State Ex Rel P. B. Buxton v. O'Brien, No. 5155.

CourtSupreme Court of West Virginia
Writing for the CourtMcGINNIS, J.
Citation97 W.Va. 343
PartiesState ex rel P. B. Buxton v. W. II. O'Brien and The County Court oF Mason County
Decision Date14 October 1924
Docket NumberNo. 5155.

97 W.Va. 343

State ex rel P. B. Buxton
v.
W. II.
O'Brien and The County Court oF Mason County

No. 5155.

Supreme Court of Appeals of West Virginia.

Submitted June 7, 1924.
Decided October 14, 1924.


[97 W.Va. 343]

1. Mandamus Never Employed to Prescribe Manner in Which Officers and Tribunals Shall Act or to Correct Their Errors.

Mandamus is a proper remedy to compel tribunals and officers exercising discretionary and judicial powers to act, wben they refuse so to do, in violation of their duty, but it is never employed to prescribe in what manner they shall act, or to correct errors they have made. (p. 350).

2. Clerks of Courts Concurrent Action of Judge Circuit Court and County Court, Acting as Court, Necessary to fix Amount to be Expended for Cleric Circuit Court for Deputies and Assistants.

Under section 40 of chapter 137 of the Code, the judge of the circuit court, and the county court, or the tribunal in lieu thereof, are required to concurrently fix the amount to be expended for the office cf the clerk of the circuit court for deputies and assistants, and in acting in this capacity the county court acts as a court and not as individual members thereof, and no amount can be fixed unless the said county court and the judge of the circuit court concur in fixing the same. (p. 350).

Original proceeding in mandamus by the State, on the relation of P. B. Buxton, Clerk of Circuit Court of Mason County, against Hon. W. II. O'Brien, Judge of Circuit Court of Mason County, and others.

Writ refused.

B. II. Blagg and F. G. Musgrave, for relator.

Robert L. Hogg, for respondents.

McGlNNIS, JUDGE:

An alternative writ was awarded by this court against the county court of Mason County, and W. H. O'Brien, judge of the circuit court of said county, upon the petition of P. B.

[97 W.Va. 344]

Buxton, clerk of the circuit court of said county. The writ was made returnable before this court on the 29th day of May, 1924, and was so served upon the respondents.

The writ alleges that the relator is clerk of the circuit court of Mason County; that his duties as such clerk are many and onerous, and that by reason of said many duties required of him by law, it is necessary that he have clerical assistance in the performance of the duties so required of him.

That pursuant to section 40 of chapter 137 of Barnes' Code, relator filed with the county court of said county, on or before the first day of December, 1923, as required by law a detailed statement of the probable amount necessary to be expended for deputies and clerical assistance, naming as his deputy one D. W. Brown, and requesting that he be paid $100.00 per month; that said amount is reasonable, that said statement was carefully made, and that the amount set forth therein is no more than is necessary to carry on the work of said office; that it became the duty of the county court, not later than fifteen days after the filing of said statement, to meet and consider the same concurrently with the judge of the circuit court of said county, and to determine and fix an aggregate sum to be expended for the period covered by same for each deputy and assistant. And further alleges that said county court disregarded its duty in this respect, in that it did not meet concurrently with the judge of the circuit court of said county and take up and consider said statement, and determine and fix an aggregate sum to be expended for deputies and assistants in said office, and has wholly failed to do so.

That with utter disregard for its duties in the premises, and without the concurrent action of the judge of the circuit court of said county, and without considering or attempting to ascertain the amount of work necessary to be done in said office, the county court met on the 15th day of December, 1923, and independently of one of its own members, and without the concurrent action of the judge of the circuit court of said county, pretended to fix the amount to be so paid at $175.00 per year. That said sum is grossly inadequate; that the action of the county court in pretending

[97 W.Va. 345]

to fix said amount was arbitrary and capricious, and evidences a purpose to evade the due and faithful performance of its duty in this regard, and is a plain abuse of its discretionary power.

The writ further alleges, that as required by law, the relator proceeded to employ, in the month of December, 1923, such deputies as was necessary for his office, and to fix their compensation, and that so acting he employed D. W. Brown, a competent person as his deputy and fixed his compensation at $100.00 per month for said year, and so reported to the said county court; that since the appointment of said Brown he has at all times been faithfully performing his duties as such deputy clerk, and that said county court has failed and refused to pay said compensation to said Brown; that unless the county court is recpuired to pay for the services of a deputy, relator will be unable to secure assistance necessary for the proper conduct of said office; that the work required to be done in said office is more than can be done by one man, and that relators salary as clerk is only $1,800.00 per annum, and that he cannot afford to pay for the services of a deputy from his own salary; that unless the services of a deputy are paid for by the county court that relator will have to do without the services of a deputy, and so will be greatly handicapped in the performance of...

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45 practice notes
  • Board of Trustees of Policemen's Pension or Relief Fund of City of Huntington v. City of Huntington, Nos. 10850
    • United States
    • Supreme Court of West Virginia
    • January 28, 1957
    ...Dillon v. Neal, 104 W.Va. 259, 139 S.E. 757; Ellis v. State Road Commission, 100 W.Va. 531, 131 S.E. 7; State ex rel. Buxton v. O'Brien, 97 W.Va. 343, 125 S.E. 154; Swearingen v. Bond, 96 W.Va. 193, 122 S.E. 539, 36 A.L.R. 1500; State ex rel. Noyes v. Lane, 89 W.Va. 744, 110 S.E. 180; Count......
  • Carter v. City Of Bluefield, No. 10142.
    • United States
    • Supreme Court of West Virginia
    • June 14, 1949
    ...of Commissioners of the City of Huntington, 103 W.Va. 723, 138 S.E. 397; State ex rel. Buxton v. O'Brien and County Court of Mason County, 97 W.Va. 343, 125 S.E. 154; Swearingen v. Bond, 96 W.Va. 193, 122 S.E. 539; State ex rel. Noyes v. Lane, 89 W. Va. 744, 110 S.E. 180; Ryan v. County Cou......
  • State ex rel. McKenzie v. Smith, No. 29645.
    • United States
    • Supreme Court of West Virginia
    • June 28, 2002
    ...Meador v. County Court of McDowell County, 141 W.Va. 96, 112, 87 S.E.2d 725, 736 (1955); Syl. pt. 1, State ex rel. Buxton v. O'Brien, 97 W.Va. 343, 125 569 S.E.2d 831 S.E. 154 (1924). The majority's holding in this case merely corrected a perceived error committed by the Commissioner in exe......
  • State ex rel. Justice v. King, No. 19-1132
    • United States
    • Supreme Court of West Virginia
    • November 24, 2020
    ...to prescribe in what manner they shall act, or to correct errors they have made." Syllabus Point 1, State ex rel. Buxton v. O'Brien, 97 W. Va. 343, 125 S.E. 154 (1924).Syl. pt. 8, Nobles , 202 W. Va. 523, 505 S.E.2d 442. As such, while mandamus may lie against a public official to cause tha......
  • Request a trial to view additional results
44 cases
  • Board of Trustees of Policemen's Pension or Relief Fund of City of Huntington v. City of Huntington, Nos. 10850
    • United States
    • Supreme Court of West Virginia
    • January 28, 1957
    ...Dillon v. Neal, 104 W.Va. 259, 139 S.E. 757; Ellis v. State Road Commission, 100 W.Va. 531, 131 S.E. 7; State ex rel. Buxton v. O'Brien, 97 W.Va. 343, 125 S.E. 154; Swearingen v. Bond, 96 W.Va. 193, 122 S.E. 539, 36 A.L.R. 1500; State ex rel. Noyes v. Lane, 89 W.Va. 744, 110 S.E. 180; Count......
  • Carter v. City Of Bluefield, No. 10142.
    • United States
    • Supreme Court of West Virginia
    • June 14, 1949
    ...of Commissioners of the City of Huntington, 103 W.Va. 723, 138 S.E. 397; State ex rel. Buxton v. O'Brien and County Court of Mason County, 97 W.Va. 343, 125 S.E. 154; Swearingen v. Bond, 96 W.Va. 193, 122 S.E. 539; State ex rel. Noyes v. Lane, 89 W. Va. 744, 110 S.E. 180; Ryan v. County Cou......
  • State ex rel. McKenzie v. Smith, No. 29645.
    • United States
    • Supreme Court of West Virginia
    • June 28, 2002
    ...Meador v. County Court of McDowell County, 141 W.Va. 96, 112, 87 S.E.2d 725, 736 (1955); Syl. pt. 1, State ex rel. Buxton v. O'Brien, 97 W.Va. 343, 125 569 S.E.2d 831 S.E. 154 (1924). The majority's holding in this case merely corrected a perceived error committed by the Commissioner in exe......
  • State ex rel. Justice v. King, No. 19-1132
    • United States
    • Supreme Court of West Virginia
    • November 24, 2020
    ...to prescribe in what manner they shall act, or to correct errors they have made." Syllabus Point 1, State ex rel. Buxton v. O'Brien, 97 W. Va. 343, 125 S.E. 154 (1924).Syl. pt. 8, Nobles , 202 W. Va. 523, 505 S.E.2d 442. As such, while mandamus may lie against a public official to cause tha......
  • Request a trial to view additional results

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