dissenting:
I dissent from the conclusion reached in this proceeding. I do not think that the pleadings and proof justify the award of a peremptory writ of mandamus.
Of course, if the County Court of Raleigh County is legally indebted to the Sheriff of that county, they may be, and should be, compelled by proper procedure, to pay that indebtedness. But, I think that the extraordinary remedy of mandamus is not the proper way to enforce payment.
The syllabus holds that it is a mandatory duty upon the county court of the county to allow the actual and necessary expenses incurred or expended by a Sheriff and his deputies in the performance of duties set forth *558therein. But the syllabus leaves in the realm of uncertainty, the question who shall determine whether expenses are actual and necessary. I think that duty, by the very terms of the statute and long continued course of administration in this state, devolves upon the county court as a matter of discretion. Of course, after the questions are once determined, it becomes the duty of the county court to pay the sum so determined.
A county court may be sued in an ordinary action at law. The county court “may sue and be sued, plead and be impleaded, and contract and be contracted with”. Code, 7-1-1. A prerequisite for an action or suit against the county court is set forth in the following statute: “No suit shall be brought against a county court for any demand for a specified sum of money founded on contract, except an order on the county treasury, until such demand has been presented to such court and been disallowed by it in whole or in part. But if the court neglect or refuse to act on such demand by the close of the first session after that at which it is so presented, or of the second session after it is filed with the clerk for presentation, it shall be deemed to have been duly presented ánd disallowed.” Code, 7-5-8.
It also follows from the provisions of Code, 7-5-9, to the effect that a judgment may be obtained against a county court on an open claim or demand.
This Court has allowed a recovery in a proceeding by notice of motion for judgment. Coal & Coke Co. v. County Court, 76 W. Va. 610, 87 S. E. 258. Implicit in the opinion of this Court in Edmondson v. County Court, 112 W. Va. 601, 166 S. E. 117, is the principle that a county court may be liable for negligence and recovery had. I think it is well sustained by authority that in a proper instance, a county court may be sued for money due on contract and judgment rendered. But a county court, being a governmental body, after judgment, is once rendered or a county order duly issued, no execution will issue.
In the case of Culvert Co. v. County Court, 114 W. Va. *559138, 171 S. E. 110, a person holding a judgment against the county court may have a mandamus to enforce the collection of judgment, requiring a special levy to be made. A similar rule applies to collection of a county order theretofore issued by a county court. Mandamus will lie to compel the payment of such order. But in the case of Culvert Co. v. County Court, supra, another principle is stated: “Mandamus will not lie. as a rule, to enforce payment of an open claim where there is another adequate remedy.” That principle has been established in this jurisdiction since 1830. King William Justices v. Munday, 2 Leigh 165, Virginia Reports, Annotated 290. As above stated, the remedy for the payment of a debt due from the county court is by an action at law. Code, 7-5-9, limits the remedy of mandamus to “claims which have been reduced to judgment or merged in orders.” Culvert Co. v. County Court, supra.
The claim by the Sheriff of Raleigh County, here presented, undoubtedly is an open claim, he demanding certain amounts and the county court of that county refusing to pay them. I think that a composite definition of an open claim in the sense here discussed is: An assertion of the right to a sum of money not determined, settled or fixed by the person against whom the claim is made. See Black’s Law Dictionary, pages 313, 1242. The holding in Culvert Co. v. County Court, supra, seems to me to clearly preclude the allowance of a peremptory writ of mandamus in this proceeding, when proper regard is paid to the rule of stare decisis, and the factual situation shown by this record.
An examination of the opinion of this Court in Miller v. County Court, 34 W. Va. 285, 12 S. E. 702, discloses a startling similarity to the facts shown in this proceeding. The Sheriff of Tucker County , presented a claim for various expenses incurred by him and for commission allegedly due which the county court declined to pay. This Court held, on writ of error to a judgment of the Circuit Court of Tucker County, that the Circuit Court *560should have sustained a demurrer to the petition and denied the writ of mandamus. On writ of error this Court denied the writ of mandamus prayed for by the Sheriff. The statute applied by this Court in Miller v. County Court, supra, Section 34, Chapter 5, Acts of the Legislature, 1881, Regular Session, is equally imperative as Chapter 31, Acts of the Legislature, 1949, Regular Session.
It is a well known principle that mandamus is not available where another specific and adequate remedy exists. This principle of law is supported by numerous authorities. See Lawhead v. County Court, 129 W. Va. 167, 38 S. E. 2d 897; Miller v. Board, 126 W. Va. 248, 27 S. E. 2d 599; Myers v. Commissioner, 113 W. Va. 316, 167 S. E. 740; Bd. of Ed. v. Lawson, 113 W. Va. 60, 166 S. E. 696; Hall v. Staunton, 55 W. Va. 684, 47 S. E. 265; Payne v. Staunton, 55 W. Va. 202, 46 S. E. 927.
I think it is clear that the Sheriff of Raleigh County had a sufficient, adequate and specific remedy by an action on contract for the recovery of alleged amounts due him as expenses. After the claim had been reduced to judgment, or merged in an order, he then, under the statute, Code, 7-5-9, would be entitled to a writ of mandamus to enforce the payment of such judgment or order, but not before such judgment was rendered, or order issued. I think that this proceeding states a fallacious and unwarranted principle concerning the law of mandamus by awarding an extraordinary remedy to take the place of an ordinary remedy.
It is argued in effect in the Court’s opinion that it is a mandatory duty of the County Court of Raleigh County to audit the accounts of the Sheriff. I think an audit of the accounts submitted by the Sheriff in this proceeding would be difficult, if not impossible, of performance. Copies of the accounts filed by the sheriff with the county court are in the record as exhibits with the depositions taken. An examination of the accounts of the Sheriff of Raleigh County shows that they are models of uncer*561tainty and indefiniteness, leaving most everything to the imagination, except the amounts thereof. Most of the so-called items show the name of a place or person, and little else. I do not think that the Sheriff of Raleigh County has ever presented a proper itemized account to the county court of that county, as provided by Chapter 31, Section 12, Acts of the Legislature, 1949, Regular Session. A further discussion would unduly prolong this note of dissent, but a close examination and analysis of the various statements of account filed by the relator shows that it falls far short of what an itemized account should be to permit a correct audit thereof.
A suit against the county court cannot be maintained unless the account is properly presented and disallowed, wholly or in part, or the county court has neglected or refused to act thereon. Barbour v. County Court, 85 W. Va. 359, 101 S. E. 721.
The county court in my opinion, is required by Chapter 31, Article 7, Section 12, Acts of the Legislature, 1949, Regular Session, to pay only actual or necessary expenses incurred by the Sheriff in various accounts, but determination of the legality, necessity and actuality of such expense is a discretionary matter vested in the county court by statute and the constitution of this state. County courts have “ * * * superintendence and administration of the internal police and fiscal affairs of their counties * * * ”. Article VIII, Section 24, Constitution of West Virginia.
Mandamus does not lie to control the exercise of discretionary power of the county court. State v. County Court, 33 W. Va. 589, 11 S. E. 72. “Mandamus will not lie to control the exercise of the discretion of any court, * * * when the act is either judicial or quasi-judicial in its nature. * * * ” Roberts v. Paul, Judge, 50 W. Va. 528, 40 S. E. 470; Buxton v. O’Brien, 97 W. Va. 343, 125 S. E. 154; Gas Co. v. DeBerry, 130 W. Va. 418, 43 S. E. 408. I think the indefinite and weak writ of mandamus awarded in this proceeding, is based on an incorrect and *562fallacious application of principles governing the issuance of the extraordinary remedy of mandamus well established in this jurisdiction. Those principles are fully supported by reason, logic and authorities, long-accepted and acted upon by this Court.
I agree that the County Court of Raleigh County should not fix the amount of $125.00 as the maximum monthly limit of the expenses of the Sheriff and his deputies. But that is only one of the elements entering into the performance of the discretionary power conferred on a county court. The duty of auditing the Sheriff’s accounts is likewise an incidental step in the allowance or disal-lowance of' the open claim of the Sheriff for expense.
For the foregoing reasons, I would deny the writ of mandamus.