dissenting:
*127I am unable to find in the pertinent statute, Code, 62-12-5, intent on the part of the Legislature to place in the county courts of the respective counties the power to determine when circuit courts and other courts “actively exercising jurisdiction in criminal caáes”, may need, or appoint, probation officers. The statute, in my view, un-qualifiedly authorizes the courts exercising criminal jurisdiction to appoint such officers and, mandatoriiy, requires the county courts to make provision for payment of salaries and expenses of such officers, within the minimum and maximum limits expressly fixed by the statute.
The wording of. the statute is clear and unequivocal, expressly providing that a court exercising criminal jurisdiction “is authorized to appoint a court or county probation officer * * * to serve during the pleasure of the appointing judge”. The statute does not limit the power so granted, or authorize the county court to approve, veto, control or nullify such an appointment. The statute does provide that the appointing judge shall obtain approval of the county court as to “the expenses to be incurred and the salary” to be paid. But the county court is expressly required to provide for such payment within the minim/üm and maximum limits expressly fixed by the statute. The evident purpose of the provision is to inform the county court of the proposed appointment and of facts necessary to be considered by the county court in the making of the estimates, levy and appropriations for the ensuing fiscal year. Had the purpose of the provision been to place control of such an appointment completely within the discretion of the county courts, would not the Legislature have said so in so many words, and would it have fixed minimum and maximum limits as to the amount of salaries to be paid such officers, or would it have provided that the county courts “shall provide adequate office space, equipment and supplies” for such probation officers ? Does it not seem strange that the Legislature would vest control in the county courts over the appointment or continuance of probation officers, instead of in the courts having jurisdiction of matters relating to *128probation? A careful reading of the statute convinces me that the Legislature intended and designed the statute so as to vest the sole power of appointment in the courts having jurisdiction over convicted criminals. The county courts would probably be the last to desire control of probationers, or the duty or responsibility of selecting probation officers.
There appears no question as to the right or power of the Legislature to authorize a court having and exercising criminal jurisdiction to appoint a probation officer. See Locke v. County Court of Raleigh County, 111 W. Va. 156, 161 S. E. 6; State ex rel. Hall v. County Court of Monongalia County, 82 W. Va. 564, 96 S. E. 966. The Legislature, of course, could withdraw the power and terminate the office at its discretion. Neither can there be any doubt as to the power of the Legislature to impose on county courts mandatory duties, not judicial in nature. “Expenditures by a county court, from the general county fund, necessary to administer constitutionally required functions of county government, are mandatory, and take precedence over those required for general relief.” Point 2, Syllabus, Kenny v. County Court of Webster County, 124 W. Va. 519, 21 S. E. 2d 385. See State ex rel. Richardson v. County Court of Kanawha County, 138 W. Va. 885, 78 S. E. 2d 569; State ex rel. Ward v. County Court of Raleigh County, 138 W. Va. 551, 76 S. E. 2d 579; State Road Commission v. County Court of Kanawha County, 112 W. Va. 98, 163 S. E. 815; State ex rel. Sprague v. County Court of Greenbrier County, 93 W. Va. 481, 117 S. E. 135; Dillon v. County Court of Braxton County, 60 W. Va. 339, 55 S. E. 382.
The majority bases its holding principally upon the ground that a county court having constitutional powers to administer the fiscal affairs of its county must be accorded discretion in such matters. There can be no doubt that a county court has very wide discretion in many matters falling within its responsibilities, but “this Court has on many occasions given its approval to legislative supervision of the fiscal affairs of county governments”, *129as the majority admits in its opinion, citing a number of cases so holding. Thus, no constitutional question is here actually involved. The controlling question is simply whether the pertinent statute, Code, 62-12-5, imposes a mandatory duty on the county court.
Neither is there any question as to the making of any contract which would “invade the revenue for a subsequent year”. If it was the mandatory duty of the county court to include within the levy a sum for the salary of petitioner, it should not be permitted to escape that mandate of the Legislature. Neither have the several constitutional and statutory provisions limiting the power of the county courts as to matters relating to the levy or expenditures of moneys any pertinency to the controlling question involved here. The county court must, of course, operate within the limitations of those provisions. The simple answer is that those expenditures which are made mandatory must be paid first, and, if necessary, those expenditures not made mandatory reduced or eliminated, as pointed out in Kenny v. County Court of Webster County, supra.
Even though the pertinent statute be construed so as to require a court exercising criminal jurisdiction to confer with the county court before the appointment of a probation officer concerning matters relating to the amount of salary and expenses, the writ prayed for should issue in this case. The Criminal Court Judge of McDowell County did, as is admitted, confer with the county court of that county before the original appointment, and the county court actually paid the salary and expenses of petitioner from the date of his appointment, October 16, 1952, until July 1, 1954. Yet in the face of the statute, which expressly provides that the probation officer appointed may “serve during the pleasure of the appointing judge”, the majority permits the county court to terminate the office of petitioner and to deny the Criminal Court of McDowell County the right to the services of a probation officer. Such a holding not only does violence to the language of the statute, it affects adversely the *130probation system of every court exercising criminal jurisdiction in West Virginia. Will such courts in the future be successful in persuading competent probation officers to accept employment, knowing when employed that their services may be terminated at the end of the fiscal year? The difficulty heretofore had in obtaining trained and experienced probation officers is commoii knowledge. In the future, will the probation officers serving in the courts exercising criminal jurisdiction feel or be under a bounded duty to the county courts, as well as to the courts having duties and responsibilties relating to probation of persons convicted of crimes? The effect of the majority holding, as I view it, is simply to empower the county courts to require all supervision of probationers to be done by the sheriffs of the respective counties, the very practice the Legislature attempted to avoid, and the duties of which the sheriffs of the several counties would, no doubt, willingly be relieved.
Being of the views indicated, I respectively dissent. I would issue the writ.