State ex rel. Ward v. Raleigh County Court

• Decision Date: 14 July 1953
• Docket Number: No. 10578,10578
• Citation: 138 W.Va. 551,76 S.E.2d 579
• Parties: STATE ex rel. WARD, v. RALEIGH COUNTY COURT et al.
• Court: West Virginia Supreme Court

Page 579

76 S.E.2d 579

138 W.Va. 551

STATE ex rel. WARD, v. RALEIGH COUNTY COURT et al.

No. 10578.

Supreme Court of Appeals of West Virginia.

Submitted May 19, 1953.

Decided June 30, 1953.

Dissenting Opinion July 14, 1953.

Syllabus by the Court.

Chapter 31, Acts of the Legislature, 1949, amending Chapter 7, Article 7, Section 12 of the West Virginia Code, imposes a mandatory duty upon the county court to allow the actual and necessary expenses incurred or expended by a sheriff and his deputies in the performance of the duties set forth therein, and the county court may not fix an arbitrary maximum beyond which such actual and necessary expenses may not be incurred.

W. A. Thornhill, Jr., Beckley, for petitioners.

Anthony J. Sparacino, Beckley, for defendants.

BROWNING, Judge.

John C. Ward, Sheriff of Raleigh County, filed this petition on behalf of himself and certain of his deputies asking that a writ of mandamus be directed to the County Court of Raleigh County and its Commissioners compelling them to approve certain expense accounts for payment.

The petition avers that the relator appeared before the County Court, at a regular meeting thereof on April 7, 1953, and presented, under oath, a full and accurate account of all his actual and necessary expenses, and those of his deputies, incurred under the provisions of Chapter 7, Article 7, Section 12 of the West Virginia Code; and that some accounts were approved while others were denied for the reason that on December 19, 1950, the County Court had entered an order forbidding the sheriff or his deputies from incurring any expense in excess of $125 per calendar month.

The County Court demurred to the petition on the grounds that: (1) It is shown on the face that the defendants in refusing payment exercised their judgment in the matter and have not refused to perform any duty which they are compelled by law to perform; and (2) that the plaintiff has other specific and adequate remedies at law; and then answered denying that they proceeded under the December 19, 1950, order in refusing payment, but averring that payment was refused because the statements of account presented did not accurately itemize actual and necessary expenses legally incurred, thus raising an issue of fact.

The County Court, on May 5, 1953, entered an order approving each of the accounts now in issue in the amount of $125, the order further stating that: '* * * and all claims for any amount in excess of One hundred twenty five dollars ($125.00) contained in each of said vouchers for reasons appearing to the court are not approved and are disallowed, to which action of the court the sheriff, John C. Ward, and his deputies, at the time objected and excepted. This order should have been entered April 7, 1953, is entered now for then.'

Article VIII, Section 24 of the Constitution of West Virginia provides that county courts shall: '* * * have the superintendence and administration of the internal police and fiscal affairs of their counties, * * * with authority to lay and disburse the county levies. * * *' The office of sheriff is likewise a constitutional office with certain powers and duties prescribed both by the Constitution of this State and by the Legislature.

Code, 7-7-12, as amended by Chapter 31, Acts of the Legislature, 1949, provides: 'The county court shall allow the actual and necessary expenses incurred or expended by the sheriff in arresting, pursuing, or transporting persons accused or convicted of crimes and offenses, including the cost of law enforcement and safety equipment, and in conveying or transferring any person to or from any state institution to which he may be committed from his county, where by law the sheriff is authorized to convey or transfer such person, and shall allow the actual and necessary expenses incurred or expended in serving summonses, notices, or other official papers in connection with the sheriff's office, including an allowance of seven cents per mile for each mile a sheriff or deputy sheriff is required to drive his personally owned car in the performance of his duties hereunder. Every sheriff shall file monthly, under oath, a full and accurate account of all his actual and necessary expenses mentioned in this section, supported by verified accounts for his deputies for amounts expended or incurred by each, before payment thereof shall be allowed by the county court.'

Mandamus will lie to enforce the performance of duties imposed by statute upon a public official. State ex rel. Board of Aeronautics v. Sims, 129 W.Va. 694, 41 S.E.2d 506. In State ex rel. Bailey v. Raleigh County Court, 109 W.Va. 31, 152 S.E. 784, it was specifically held that a county court may be compelled by mandamus to perform a duty prescribed by statute.

The petition, which alleges that the respondents had refused to approve for payment verified accounts submitted by the sheriff and certain of his deputies, although such expenses were actual, necessary and incurred in the performance of their official duties, is, in the absence of explanation by the respondents, sufficient, and, therefore, the demurrer is overruled.

The respondents in answering deny that their refusal to approve the accounts of the relator and his deputies was based upon the order of December 19, 1950, and state that they disallowed certain accounts presented because they did not show accurate itemization of actual and necessary expenses legally incurred and 'that the accounts presented contained mileage claims on behalf of several deputies who are employed strictly on a salary basis, * * *.' It appears from the depositions that the respondents E. Van Dorsey and A. J. Lilly, present county commissioners, were not members of the court on December 19, 1950 when the order heretofore mentioned was entered, but that the respondent H. G. Farmer was a member at that time. Van Dorsey and Lilly testified that they were, on April 7, 1953, unaware of the existence of the order of December 19, 1950, and all three members of the court testified that the refusal to approve the accounts was not based upon that order. However, it appears from the depositions that whatever the court's action may have been based upon, the accounts of the sheriff and his deputies had, from the date of the entry of the December 19, 1950 order to April 7, 1953, been routinely reduced to the sum of $125 a month in all cases where the accounts exceeded that sum with a few exceptions covering the months of January and February, 1953. Furthermore, it would appear from the depositions of the commissioners that no inquiry was made of the sheriff or his deputies regarding the legitimacy of any item in any expense account, although an examination of the photostatic copies of several of the accounts filed at the April meeting of the court shows notations following certain items such as 'Why', 'No detail', and other similar insertions. The commissioners, however, did not testify, nor do they contend, that any questionable item was specifically eliminated from any of the expense accounts submitted.

It is evident from this record that the county court followed the general practice of paying all expense accounts submitted by the relator and his deputies in amounts less than $125, and with the few exceptions noted, reducing all others to that sum. If any doubt existed upon this question, it was resolved by the order entered by the county court on May 5, 1953, subsequent to the filing of the relators' petition in this Court and the issuance of the rule. We do not consider that order for any purpose other than the evidentiary value it may have in this proceeding. An attested copy thereof was offered in evidence by relators during the taking of the depositions without objection by respondents. That order specifically states, as heretofore related, that the accounts of the sheriff and his deputies, which are in dispute in this proceeding, are approved for the sum of $125, and all in excess thereof 'for reasons appearing to the court are not approved and are disallowed.'

We are well aware of the fact that mandamus is never employed to prescribe in what manner officers exercising discretionary powers shall act, and that it cannot be used to control the manner in which an elective duty shall be performed, nor to direct the exercise of discretion. Taylor County Court v. Holt, 61 W.Va. 154, 56 S.E. 205. However, mandamus will lie to compel an administrative officer to do a particular act which he has refused to do, even if his action depends upon the exercise of judgment or discretion if his refusal to act is arbitrary, capricious, or based upon a misapprehension of the law. State ex rel. Noyes v. Lane, 89 W.Va. 744, 110 S.E. 180; State ex rel. Dillon v. Neal, 104 W.Va. 259, 139 S.E. 757; State ex rel. Payne v. Board of Education, W.Va., 63 S.E.2d 579.

The language used by the Legislature in Code, 7-7-12, is free from ambiguity, and its meaning is plain, therefore, interpretation by this Court is unnecessary. State ex rel. Department of Unemployment Compensation v. Continental Casualty Co., 130 W.Va. 147, 42 S.E.2d 820. It gives the respondents no authority to fix a maximum sum to be paid the sheriff or his deputies for legitimate expenses incurred, and their action in doing so is arbitrary and based upon a misapprehension of the clear and mandatory provisions of Code, 7-7-12.

We do not say, however, that Code, 7-7-12, requires the County Court of Raleigh County to approve as submitted all expense accounts of the sheriff and his deputies. That section also requires that they shall file an accurate, verified account of their actual and necessary expenses before payment thereof be allowed by the county court.

The respondents maintain that the relators have not complied with that provision of the law. The details of the manner in which the respondents exercise their discretionary authority in this regard cannot be controlled in this...