Board of Supervisors v. Coons , 121 Va. 783 ( 1917 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court.

In our view of these causes the following decisive questions arise therein, which we will consider and pass upon in their order as stated below.

1. Has the board of supervisors of a county any discretion to refuse to act in fixing the compensation and other allowances of a county clerk allowed by law at something, within the limits prescribed by statute; or if it acts, to impose a condition or conditions upon the payment of such compensation, on the ground that the clerk has not performed, or is not performing, his duties as such?

This question must be answered in the negative. Blair v. Marye, Auditor, 80 Va. 485. The principle applied in the case just cited is the same as that which is involved in the undertaking by a board of supervisors to withhold any action fixing the amount of, or (what is the same thing in effect) the undertaking by such board to place a condition or conditions upon the payment of the salary or compensation allowed by law to an officer whose office or position is not created by the board of supervisors but by law. Such an office or position is not the creature of the board of supervisors but of the law. By the law, therefore, and not by the board of supervisors, except as they may act in accordance with the law, must the salary or compensation of such office or position be fixed. For any failure of such an officer to discharge his duties which are prescribed by law, the remedy of mandamus will lie. To allow boards of supervisors to withhold any action aforesaid, or to place a condition or conditions upon the payment of the salary or compensation aforesaid, would be to allow such boards to nullify the election of.the officer to the extent of the emoluments of the office allowed by law thus denied him.

The discretion in the premises vested by law in the board of supervisors is not to refuse to act, or if they act, not to act arbitrarily, but according to law. They have a discretion, given by statute as aforesaid, as to the amount of the allowances. But that discretion was exercised by the order of August 31, 1917.

A board of supervisors undoubtedly has a discretion also as to fixing the time or times of payment of salaries and allowances of county officers, if exercised for good and sufficient cause — such as the condition of the county treasury in the lack of funds to pay same at a certain time or times in the year, because of some situation against which the board did not and could not reasonably have been expected to provide in the next preceding laying of the county levy, or the like cause, operating impersonally. For the reasons stated above, however, the board of supervisors of a county has no discretion to fix a different time of payment of the annual salary and other allowances provided for by law of a county clerk from the times of payment of salaries and allowances of other county officers allowed by law, on the ground that the clerk is not discharging or has not discharged his duty as such.

2. Is the said clerk entitled, in the instant causes, to interest on the unpaid amount of the allowances made him by order of said board of August 81, 1917, to-wit, on the instalments thereof of $215.00 from July 1, 1917, and on $215.00 from October 1, 1917, until paid?

On this question the cases of Lynchburg v. Amherst Co., 115 Va. 600, 80 S. E. 117, and Blair v. Marye, Auditor, 80 Va. 485, are cited by counsel for the clerk, and in that connection it is stated by counsel: “We simply mention what at least appears to be a conflict in the two cases mentioned for whatever it may be worth to the court.” On this subject we deem it sufficient to say that we do not consider that there is any conflict between the two cases referred to, and that it is settled by the case of Lynchburg v. Amherst Co., supra, that the obligations of the counties of the State of the character in question bear no interest.

3. What is the true construction of the statute law of the State on the subject of the allowance to a clerk of extra compensation, in addition to his salary as clerk, for current general indexing, i. e., the general indexing of the deed, will and judgment lien docket books according to a general index system adopted prior to or in use in the county at the time of such current general indexing — so far as brought in question in the instant causes?

This question can best be answered by having before us the statute law on the subject. The statute under which the questions involved in the instant causes all arose was enacted February 29, 1892, is contained in Acts of Assembly 1891-2, p. 772, and, so far as material, is as follows:

Section 3184. “The court of every county * * * wherein a general index to the deed books, will books * * * judgment lien docket books * * * in the clerks office of such county * * * has not been provided or wherein such general index has been provided and has become so defaced as to render another general index necessary or proper, or wherein the index does not show the Christian names or the initials of the grantor, grantee, or testator, may, in its discretion, appoint a suitable person, whose duty it shall be to make a general index to such deed books in the full names of the grantor and grantee, and a general index to the will books * * * judgment lien docket books * * *; and the said court shall certify a proper allowance to the person so appointed as compensation for services performed under such order, and direct warrant therefor payable out of the treasury of such county * * * and the board of supervisors of the county * * * shall make sufficient levy for same. It shall be the duty of the clerk of every court * * * to index all recorded deeds, wills, * * * docketed judgments * * * as well as in the general index as in the deed books, will books * * * judgment lien docket books * * *” (“as” italicized above is evidently redundant, due to an error in draft of act or in printing. This word is absent in section 3184 of Code of 1887 which this act amends.)

This statute did not in terms go beyond providing for a general index containing the Christian names or initials of the persons indexed, in lieu of no general index, or of one defaced so as to render another necessary and proper, or of one which did not show the Christian names or initials of the persons indexed. This was the extent of the improvement in general indexing then contemplated by statute or for which compensation was expressly authorized thereby to be paid. But however that may be, the payment authorized by the statute is to some person, not necessarily the clerk, specially appointed by the court to make the general index mentioned in the statute. That general index did not include books of deeds, wills and judgments recorded and docketed subsequently to the order of court making such appointment. That is made clear by the closing provision of the statute that, “It shall be the duty of the clerk of every county * * * to index all recorded deeds, wills * * * docketed judgments * * * in the general index * * *” where one has been provided. (Italics supplied.) Therefore, if we consider the “Coons’ Index System” as the system of general indexing adopted and in use in said county from 1894 to December 23, 1913, it was the duty of said clerk to do the current general indexing from March, 1894, in the “Coons’ Index System” up to December 23, 1913, without being entitled to any extra compensation therefor other than his salary as county clerk.

It was not until the act approved March 14, 1912, was passed (Acts, 1912, p. 575), that statutory provision was made for further improvement in general indexing, consisting in the advance from a general index giving Christian names or initials of the names indexed, to a legerized system of general indexing, which latter system results in many subdivisions of names which fall together under their alphabetical division under the old system contemplated and provided for by said act of February 29, 1892.

The act approved March 14, 1912, so far as material, is as follows:

“Chapter 283. An act to provide for the indexing of deeds and other records in ledgerized general index books. 1 * * * That the judges of the circuit * * *" courts of this Commonwealth, either in term time or in vacation, be, and they are hereby empowered in their discretion to employ a suitable and efficient person or persons for the purpose and have the deed books, judgment lien docket books * * * wills, * * * indexed in ledgerized general index books in such ledgerized general index system as the said courts may deem expedient, and in their opinion affording as good public service as that contained in and afforded by the said ledgerized general index Key System. And for said work the said courts shall have the power to allow a reasonable compensation to be paid out of the county * * * treasury of the county * * * for which said work is done.

“2. Said indexing may be in addition to or in lieu of the indexes now required to be kept under section thirty-one hundred and eighty-four of the Code of nineteen hundred and four, as said courts may in their discretion determine.

“3. The board of supervisors of the county * * * wherein said ledgerized indexing shall be directed by the court to be done, shall provide in laying its annual county * * * levy a sufficient sum to pay for said indexing, together with the costs of the necessary index books and stationery that may be required therefor.”

There Was no action taken or purporting'to have been taken by the Circuit Court for Culpeper county under the last named statute.

The last named act was repealed by a still later act, approved March 16, 1916 (Acts, 1916, p. 394), which made provision for a yet further advance in the system of general indexing of records. The last named statute is, so far as material, as follows:

“I. That whenever the attention of the judge of any circuit court of any county * * * is called to the need of an improved system of general indexing to any of the records kept by the clerk of such court, it should be the duty of such judge in his discretion, to appoint a committee to inquire into the necessity for such indexing and make a report to said court, which report may be made and filed either in term or in vacation.

“2. If such committee shall report that the work is needed, it shall be the duty of said judge, in his discretion, in term or in vacation, to authorize and direct said committee to make a written contract with some responsible and experienced person or persons for the installing of said work.

“The committee so appointed, subject to the approval of the court, shall contract for a modern family name, or ledgerized, alphabetical, key-table index, which shall show such information, in addition to name, as said committee may agree upon.

“3. Where such index is installed, the same plan of index to current records shall be adopted and used by the clerk of such courts, and they shall enter daily thereon all instruments admitted to record. The clerks keeping such current index shall not be required to keep a ‘daily index of receipt of deeds for recordation’ or an individual index to each book, as provided in section twenty-five hundred and five of Pollard’s Code.

“4. The board of supervisors of the county herein (wherein) said indexing shall be directed by the court to be done, shall, if necessary, provide, in laying its annual county * * * levy, a sufficient sum to pay for said indexing and materials.

“5. Chapter two hundred and eighty-three of the acts of the General Assembly of nineteen hundred and twelve is hereby repealed.”

No action of said clerk' or of said court or board involved in the instant cause was, or could have been taken under the last named act, which was not enacted until March 14, 1916, as aforesaid, and did not go into effect until ninety days later, but its provisions are quoted to show the progressive advance in the statute law on the subject of general indexing to meet modem growing demands arising from the general appreciation of the value of the improvements which have been devised in such indexing.

It is apparent, therefore, that, in truth, the said clerk, in his action under the order of court of March, 1894, was a pioneer in the improvement of general indexing of records and was in advance of the statute law in Virginia on the-subject. The work the said clerk thus did in general indexing the records existing in his office in March, 1894, and the current records thereafter accumulated was in advance and in excess of what the statute on the subject then contemplated, to the extent that he ledgerized such general indexing, in addition to having it show the Christian names or initials of the names indexed. However, only the current indexing covered by said account for $835 is involved in the causes before us. For current general indexing the statute then in force (of February 29, 1892) certainly, as above noted, allowed no extra compensation to be paid to the clerk.

Therefore, the said court, in refusing to allow said account of the clerk for said $835 covering current general indexing as aforesaid, if it did so refuse, acted in accordanee with the statute under which said work was done, in that such statute did not authorize such extra compensation. The fact that said court by other orders entered at prior times allowed and said board approved the payment of similar claims by the clerk is immaterial, for reasons which are obvious.

If, however, the said court did not refuse but attempted to allow said $835 claim, and if the order appearing on the order book of said court of date August 29, 1914, should be considered as an order of such court, the claim is as yet unpaid, the order is still executory, and it was without authority of law; and the said board (whose powers as to allowances of claims are wholly statutory) had no author-ity thereunder to “direct warrant therefor” or to otherwise authorize such payment out of the county treasury. Price, Auditor v. Smith, 93 Va. 14, 24 S. E. 474; Richmond City v. Epps, Sergeant, 98 Va. 233, 35 S. E. 723. Hence the said board was but acting in accordance with law in refusing to allow such payment.

It becomes unnecessary, therefore, to consider the questions raised in these causes as to how such orders came to be entered, or the effect of the entry aforesaid on the margin of the order book that the order was “entered by mistake,” etc.

4. Is it the duty of said clerk to general index the current recorded deed, will and judgment lien docket books in his office aforesaid, which accumulated during the period from December 23, 1913, onward, in some general index system which may hereafter be provided and installed in such office, other than the general index system in which said clerk has recorded such current records during such period?

From what has been said above touching the facts and the statute law on the subject, it is apparent that such duty does not exist.

As above noted the “Coons’, Index System’ ’ was not in force or in use in said county later than December 23, 1913. The said clerk complied with the requirements of said statute (Act of February 29, 1892) by doing the current general indexing in such system so long as it was in force in such county, to-wit .to December 23, 1913. In doing so, as above noted, he did nothing more than his statutory duty, and hence he was entitled to no extra compensation therefor. At the same time, he did nothing less than his duty as clerk up to that time. Therefore, by reason of the failure of the county, whether through the said circuit court or said board or otherwise, to provide the “Coons’ Index System” to the said clerk as such, or the necessary index books for the work of current general indexing therein, thereafter the existence of such index system in said clerk’s office ceased to continue, and said county' was without such system for the general indexing of any records in its clerk’s office accumulating after December 23, 1913.

It is needless for us to inquire by whose fault this deplorable condition was induced. In these causes, being proceedings for mandamus, we are powerless to enforce any remedy in the premises; if indeed any remedy exists. We are confined to a consideration of the facts as they exist and to the inquiry as to whether any rights of the parties arise under the law as applicable thereto which are enforceable by mandamus.

The “Coons’ Index System” not being in use or available for use in said county after December 23, 1913, it was not the duty of said clerk to do the current general indexing therein. In that dilemma the said clerk returned to the old general index system in use in his office prior to March, 1894, subject to some improvements thereon above alluded to. He thereafter, until these causes were instituted, did the current general indexing by such system. Such system met the requiremnts of the statute law on the subject prior to the act of March 14, 1912. Action of the circuit court adopting a general index system was, under the statute formerly existing on the subject, and is now under the statute at present existing on the subject, a condition precedent to the ascertainment of what general index system, if any, other than that previously in use, it is the duty of a county clerk to use at any given time in current general indexing the records of his office. As above noted, the said circuit court did not adopt the “Coons’ Index System” for any definite period of time, nor did the said county, through said court or said board or otherwise, make any contract for the use of such system, or for the necessary index books therefor, beyond December 23, 1918. No other system of general indexing was adopted by said court thereafter, either under the act of February 29, 1892, or of March 14, 1912, in lieu of the old system aforesaid in force prior to any order of court on the subject. We think, therefore, that said clerk was, under the circumstances, justified in returning to such old system of general indexing of the current records after December 23, 1913, and that in doing such indexing in accordance therewith he has complied with his duty in that behalf as prescribed by statute.

The question 4 under consideration must therefore be answered in the negative.

5. Is a board of supervisors authorized by law to allow to the county clerk for recording a deed to the county the fee allowed by section 3505 of the Code of Virginia to be charged by clerks for recording deeds, in addition to the allowance of $50 made to such clerk for road services?

No question is raised before us in these causes as to the authority of said board to make the allowance which it has made as aforesaid to said clerk for road services, in addition to the $600 annual allowance as salary as clerk of the county (Sec. 834, Code of Va. as amended), and $60 for salary as clerk of said board (Sec. 852, Code of Va., as amended), and $150 for stationery (Sec. 846, Code of Va.), hence authority therefor by statute law must be presumed by us to exist so far as these causes are concerned. If such authority exists, the presumption is that such allowance was made to cover services for which no specific compensation is provided by statute. The record before us does not disclose that said compensation for road services was made to cover such fees as said recordation fee, and, therefore, we must conclude that it was improperly disallowed by said board.

For the foregoing reasons, we are of opinion to award the writ of mandamus prayed for by said clerk in cause No. 2, to compel the board of supervisors of Culpeper county to forthwith issue a warrant in favor of said clerk for said $1.25 recordation fee and also for $430 in his favor for the allowances made him by order of said board as above stated for services, etc., to October 1, 1917, and that on or about December 31, 1917, such board shall issue to said clerk a warrant for $215, the remainder of such allowances, should such clerk continue to fill his said office to the latter date; such warrants to be payable by the treasurer of the county out of the county funds available for that purpose, without interest. We are of opinion to deny all further relief by writ of mandamus prayed for by said clerk in cause No. 2, and to deny the writ of mandamus prayed for by said board of supervisors in cause No. 1. The order of this court will be entered accordingly, with, costs in favor of said clerk as the party substantially prevailing.

Mandamus denied in Cause No. 1.

Mandamus awarded in part as prayed for in Cause No. 2.