I dissent in part from the judgment just rendered, as will appear from what I am now about to say.
The appellee was entitled, under paragraph (e) of section 1804 of the Code, to $5 per day each for himself and one deputy for attending the sessions of the circuit court, and since he had been paid only $3 per day for each therefor, he was entitled to the $2 per day for each here claimed by him. He was not entitled to the per diem allowances heretofore made him for the service of deputies rendered prior to the beginning of the terms of the circuit court, and should have been charged back therewith.
These extra deputies were evidently riding bailiffs, authorized by section 3311 of the Code, which reads as follows: "During the term of circuit court, the court may in its discretion by order entered on its minutes *Page 151 allow the sheriff a sufficient number of riding bailiffs at five dollars per day, to be paid by the county on allowances of the court on the issuance of a warrant therefor." Under this section, the sheriff's authority to employ riding bailiffs at the expense of the county arises when, but not until, the court has so authorized "by order entered on its minutes," and the requirement that he shall be paid therefor "on allowances of the court" is manifestly for the purpose of requiring the court to determine whether or not he has actually employed and used the bailiffs previously authorized. These riding bailiffs must be appointed in writing, as all deputy sheriffs must be, section 3310 of the Code, and are to serve only "during the term of circuit court," not before the term has begun or after it has ended.
The allowance to the sheriffs under paragraph (f) of section 1804 is not a flat sum of $250, but only such an amount as is "only commensurate with the work [done] . . . not exceeding, for each year, . . . . . . [$]250.00," which ex necessitate requires a disclosure, which is here absent from the evidence of the work done in order that it may appear what allowance is commensurate therewith. Neither does paragraph (g) of the section authorize the payment to the sheriff of a flat sum of $750, but only the payment to him of his "fees in state cases where the state fails in the prosecution or in cases of felony, in which the defendant is convicted, but is unable to pay the costs, to an amount not exceeding . . . . . . [$]750.00." The fees the sheriff has earned and failed to collect must be disclosed to the court in order for it to appear what is due him under this paragraph. His records, if kept in such form as to have enabled him to collect, if possible, his fees from the defendants in those criminal cases, would enable him easily to comply herewith. No evidence meeting the requirement of these two paragraphs of the section appears in the record. Consequently no recovery should have been awarded the appellee thereunder; but *Page 152 this defect could be met on a return of the case to the court below.
Section 203 of the Code requires the sheriff to "attend all meetings of the board of supervisors, either in person or by deputy," but section 1804 seems not to confine him to attendance in person or by deputy but to permit him to attend these meetings in person and by a deputy at the same time. I doubt whether the legislature so intended, but the statute is so written. Ita lex scripta est. The appellee was therefore entitled to recover the balance due him of $2 per day each for himself and one deputy for attending the sessions of the board of supervisors.
Section 1789 of the Code provides that: "The sheriff may be allowed for entering, returning and serving the road overseer's commission, and for services required of him by the board of supervisors for which no fees are fixed, a sum not exceeding fifty dollars a year." This allowance is not of a flat sum of $50, but is for services rendered not to exceed $50. This requires a disclosure of the services rendered in order for the court to determine what part of the $50 should be allowed therefor. There were no overseers' commissions for the appellee to serve during his term of office, and the evidence does not disclose that he rendered any "services required of him by the board of supervisors for which no fees are fixed." Consequently no allowance should have been made him by the court below therefor. The fees and prerequisites of sheriffs are such only as are authorized by a statute, and we have no statutes authorizing the repayment to them of money spent by them or their deputies for oil and gasoline used by them in automobiles when discharging their official duties. The allowances and payments heretofore made the appellee therefor by the circuit court, and paid by the county were illegal. Whether such an allowance should be made is for the legislature, and not for the courts. While authority would seem not to be necessary therefor, all of the authorities agree that illegal payments from public money made by a county to a sheriff, or other public *Page 153 officer may be recovered from him by the county. County Court v. Long, 72 W. Va. 8, 77 S.E. 328, Ann. Cas. 1915B, 808, and the long list of cases cited, in the annotation to this case in Ann. Cas. 1915B, at page 811. The court below should have charged the appellee with these allowances for gasoline and oil, and deducted the amount thereof from the judgment awarded him.
It follows from what I have said that I am of the opinion that the judgment of the court should be affirmed as to some of the separate items composing it, and reversed and remanded as to the others.