State Ex Rel. Christian v. St. Clair , 153 W. Va. 1 ( 1969 )

Berry, Judge:

This is a proceeding in mandamus instituted in this Court to compel the respondent, E. L. St. Clair, President of the County Court of McDowell County, to sign the several checks or warrants for the payment of services performed by the petitioners Barbara Moore, Leonard Bolt, Jackie Frederick, George Deskins, Ronnie Mathis, Roy Smith, Gerald Smith and Charles Lawson as deputies of Jack L. Christian, Sheriff of McDowell County, from January 7, 1969 through January 31, 1969. A rule to show cause was issued by this Court on February 10, 1969 returnable February 18, 1969 at which time it was submitted for decision of this Court on arguments and briefs.

The facts in this case are relatively simple and are not disputed. On January 1, 1969 the petitioner Jack L. Christian, the duly elected sheriff of McDowell County, appeared before the County Court of McDowell County and submitted a written list containing the names of twenty individuals whom he desired to appoint as deputy sheriffs of McDowell County, West Virginia, with their salaries fixed by him within the appropriation contained in the budget and approved by the county court, and he requested the consent of the county court to such appointments in accordance with the provisions of Chapter 6, Article 3, Section 1 (a) (2), as amended.

The county court by order entered January 1, 1969 consented to the appointment of eleven of those appearing on the list submitted by the sheriff as said deputies, deferred action on its consent to the appointment of one of the deputies until a later date, but failed to consent to the appointment by the sheriff of eight of the individuals, petitioners herein, whose names appeared on the list of appointments submitted by him to the county court, the selection of those eight having been blocked because a motion to consent to appointment received no second.

On January 7, 1969 the petitioner Jack L. Christian, sheriff of McDowell County, requested the Circuit Court of McDowell County to assent to the appointment of the eight deputy sheriffs, petitioners herein, for temporary service or duty, in accordance with the provisions of Code, 6-3-1 (a) (3), as amended. The reason given for the request for the assent of the circuit court for such appointments was that the failure of the county court to consent to the appointment of the eight deputies here in question left the office of the sheriff without a sufficient number of experienced officers and persons capable of performing duties of deputies in the respective capacities in which they would be used, and thereby created a condition impeding police work in the county and impeding the conduct of the sheriff’s office work.

The Circuit Court of McDowell County, after finding that public interest required the assent to the appointments requested by the sheriff, assented to the appointment of the eight deputies, with the salaries fixed by the sheriff within the appropriation for such payment approved on a preceding budget by the county court, for the performance of temporary service or duty to serve at the will and pleasure of the sheriff of McDowell County.

After the order was entered by the circuit court assenting to the appointment of the eight deputies involved in this proceeding, each of them qualified to perform such service or duty by taking the proper oath of office and executing proper bonds required by the sheriff in such cases, all of which were approved and confirmed by the county court in an order of the court entered January 7, 1969.

On January 31, 1969 the clerk of the county court drew orders or warrants on the county funds, which were also signed by the sheriff, directing the McDowell County Bank to pay such orders but the respondent refused to sign these orders.

The respondent filed a demurrer and answer to the petition in which it was contended that the action on the part of the circuit court in assenting to the appointments of the petitioners as deputies, in accordance with the provisions of Code, 6-3-1 (a) (3), as amended, constituted the performance of a non-judicial function by the circuit court and violated the provisions of Section 1 of Article V of the Constitution of West Virginia, dealing with the separation of powers, which reads as follows: “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.” The answer of the respondent denied that the petitioners Barbara Moore, Leonard Bolt, Jackie Frederick, George Deskins, Ronnie Mathis, Roy Smith, Gerald Smith and Charles Lawson were legally appointed deputies of the sheriff but admitted that each of said petitioners took the oath of office of deputy sheriff of McDowell County and gave bond, which was approved and confirmed by the county court as required by law, all of which was done upon the advice of the prosecuting attorney of McDowell County, and the answer admitted that all of the petitioners above have been acting and serving as deputy sheriffs from January 7, 1969 through January 31, 1969.

It is contended by the respondent that although the petitioners were appointed deputy sheriffs they were appointed to perform temporary service or duty, that there was no specific time as to the length for the temporary duty or services to be performed, and that inasmuch as they were to serve at the will and pleasure of the sheriff such appointments would be indefinite and of a permanent nature and therefore would allow the sheriff of McDowell County to do by indirection that which he could not do directly and would result in the failure of the county court to consent to said appointments being rendered meaningless.

In the case of Hockman v. Tucker County Court, 138 W. Va. 132, 75 S. E.2d 82, it was held that a sheriff can not compel the county court to consent to the appointment of his deputies. In that case the sheriff appointed a deputy who- accepted the appointment, executed the bond and entered into the performance of his duties as deputy sheriff. The county court met at a regular session after the appointment and a motion for the consent to or approval of the appointment was not considered or adopted as in the case at bar, but at the same time, unlike it, no action was taken to approve the bond which was executed by the deputy who had been appointed. Later, at a special session of the county court in the Hockman case a motion was made to disapprove the appointment of the deputy which was adopted by a vote of two to one. At the same time a motion was made to pay the salary of the deputy who had been appointed and had performed the duties as deputy from the 1st to the 24th of January which was adopted by a unanimous vote and he was paid for the service or duty he had performed. It was held in point 2 of the syllabus of the Hockman case that: “The county court has the positive authority to consent or to refuse to consent to an appointment by the sheriff of his deputy and its action in exercising such authority is not subject to judicial direction or control.”

In discussing the question involved in the Hockman case, a question similar to the one presented here, this Court said:

“Article VIII, Section 24, of the Constitution of West Virginia relating to county courts to the extent here pertinent provides that ‘They shall also, under such regulations as may be prescribed by law, have the superintendence and administration of the internal police and fiscal affairs of their counties, * * *.’ Section 1, paragraph (a) (2), Article 3, Chapter 6, Code, 1931, as amended, is in this language: ‘A sheriff, surveyor of lands, or assessor may, with the consent of the county court duly entered of record, appoint any person or persons his deputy or deputies.’ The paragraph just quoted prescribes no qualifications for any person appointed as any such deputy. Paragraph (a) (3), of the same section, article and chapter is expressed in these terms: ‘A sheriff, when in the opinion of the judge of the circuit court the public interest requires it, may, with the assent of said court, duly entered of record, appoint any person or persons his deputy or deputies to perform temporary service or duty.’ By the first quoted provision of the statute the Legislature vested in the sheriff the authority to appoint his deputy and in the county court the authority to consent or not to consent to such appointment. By Section 2 of the same article and chapter, it also gave the power to the sheriff to remove his deputy, without cause, and the power to the county court or other tribunal by and with whose consent the deputy was appointed for good cause shown to remove, or revoke the appointment or the confirmation of, any such deputy. It is clear that in enacting the foregoing statutory provisions the Legislature had in mind the possibility that in exercising its authority to consent to an appointment by the sheriff of his deputy the county court might refuse to give its consent and that, in the event that situation should materialize, the sheriff in protecting the public interest could, with the assent of the circuit court, appoint his deputy or deputies to perform any temporary service or duty.”

The issue in the Hockman case was to compel the county court to confirm or consent to the appointment of a deputy appointed by the sheriff for a permanent appointment or for an indefinite period of time under the provisions of Code, 6-3-1 (a) (2), as amended, and did not involve the assent of a circuit judge to the appointment of a deputy to perform temporary service or duty under the provisions of Code, 6-3-1 (a) (3), as amended, and therefore the statements in the Hockman case with regard to this latter section are only dicta. However, in the Hockman case the county court had unanimously approved the payment of the salary of the deputy for the service he had performed before the county court disapproved the appointment, which is the only issue involved in the instant case. There has never been here any affirmative disapproval by the county court of the appointments made by the sheriff under the provisions of Code, 6-3-1 (a) (2), as amended. In fact, the county court approved the oath of office taken by each deputy in question and the bonds executed by them before they entered into the performance of their duties.

However, the approval of the oaths of office and bonds of the eight deputies by the county court was only for the appointment to perform temporary service or duty. The appointment for permanent service or duty under Code, 6-3-1 (a) (2), as amended, has never been approved by the county court, and therefore such appointment is not complete as the county court has a veto power over such appointment. Wintz v. Board of Education of Charleston District, 28 W. Va. 227; Broadwater v. Booth, 116 W. Va. 274, 180 S. E. 180; Hockman v. Tucker County Court, supra. Any appointment of a deputy made by the sheriff is at his will and pleasure whether it be permanent or temporary. Code, 6-3-2, as amended. The appointment in question in the case presented here is for temporary service or duty only and the statement in the order of the circuit court assenting to such appointment, that said deputies are to serve in accordance with the law and at the will and pleasure of the sheriff, pertains only to the appointments for temporary service and merely meant that the sheriff in accordance with the provisions of Code, 6-3-2, as amended, could remove any of the deputies at his will and pleasure during such temporary service. The circuit court order could not be construed to mean that such appointment was for an indefinite period of time. Under the appointment involved in the case at bar the eight deputy sheriffs, petitioners herein, can not serve as such for an indefinite period. Although the time of such temporary service is not fixed, in any event it can only be for a reasonable time during which their services are needed for the proper performance of duties of the sheriff’s office and for the protection of the public in McDowell County. In the event the county court of McDowell County fails to consent to the original appointments for permanent service or duty either in connection with the original submission of the names of the eight petitioners or on a resubmission thereof, new appointments by the sheriff for permanent service no doubt would be required. See Broadwater v. Booth, supra.

It was held in the case of State ex rel. Richardson v. County Court of Kanawha County, 138 W. Va. 885, 78 S. E.2d 569, that a court could not fix the salaries of its probation officers and compel the county court to correct the annual budget for such court to provide for the payment of the specified sum for such salaries. There is an entirely different situation in the case at bar. The sheriff in appointing the deputies fixed the salaries within the budgetary limitations approved by the county court for such purposes. The case of Cahill v. Perrine, 105 Ky. 531, 49 S. W. 344 and 20 Ky. L. 1454, 1656, 50 S. W. 19, dealt with a somewhat similar situation to the one presented here. In that case the temporary appointments by a circuit judge of guards to conserve the peace was approved where it was provided that the temporary appointments would be for thirty-day periods. A temporary position is for a limited time in contrast to a permanent one which is for an indefinite time. See Winborn v. Tyler, 231 Miss. 166, 94 So. 2d 340 and Mouell v. Local No. 7635, D. C. W. Va., 81 F. Supp. 151.

Inasmuch as the only question involved in the case presented here is the payment of the eight petitioners for their services performed as deputy sheriffs of McDowell County, from January 7 through January 31, 1969, and their oaths and bonds as required by law have been approved by the county court for such temporary service and as the result they became de jure officers in the performance of the duties and services during such time, it is not necessary in the decision of this case to consider or determine the constitutional question with regard to the division of powers raised by the respondent in his demurrer and answer, which is contained in Article V, Section 1 of the Constitution relative to the statute in question, Code, 6-3-1 (a) (3), as amended. When it is not necessary in the decision of a case to determine the question of constitutionality of a statute this Court will not consider or determine such question. Norris v. Cabell County Court, 111 W. Va. 692, 163 S. E. 418; State v. Garner, 128 W. Va. 726, 38 S. E.2d 337; State v. Harrison, 130 W. Va. 246, 43 S. E.2d 214; State ex rel. Titus v. Hayes, Sheriff, 150 W. Va. 151, 144 S. E.2d 502.

After a public officer has rendered service such as the de jure deputy sheriffs involved in the case at bar he can not be deprived of his right to compensation for the services rendered. 16 C.J.S., Constitutional Law, §317.

For the reasons stated herein the demurrer of respondent is overruled, and the writ prayed for to compel the respondent, E. L. St. Clair, President of the County Court of McDowell County, to sign the order or warrants for the payment of services performed by the petitioners Barbara Moore, Leonard Bolt, Jackie Frederick, George Deskins, Ronnie Mathis, Roy Smith, Gerald Smith and Charles Lawson, as deputy sheriffs of McDowell County, is granted.

Writ granted.