dissenting:
Respectfully, I dissent. While. I am troubled by various aspects of the majority opinion, perhaps my disagreement may be summarized by an assertion of my belief that the Court’s decision is unwarranted by any pertinent statutes; it is lacking in a precedent among the prior decisions of this Court; it opens a broad, unrestricted avenue for abuse and for a waste of public funds by unscrupulous county officials; and it requires the county court to perform an unlawful act.
We should be mindful of the fact that the Court’s decision in this case, under the provisions of Code, 1931, 7-7-7, as amended, is applicable, not only to sheriffs, but also to clerks of county courts, circuit courts, criminal courts, common pleas courts and intermediate courts, and to the deputies, assistants and other employees of all such public officials. Apparently, by reason of the provisions of Code, 1931, 11-2-2, as amended, the Court’s decision in this case applies also in all respects to county assessors and to their deputies, assistants and other employees. The decision, therefore, is one of serious import to county courts as fiscal bodies and to taxpayers of all counties of tire state.
I am unable to discern from the majority opinion whether the determinative factor in the decision is the alleged fact “that the deputies performed additional duties because of the absence of a former deputy” as stated in the Court’s opinion, or whether, on the other hand, the decision is predicated on a legal proposition that the sheriff had an absolute, unrestricted right to require the county court to accede to his demand that a balance alleged to be remaining at the end of the fiscal year in the fund budgeted for payment of salaries of the sheriff’s deputies, assistants and other employees be distributed in the ensuing fiscal year among such persons, in such amounts and proportions as might be determined by the sheriff.
Assuming that the Court has predicated its decision, in whole or in part, on the alleged fact “that the deputies performed additional duties because of the absence of a former *549deputy,” I deem it pertinent to note that the Court has required the county court to pay “additional compensation” or a “supplemental salary” for the month of June, 1970, to each of four jail employees as follows:
Albert Ball, Chief Jailer, $ 430.00
Hansford Jarrell, Assistant Jailer, 430.00
Clarence Weaver, Assistant Jailer, 430.00
Harold Ray Hall, Cook at Jail, 430.00
Total $1720.00
So far as I can determine, it is not explained at any place in the record how “the absence of a former deputy” could have placed any additional duties or burden on the four jail employees named immediately above. In fact, it does not appear in what manner, at what time or to what extent the sheriff’s deputies, assistants or other employees were required to assume additional burdens or to perform additional services except from the following meager, vague allegation contained in the mandamus petition: “This was not considered a bonus, but due to being without a deputy for several months, said supplement being derived from the absence of a field deputy and office deputy, which placed more work on persons set forth in Document marked Exhibit ‘A’.” In this connection, I regard as pertinent the following undenied allegation of the answer to the mandamus petition:
“* * * that as of July 1, 1970, of the amount of $3,000.00 budgeted to the Sheriff’s Office of said County for extra help nothing remained and this particular account was overdrawn and over-spent in the amount of $3,016.50, being that amount ‘in the red’; * *
It is not made clear whether any need for extra help was caused by “the absence of a former deputy” or otherwise. It does not appear from any part of the record, so far as I can discern, that any undue burden was placed on anybody because of the absence of any deputy during the month of June, 1970, and yet the Court has directed the county court to pay additional compensation to eleven persons after their several *550salaries for that month had been regularly and fully paid to them by the county court on June 24, 1970.
Following is a list of the deputies, assistants and other employees showing the monthly compensation paid to each for the month of June, 1970, and, in parentheses, the additional monthly compensation demanded of the county court for the same month:
Irene Wilhoit, Chief Office Deputy, $475 ($430)
Eleanor G. Nelson, Office Deputy, $430 ($100)
Boyd Jones, Field Deputy, $483 ($430)
John Thompson, Field Deputy, $483 ($430)
Bethel Miller, Field Deputy, $483 ($430)
Ralph Williams, Field Deputy, $483 ($430)
Sidney Barker, Field Deputy, $483 ($430)
Albert Ball, Chief Jailer, $475 ($430)
Hansford Jarrell, Assistant Jailer, $430 ($430)
Clarence Weaver, Assistant Jailer, $430 ($430)
Harold Ray Hall, Cook at Jail, $325 ($430)
The Court’s opinion contains the following statement: “There is nothing in the pertinent statutes which precludes the sheriff from granting a raise to his employees or from making a payment such as that here requested, so long as he does not exceed the amount approved by the county court.” (Italics supplied.) In my opinion, the authority of the sheriff in relation to expenditure of public funds of the county must arise from an affirmative statutory authorization, and not merely from absence of a statutory negation or prohibition of that authority. I find no language in Code, 1931, 7-7-7, as amended, which affirmatively authorizes, either expressly or by reasonable implication, the unusual action of the sheriff in this case.
A portion of the statute herein involved requires the sheriff to prepare and file with the county court a detailed statement of the probable amount necessary “to be expended” for his deputies, assistants and other employees during “the following fiscal year.” The county court is required by the statute to consider and act upon such budgetary proposal “not later *551than March twenty-eighth.” The statute further requires the sheriff to appoint and to employ such deputies, assistants and other employees as may be necessary, to “fix their compensation,” and file with the clerk of the county court a statement in writing showing such action, setting forth the name of each deputy, assistant and employee, the time for which employed “and the monthly compensation.” Presumably all such provisions were complied with in this case. I find in the statute no basis of authority in the sheriff, in a retroactive manner, to fix additional monthly compensation for services previously rendered.
Each deputy, assistant and other employee involved in this case was properly paid “the monthly compensation” duly fixed and prescribed for the entire period of the ensuing fiscal year, including the specified “monthly compensation” for the month of June, 1970, the last month of the fiscal year in question. Such salaries having been duly and regularly paid and received for the entire fiscal year, I find no semblance of any statutory authority for the sheriff thereafter to pay any additional “monthly compensation” to any of his deputies, assistants or other employees; and I find no statutory duty or authority on part of the county court to pay such additional “monthly compensation,” particularly inasmuch as the record discloses that the county court had no remaining funds for the 1969-70 fiscal year from which to pay such additional compensation.
It seems clear to me that Code, 1931, 7-7-7, as amended, clearly contemplates future rendition of services by deputies, assistants and other employees of a sheriff on the basis of the “monthly compensation” previously fixed by the sheriff in the manner prescribed by the statute.
The respondents’ answer to the mandamus petition alleges that the county court met in an adjourned session on June 26, 1970, at nine o’clock a.m. and adjourned at twelve o’clock noon; that at 1:56 p.m. of that day, the sheriff presented to Cledith Halstead, one of the respondents in this case, the request in writing for additional compensation and that the sheriff appeared before the county court at a regular meeting *552held on July 1, 1970, and that the “supplemental payroll was filed with said Court on July 1, 1970, and not before.” It is clear that the request was not presented to the county court as such until July 1, 1970.
The county court was not required to adopt the amount proposed by the sheriff to be expended for the salaries of his deputies, assistants and other employees for the 1969-70 fiscal year. State ex rel. Canterbury v. The County Court of Wayne County, 151 W.Va. 1013, 158 S.E.2d 151. However, the county court apparently did adopt the aggregate amount suggested by the sheriff as a part of the budget for the fiscal year in question. I agree that the sheriff had the right, in conformity with pertinent statutory provisions, to fix the amount of the monthly compensation to be paid during the ensuing fiscal year to each of his deputies, assistants and other employees. The correctness of that legal proposition is not questioned by the respondents and is not involved in a proper decision of this case.
The case of State ex rel. Henson v. County Court of Putnam County, 93 W.Va. 316, 116 S.E. 704, is in no sense a precedent for the validity of the unusual situation involved in this case. The action demanded by the sheriff and required by the Court in this case is, in my opinion, without precedent among all prior decisions of this Court.
In the Henson case to which I have referred and which is cited in the Court’s opinion, the clerk of the county court, pursuant to the provisions of Barnes’ Code, 1923, Chapter 137, Section 40, had filed with the county court, prior to December 1, 1922, an estimate of the amount necessary to compensate his deputies and assistants for the ensuing “calendar year.” In other respects, the provisions of that statute were similar to the provisions of the statute involved in the present case. Tire county court, for reasons stated in the opinion in the Henson case, refused to pay the salaries fixed by the clerk for his deputies. By mandamus, the clerk sought to require the county court to pay such salaries for the month of January, 1923, and for subsequent months of that calendar year. This Court granted the relief prayed for in relation to the month *553of January but declined to grant relief for subsequent months in relation to which salaries had not accrued. A pertinent portion of the fifth point of the syllabus in the Henson case is as follows: “Where * * * salaries have accrued to such deputies for their services which the county court refuses to pay, mandamus will lie to compel the county court to issue drafts for the payment thereof.” In the instant case, as has been stated previously, the county court paid regularly and in full all the salaries which had been fixed by the sheriff according to law and which had accrued for the entire fiscal year.
It is alleged by the respondents in their answer, and it is undenied, that nothing remained in the general levy fund of the county on July 1, 1970, the date of the commencement of a new fiscal year. The Court in its opinion treats this fact as one of no moment because of the alleged fact that the amount allowed in the 1969-70 budget for operation of the sheriffs office had not been fully exhausted. It is my opinion that the county court, in the circumstances, was prohibited by Code, 1931, 11-8-26, as amended, from paying the sums demanded by the sheriff when no funds remained for that purpose at the end of the fiscal year. That statute provides that a local fiscal body shall not expend money or incur obligations:
(1) In an unauthorized manner;
(2) For an unauthorized purpose;
(3) In excess of the amount allocated to the fund in the levy order;
(4) In excess of funds available for current expenses.
Section 27 of the same chapter and article of the Code provides that any “indebtedness created, contract made, or order or draft issued in violation” of Section 26, quoted immediately above, “shall be void.” Section 28 provides that, whenever a fiscal body shall expend money in violation of the provisions of Section 26, “suit shall be instituted by the prosecuting attorney * * * or the attorney general * * * to recover the money expended or to cancel the obligation, or both.” Section *55429 provides, in substance, that commissioners of a county court may be held personally liable, jointly and severally, for money expended in violation of the statute in question; and Section 31 provides for a criminal penalty, of fine or imprisonment or both, for violation of that statutory inhibition.
It appears obvious to me that this Court has required the county court to pay, from funds of the 1970-71 fiscal year, obligations which are alleged to have been incurred during the preceding fiscal year. There is no other source available for payment of the salaries the Court has directed the county court to pay. “A public officer cannot by mandamus be compelled to perform an unlawful act.” State ex rel. Henson v. Gore, 151 W.Va. 97, pt. 3 syl., 150 S.E.2d 575.
The Court’s decision in this case is authority for the proposition that if, at the end of a fiscal year, a sheriff, or any other officer similarly situated, has not fully expended the sum allowed by the county court in the budget for that fiscal year for payment of the monthly compensation of the deputies, assistants and other employees of such a county officer, he has an absolute right to distribute all of such remaining balance, however great, among his deputies, assistants and other employees, in such proportions as he in his discretion may determine or choose; that he may do this in a retroactive manner on the basis of services alleged to have been performed theretofore; that the absolute right of such county officer to do so cannot be controlled or limited by the county court, by a circuit court or by this Court, in any manner or to any extent; and that a court by mandamus may require the county court to pay all such sums, even though all funds available for that purpose for the fiscal year have been completely exhausted.
For reasons I have undertaken to express, I respectfully dissent.
I am authorized to state that Judge Browning concurs in the views expressed in this dissenting opinion.