lynch, Judge:

Error to a judgment of the circuit court of Monongalia County based upon the petition of Marguerite Spragg Hall and commanding the county court of that county to pay her out of the county treasury fifty dollars monthly from November 6, 1917, for services rendered by her as probation officer, acting under an appointment as such by the circuit court in August of that year and approved by the commissioners or members of the county court and superintendent of public schools of the county, as required by the act, and also the expenses incurred by her, and then unpaid, in per- forming the services, but in an amount not in excess of one hundred dollars for any one year, and to cause to be drawn and signed by its president and clerk proper orders therefor upon the sheriff as treasurer of the county, payable to her when so drawn and signed, as drafts upon the funds in the county treasury subject to their payment.

The questions presented upon the writ to the judgment arise upon the motion of the respondent to quash the alternative writ, overruled, and upon the demurrer of the relator to the answer of the respondent, sustained. These rulings and the award of the peremptory writ are said to be erroneous: (1) Because the acts commanded by the alternative and peremptory writs are not merely ministerial but are judicial and discretionary; (2) because there is a complete and adequate remedy by an action at law; (3) because the status of a probation officer is that of one who holds an office within the meaning of the term as it is used in the constitution and laws of this state; and (4) because of her sex the relator is ineligible to appointment and disqualified to hold any office authorized by the constitution or created by its authority.

The statute creating the office and authorizing the appointment of probation officers, ch. 46A, sec. 6, Barnes' Code 1918, empowers circuit courts of counties having a prescribed population, in this case over fifteen thousand and less than thirty thousand, to appoint "one probation officer at a salary not to exceed six hundred dollars per year", and the county to allow such officer "expenses of probation work in a sum not to exceed one hundred dollars per year", the salary being payable "in monthly installments from the county treasury" and expenses as incurred. It is further provided that the salaries of paid probation officers permitted by this act "shall be fixed by the judge, not to exceed the sums herein mentioned, and any bills for expenses, not exceeding the sums herein provided for, shall be certified to by the judge as being necessary in and about the performance of the duties of probation officer or officers."

Apparently there is no basis for the exercise of any judicial or discretionary power by the county court of a county whose population is within the limitation prescribed, Mon- ongalia County being of that class, as to the payment of the salary monthly, because, the annual salary being once fixed by the circuit court, the ascertainment of the monthly payment is a mere matter of mathematical calculation and requires neither judicial investigation nor the exercise of discretionary power. All that is necessary for the county court to do is to apply the well understood rules of computation and direct the president and clerk to draw, sign and deliver each month orders on the county treasurer payable to the claimant for one-twelfth of the annual salary, just as is done ordinarily in respect of the salaries of prosecuting attorneys and other county officers, and doubtless as that court did as regards the salary of the relator when paying her for the months of September and. October, 1917.

What, if any, expense account the relator claimed and the county court allowed and ordered paid for these two months, or was claimed by her for any subsequent month or months, the record furnishes no data to show. There is nothing to indicate a refusal to allow any expense account covering the first two or any subsequent months, and if their allowance called for the exercise of any discretionary power, the powTer was confined within the maximum limit prescribed by the act itself. To that extent she was entitled to reimbursement monthly until the limit was reached, if approved by the circuit court, and if an audit of the account verified the justness of the items. She could not claim reimbursement in an amount in excess of one hundred dollars, and the county court could not reduce the. maximum limit below that amount of their own accord. We fail to discover in this process any reasonable demand or requirement for the exercise of discretionary power.,

The existence and availability of an action predicated upon the claim of the relator, though unquestioned, is not the true test for excluding relief by mandamus. If, as averred in the petition or as may be implied from such averments, she was not ineligible as an appointee under the act, and possessed the qualifications prescribed by it, and performed the duties incident thereto upon an annual alary fixed by the circuit court and payable in monthly install- merits as expressly authorized and required, she undoubtedly could sue to enforce payment of the compensation she claims. But to preclude the right to resort to mandamus, such other remedy, when otherwise appropriate, must be adequate and equally well adapted to right the wrong complained of. If it be incomplete or less direct and effective, the court may in the exercise of a sound discretion either grant or refuse the writ. In Pipe Line Co. v. Riggs, 75 W. Va. 353, 356, there was, as it appears, a clear and express remedy given by statute to compel a sheriff to pay county orders lawfully drawn upon him, yet the common law coercive writ was upheld because more convenient, direct, beneficial and efficient. When these elements concur, mandamus is proper as a mode of redress, although there may be another legal remedy for the same wrong. See also Bunch v. Short, 78 W. Va 764, 775. In Nicholl v. Koster, 157 Cal, 416, 108 P. 302. the propriety of the remedy by mandamus to compel the auditor of the city and county of San Francisco to approve and allow a demand payable out of the county treasury for the monthly salary of an assistant probation officer appointed by the superior court...