State Ex Rel. W. P. Baker v. County Court Op Tyler County.
| Decision Date | 07 June 1932 |
| Docket Number | (No. 7324),(No. 7357) |
| Citation | 112 W.Va. 406 |
| Court | West Virginia Supreme Court |
| Parties | State ex rel. W. P. Baker, Sheriff v. County Court opTyler County et al.andState ex rel. County Court of Tyler, County et al. v. Honorable James F. Shipman, Judge, et al. |
The appeal to the circuit court from an order of the county court fixing the aggregate sum to be paid to deputy sheriffs and other employees of the sheriff, provided for in Code 1931, chapter 7, article 7, section 7, is in contravention of Article V of the constitution which makes the legislative, executive and judicial departments distinct, and prohibiting any person from exercising the powers of more than one of them at the same time.
Error to Circuit Court, Tyler County.
Mandamus proceeding by the State, on the relation of W. P. Baker, Sheriff, against the Tyler County Court and others. To review a judgment of the circuit court issuing a writ of mandamus, the respondents bring error. Original application by the State, on the relation of the Tyler County Court and others, for a writ of prohibition prayed to be directed to the Honorable James F. Shipman, Judge, and others.
Prohibition awarded; mandamus proceeding dismissed.
0. J. Hill, I. M. Underwood, and W. J. Brennan, for plaintiffs in error in first case and for petitioners in second case. Willis & Ball, for sheriff.
These two proceedings involve a controversy between the county court on the one side and Baker, sheriff, on the other over the aggregate sum allowed to the sheriff to pay his deputies and other help for the fiscal year 1932; and will be considered together.
The sheriff filed with the county court an estimate of the amount to be allowed for the purposes above set out as provided in chapter 7, article 7, section 7, Code 1931, which estimate totalled $3,790.00. The county court allowed him $2,920.00.
The mandamus case was to compel the county court to sign a certificate of the proceedings before it culminating in the allowance of $2,920.00, with a view of perfecting an appeal by the sheriff to the circuit court, and upon hearing, the mandamus was issued. The county court obtained a writ of error from this court. Pending the writ of error, the sheriff obtained an appeal of the matter of the allowance from the circuit court, and the 6th day of June, 1932, was fixed as the time for trying the appeal, thus rendering moot the signing of the certificate commanded by the mandamus. Then the county court instituted this proceeding in prohibition alleging in its petition that the circuit court has no jurisdiction to en-tertain the appeal; that the appeal provided for in the statute violates Article V of the constitution.
Logically, the question of law raised by the petition for prohibition should first be considered, for if the circuit court has not jurisdiction to entertain the appeal, then mandamus could not be issued to compel the making up of a record for an appeal. Mandamus will not lie to compel a vain and useless act. In other words, if the circuit court cannot entertain an appeal, proceedings to effect such appeal are without useful purpose.
The statute, 7-7-7, Code 1931, provides the procedure for fixing the amount of compensation to deputy sheriffs and other employees by the county court, and that part of the section which provides for an appeal to the circuit court from the award of compensation is attacked as unconstitutional, and void. That part reads: "Provided further, that any taxpayer feeling aggrieved at the allowance made by the county court to the sheriff, and any sheriff feeling that the business of his office cannot be conducted properly by the maximum allowance by the county court for office expenditures, or the number of deputies and their salaries, shall be allowed the right of appeal to the circuit court of such county for the purpose of determining the equity of such maximum allowance." The attack upon this part of the statute is based on Article V of the constitution. That article reads: '' 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." A casual reading of that part of the statute above quoted shows that the circuit court has been given power to determine whether the amount allowed the sheriff is too much or too little. The court determines the '' equity'' of such maximum allowance. There is thus lodged in the circuit court the power of substituting its judgment for that of the county court in its administration of this part of the fiscal affairs of the county accorded it by Article VIII of the constitution, which provides that the county courts shall "under such regulations as may be prescribed by law, have the superintendence and administration of the internal and police affairs of their counties * * * with authority to lay and disburse the county levies." A casual reading also shows that a judge of the circuit court is empowered to exercise the functions of a separate department of government. (Jan any person exercise the powers of more than one of the legislative, executive or judicial departments of the government at the same time? Article V, constitution, says no.
The question raised by the petition for prohibition and the demurrer thereto was recently before this court and carefully considered in Hodges v. Public Service Commission, 110 W. Va. 649, 159 S. E. 834, which invalidated the constitutionality of the Water Power Act of 1929, which act conferred upon the circuit court of Kanawha county, by appeal from the Public Service Commission, power to substitute its judgment for that of the commission in the matter of grants of permits to water power companies a legislative power primarily delegated to the public service commission and the governor. The learned and logical opinion prepared by Judge Hatcher (showing much research), accentuates the purpose and wisdom of Article V of the constitution, designed to keep separate and distinct the three fundamental departments of constitutional government. The language of that opinion is so apropos that it may be well to repeat it here, for it condemns the attempt of the statute under consideration to empower the circuit court to exercise the proper functions of the legislative or executive departments. The opinion (p. 653) says:
"We are aware that section 12 of article VIII confers on circuit courts 'such other jurisdiction, whether supervisory, original, appellate or concurrent, as is or may be prescribed by law'; and that by reason of this clause, this court has upheld enactments imposing on circuit courts jurisdiction in such legislative matters as the valuation of property for taxation (on appeal) and the incorporation of towns. See Mackin v. County Court, 38 W. Va. 338, 38 S. E. 632,...
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