State ex rel. Richardson v. County Court of Kanawha County

• Decision Date: 24 November 1953
• Docket Number: No. 10618,10618
• Citation: 138 W.Va. 885,78 S.E.2d 569
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. RICHARDSON, Judge, et al. v. COUNTY COURT OF KANAWHA COUNTY et al.

Page 569

78 S.E.2d 569

138 W.Va. 885

STATE ex rel. RICHARDSON, Judge, et al. v. COUNTY COURT OF KANAWHA COUNTY et al.

No. 10618.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 23, 1953.

Decided Nov. 24, 1953.

Syllabus by the Court.

Chapter 188 of the 1953 Acts of the Legislature, Regular Session, amending Chapter 148 of the 1949 Acts of the Legislature, Regular Session, amending Section 8 of Chapter 172 of the 1947 Acts of the Legislature, Regular Session, in so far only as it attempts to authorize the Domestic Relations Court of Kanawha County to fix the amounts of salaries of probation officers medical, clerical and secretarial assistants, is unconstitutional and void, as being violative of Article V of the State Constitution, in that it attempts to vest in the judicial department of the government a nonjudicial function.

Dale G. Casto, George C. Schmidt, Charleston, for relators.

D. Boone Dawson, Charleston, for respondents.

GIVEN, Judge.

In this original proceeding in mandamus, petitioners, Herbert W. Richardson, Judge of the Domestic Relations Court of Kanawha County, and Thomas D. Robertson, Probation Officer of the Domestic Relations Court of Kanawha County, seek a peremptory writ requiring defendants, The County Court of Kanawha County, Hubert W. Kelly, President, and Bruce E. Bartlett and S. Grover Smith, Sr., Commissioners of the County Court of Kanawha County, to 'correct the budget for the Domestic Relations Court of Kanawha County, for the fiscal year 1953-54, and provide therein the sum of $23,980.00 for salaries for probation officers, clerical and secretarial help and the sum of $2,800.00 to provide for payment of costs of necessary expenses and mileage accounts, in accordance with the order of the Domestic Relations Court of Kanawha County, made and entered on the 26th day of June, 1953, * * *'.

The Domestic Relations Court of Kanawha County was created by Chapter 172, Acts of the Legislature, Regular Session, 1947, and was vested with jurisdiction of proceedings relating to divorce, alimony, adoptions, care and disposition of neglected and delinquent children, juvenile offenses, and other matters of similar nature. Section 8 of the Act provided that the court apooint 'probation officers, and such medical, clerical and secretarial assistants as shall enable the court to discharge all of the duties required of it * * *'. Section 9 of the Act provided that the County Court of Kanawha County 'shall, through annual levy and appropriations, make provision for the payment for * * * such clerical, secretarial and other official help and expenses as may be required by the court.' Section 8 was amended and re-enacted by Chapter 148 of the Acts of the 1949 Legislature, Regular Session, and again amended and re-enacted by Chapter 188 of the Acts of the 1953 Legislature, Regular Session. The part of Section 8, as amended in 1953, in so far as material here, reads:

'* * * The court is authorized and empowered to appoint such additional officers, divorce commissioners, commissioners in chancery, special commissioners, jury commissioners, and probation officers, and such medical, clerical and secretarial assistance as shall enable the court to discharge all the duties required of it under the provision of this act, and the general laws of the state. The judge may appoint a chief probation officer, assistant probation officers, and necessary medical, clerical, secretarial and other necessary assistants to be paid by the county court. Such appointments shall be made by the judge and the appointees shall serve during the will and pleasure of the judge.

'The chief probation officer shall receive as compensation for his or her services an annual salary of not less than four thousand dollars nor more than six thousand dollars to be determined by the judge. Assistant probation officers and medical assistants shall receive as compensation an annual salary of not less than three thousand nor more than forty-eight hundred dollars to be determined by the judge. Clerical and secretarial assistants shall receive as compensation for his or her services an annual salary of not less than twenty-seven hundred dollars nor more than thirty-six hundred dollars to be determined by the judge. In addition to the annual salary herein provided for the chief probation officer and each assistant probation officer and medical assistants, they shall be reimbursed by the county court by reason of his or her necessary expenses actually incurred in the performance of official duties including an allowance of seven cents a mile for his or her automobile driven in the performance of official duties. The appointment of the chief probation officer, assistant probation officers, medical and secretarial assistants, when made by the judge, shall be entered on the law order book of the court. A copy of the order of appointment shall be transmitted to the clerk of the county court. Thereupon, the county court shall make provision for payment and shall pay the salaries of the chief probation officer, assistant probation officers, medical, clerical and secretarial assistants as shown by the order of appointment. The annual salaries provided for in said order of appointment shall be paid in equal monthly installments. Expenses and mileage accounts of the chief probation officer, assistant probation officers, and medical assistants shall be itemized and verified and presented to and paid by the county court, if such accounts are approved by the judge * * *'.

The only material differences in the 1953 Amendment and the 1949 Amendment relate to the amount of the salaries of the chief probation officer, assistant probation officers, medical, clerical and secretarial assistants. Those salaries, as fixed by the 1949 Act, were: Chief probation officer, not less than two thousand four hundred dollars, nor more than four thousand eight hundred dollars; assistant probation officers and medical assistants, not less than two thousand dollars, nor more than three thousand dollars each; clerical and secretarial assistants, not less than one thousand eight hundred dollars, nor more than two thousand seven hundred dollars each. Section 9 of the 1947 Act not attempted to be amended by either the 1949 Act or the 1953 Act.

Acting under authority of the 1953 Act, the Domestic Relations Court of Kanawha County, on June 26, 1953, entered an order fixing the annual salary of the chief probation officer for the fiscal year 1953-1954 at five thousand four hundred dollars; the salaries of three assistant probation officers at four thousand four hundred twenty dollars, three thousand nine hundred sixty dollars, and three thousand three hundred dollars, respectively; and the salaries of two secretaries at three thousand six hundred dollars and three thousand three hundred dollars, respectively. As may be noticed, the amounts of the salaries so fixed were within the respective minimum and maximum limits authorized by the Legislature. In each instance, however, the annual salaries so fixed amounted to a substantial increase over the previous annual salary of the respective officers and employees. The aggregate amount of the salaries, as fixed by the order of the Domestic Relations Court of Kanawha County, for the fiscal year 1953-1954, was twenty-three thousand nine hundred eighty dollars. The order also directed the County Court of Kanawha County to appropriate the sum of two thousand eight hundred dollars for the purpose of paying 'the expenses and mileage accounts of the Chief Probation Officer and Probation Officers incurred in their official duties * * *'. The amount directed to be appropriated for expenses for the fiscal year 1953-1954 was an increase of three hundred dollars over the amount of such expenses for the previous fiscal year.

The County Court of Kanawha County refused to recognize the validity of the order, and refused to include in its 'Levy Estimate' for the fiscal year 1953-1954 the amount of twenty-three thousand nine hundred eighty dollars for the payment of such salaries and the sum of two thousand eight hundred dollars for the payment of such expenses. The defendant, however, included in its ,'levy Estimate' for that year the amount of twenty-five thousand dollars for payment of all salaries and expenses of officers and employees appointed by the Domestic Relations Court of Kanawha County and, by letter dated August 15, 1953, informed the Domestic Relations Court of Kanawha County that 'your budget for the fiscal year has been set by the County Court at $25,000 (Includes travel)'. It may be noticed that the salary of the Judge of the Domestic Relations Court of Kanawha County is not involved.

Defendants demurred to the petition filed. The controlling question of law raised by the demurrer relates to the constitutionality of Chapter 188 of the 1953 Act, under which petitioners claim authority in the Domestic Relations Court of Kanawha County to fix the amount of the salaries of the officers and employees mentioned in that Act. The contention of defendants is that the function of fixing the amounts of salaries for the officers and employees is primarily administrative, for legislative determination; and that any enactment of the Legislature which attempts to vest administrative functions in the judicial department of the government is unconstitutional, and void, as being violative of Article V of the Constitution of West Virginia, which reads: ' § 1. The Legislative, Executive and Judicial Departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.'

We are, therefore, necessarily facted with the constitutional question raised. No other question is raised, or appears to us, upon which the case...