State ex rel. Sprague v. Greenbrier County Court

• Citation: 117 S.E. 135,93 W.Va. 481
• Decision Date: 03 April 1923
• Docket Number: 4868.
• Parties: STATE EX REL. SPRAGUE v. GREENBRIER COUNTY COURT ET AL.
• Court: West Virginia Supreme Court

117 S.E. 135

93 W.Va. 481

STATE EX REL. SPRAGUE v. GREENBRIER COUNTY COURT ET AL.

No. 4868.

Supreme Court of Appeals of West Virginia.

April 3, 1923

Submitted March 23, 1923.

Syllabus by the Court.

The employment of one as a county prohibition officer by the prosecuting attorney, for the purpose of apprehending violators of the prohibition laws, when approved by the circuit court of the county, is valid, and for his services so performed and expenses so incurred, when approved by the prosecuting attorney pursuant to the order of the circuit court, he is entitled to be paid out of the general county funds of the county treasury, notwithstanding the fact that the county court may have laid no levy for that purpose.

Accounts for such services and expenses, when properly approved, are to be paid out of the general county funds and are, as claims against such funds, equal in dignity and priority to salaries of county officers and other fixed charges thereon.

That the general county fund may be exhausted before the end of the fiscal year by the payment of the fixed and definite charges thereon is no excuse for the nonpayment of the duly approved accounts of a county prohibition officer, lawfully employed, so long as there remains an unexpended balance in that fund.

The creation of a debt or demand against the county court of a county under section 21, c. 32A, Barnes' Code 1923 for the purpose of apprehending violators of the prohibition laws, is not contrary to, but pursuant to, public policy as declared by the Acts of the Legislature dealing with the subject of prohibition.

Section 21, chapter 32A, Barnes' Code 1923, authorizing the prosecuting attorney to offer rewards for the apprehension of persons charged with crime or to expend money for the detection of crime, on the approval of the Governor or the circuit court of his county, is not repealed, expressly or impliedly, by section 15, chapter 32A, Code (chapter 115 Acts 1921), creating the office of state commissioner of prohibition.

Neither the creation of the office of state commissioner of prohibition nor the employment by the prosecuting attorney of a county, under section 21, c. 32A, Code, of a county prohibition officer, relieves the sheriff of the county from his duties of enforcing the prohibition laws.

Under section 21, chapter 32A, Code, one so employed by the prosecuting attorney of a county is not entitled to be paid out of the county treasury for services rendered or expenses incurred in advance of the approval of the Governor, or of the court of the county vested with authority to try criminal offenses, or such judge thereof in vacation.

Where a prosecuting attorney, with the approval of the circuit court of his county, has employed a person to apprehend persons charged with the violation of the prohibition laws and to expend money for the detection of violations thereof accounts for such services and expenses are duly approved by the prosecuting attorney, and are presented to the county court for payment and payment thereof is refused, though there is an unexpended balance in the general county fund sufficient to pay the amount, this court, on application will compel payment thereof by mandamus.

Petition by the State, on the relation of G. E. Sprague, against the County Court of Greenbrier County and others for alternative writ of mandamus directing respondents to draw and deliver to petitioner an order for payment of his salary as prohibition officer. Writ awarded.

S. M. Austin, of Lewisburg, for relator.

J. S. McWhorter, of Lewisburg, for respondents.

MEREDITH J.

Upon the petition of G. E. Sprague, this court awarded an alternative writ of mandamus, directing the county court of Greenbrier county and E. W. Sydenstricker, H. E. Williams, and A. G. Davis, commissioners thereof, to draw and deliver to the petitioner orders for the payment of his salary and expenses as a prohibition officer for the months of January and February, 1923, aggregating $497, or show cause, if any, why such accounts should not be paid.

The writ shows that under the authority of section 21, chapter 32A, Barnes' Code 1923 (Code 1913, § 1300), the judge of the circuit court of Greenbrier county on February 2, 1923, authorized S. M. Austin, the prosecuting attorney of said county, to expend money for the detection of crime therein, with the further order that, when approved by the prosecuting attorney, any money so expended should "be paid out of the county fund in the same manner as other county expenses are paid"; that after a copy of the order of the circuit court had been certified to the county court petitioner presented two bills for services and expenses to the county court for payment, which payments were refused by that body. The first bill, presented February 6, 1923, represented petitioner's account for January, itemized as $140 for services and $126 for expenses. Petitioner's right to this compensation accrued by reason of his having been regularly appointed a prohibition officer by W. G. Brown, state prohibition commissioner, and employed by Austin, the prosecuting attorney, for the month of January, at the agreed salary of $5 per day and expenses. The second bill, presented March 6, 1923, represented petitioner's account for February, $125 for services, that being the salary fixed by the prosecuting attorney for February, and $106 for expenses.

As before stated, the county court refused to issue an order for the payment of these accounts. On the contrary, by orders of record, dated February 6, 1923, and March 6, 1923, respectively, the court rejected and refused to allow petitioner's claims. The writ further recites the duty of the county court, under section 21, chapter 32A, of the Code, to honor petitioner's bills of account, as alleged in the petition, and concludes with a command that the county court through the respondents, its commissioners, either--

"draw and deliver to G. E. Sprague, the relator, an order for the payment of his account for services rendered for the month of January, 1923, amount $140, and his expense account for the month of January, 1923, of $126, and either draw and deliver to him an order for the payment of his account for services rendered for the month of February, 1923, amounting to $125, and his expense account for the month of February, 1923, amounting to $106, which accounts are to be paid out of the county funds in the hands of the sheriff of said county for administration, or to show cause, if any it or they have, why it, or they, should not do so."

Exhibits filed with the petition include itemized statements of petitioner's bills of account, affidavits of petitioner and the prosecuting attorney that the amounts specified are properly owing to the petitioner and unlawfully withheld by the respondents, and a certified copy of the order of the circuit court authorizing petitioner's employment.

Two of the respondents demur to the writ, and by return and answer deny the validity of petitioner's claims therein set out. Respondent H. E. Williams also answers the petition, but avers that he was not present when the orders of February 6 and March 6, 1923, were entered; that he approves the payment of petitioner's claims, and prays that the writ be granted.

Although respondents assign several reasons why petitioner's demands were properly refused, we think the defenses chiefly relied upon may be summarized as follows:

(1) The county court's estimate and levy of August, 1922, containing no provision for petitioner's compensation, and, no other fund being available for the purpose, the employment of petitioner subsequent to January 1, 1923, created no binding obligation on the county.

(2) The attempted exercise of authority to create the debts claimed is contrary to public policy and chapter 28A of the Code.

(3) The statements of account filed before the county court, copies of which are exhibited, do not show affirmatively that the expenses were incurred in the detection of crime, as defined by section 21, chapter 32A, of the Code.

(4) Section 21, chapter 32A, of the Code, under which petitioner claims, is in effect repealed by section 15, chapter 32A, Code, which provides for the office of state commissioner of prohibition. Acts 1913, c. 13; Acts 1921, c. 115.

(5) The order of the circuit court of February 2, 1923, did not authorize the expenditure of money for the detection of crime for services rendered by petitioner during the month of January preceding.

Petitioner files a demurrer and special replication to the return. In them he denies that the county court was not lawfully empowered to pay the accounts for his services as a prohibition officer, and avers that the payment was not in fact refused because of any irregularity in the statements rendered or lack of funds wherewith to pay them, but because the respondents "did not believe in employing a prohibition officer for said county and that the suppression of crime and the violation of crime under the prohibition statute should be in the hands of the sheriff."

The parties being fairly at issue on all the material questions raised by respondents' return, we will consider them in the order of their recital above.

1. Respondents have dwelt at length, both in their pleadings and in the argument of counsel, upon the proposition that because petitioner's compensation was not provided for in the levy of the August preceding, and there being no other funds available therefor, his employment by the prosecuting attorney created no binding debt upon the county court. To consider fully this proposition, it is necessary that all of the attendant circumstances be reviewed in some detail. Petitioner was originally employed as prohibition officer for...