State Ex Rel P. B. Buxton v. O'Brien

• Decision Date: 14 October 1924
• Docket Number: No. 5155.,5155.
• Citation: 97 W.Va. 343
• Court: West Virginia Supreme Court
• Parties: State ex rel P. B. Buxton v. W. II. O'Brien and The County Court oF Mason County

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.

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. 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 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 his duties, and the interests of the state and county, as well as those having business with said court will seriously suffer thereby.

On the prayer of relator an alternative writ of mandamus was issued requiring the Honorable W. IT. O'Brien, judge of the circuit court of Mason County, West Virginia, and the county court of said county to forthwith meet and concurrently consider the statement of the amount necessary to be expended for deputies and assistants filed by the relator on the first day of December, 1923, and to make an adequate and proper allowance for the compensation to be expended for such deputies and assistants for said office, regard being had for the amount of labor necessary to be expended in the performance of the required duties, or that they appear before the judges of this court on the 29th day of May, 1924, at 10 o'clock A. M.. and show cause, if any they can, why they refuse so to do.

The county court made and filed its return to said alternative writ, denying that it was necessary for the clerk of the circuit court of Mason County to employ an assistant, and alleging that the detailed statement filed by the clerk of said circuit court of the probable amount necessary to be expended for clerical assistance for the year 1924, as set forth in said writ, was filed by him as set forth in said writ, but that said statement was not verified as required by law, and for that reason was not in proper form to be acted upon by this court; that estimate was not carefully made in that it is not necessary to have employed an assistant; that within fifteen days after the filing of said statement that it did take up and consider the same, and did determine and fix an aggregate amount to be expended by relator for deputies and assistants; and that said sum so fixed was $175.00 per annum; that said sum was reasonable and proper, regard being had for the amount of labor to be expended by such deputy or assistant.

That it had at all times co-operated with the judge of the circuit court in fixing the salaries of the assistants and deputies required by the clerk of the circuit court; that the judge of said court had knowledge of said meeting to be held...