This proceeding is the aftermath of Walden v. Commissioner, decided by this court September 27, 1932, and reported *Page 308 in 166 S.E. 6. Relator now seeks mandamus to compel respondent to pay a portion of an award in a lump sum.
Relator was injured February 12, 1929, while in the employment of a subscriber to the Workmen's Compensation Fund. He was allowed immediate temporary disability payments for 77-1/7 weeks, which expired in September, 1930. Following this, the Commissioner conducted an investigation to determine the amount relator was entitled to as a permanent award. The investigation terminated on November 25, 1932, in the allowance of a 50% partial permanent award, or 200 weeks at $16.00 per week. Credit for the 77-1/7 weeks, already paid, was given, and weekly payments for the remainder of 122-6/7 weeks was fixed to begin on September 27, 1932. Relator alleges that he was in such destitute circumstances during the investigation that his poverty caused him to commit "an indiscretion" for which he now languishes in jail; that he is still destitute, and that it is an abuse of discretion for the commissioner to dole out his award in weekly installments when payments should have been made to him continuously following September, 1930. He prays that what should have been paid him from September, 1930, to September 27, 1932, be paid him now in a lump sum.
The commissioner answers that relator has yet several months of his jail sentence to serve, and "that his object in refusing to pay said compensation in a lump sum was solely to prevent dissipation thereof and to keep it intact so that it might be available to petitioner in the future as a supplement to his impaired earning power by reason of his said injury."
Code 1931, 23-4-18, Code 1923, chapter 15P, section 42, provides: "Payments may be made in such periodical installments as may seem best to the commissioner in each case." Mandamus does not lie to coerce an administrative officer in the performance of a discretionary act such as the statute confers upon the commissioner in this instance, except in case of caprice, passion, some ulterior motive or misapprehension of law. State v. Lane, 89 W. Va. 744, 110 S.E. 180. The circumstances pleaded herein do not bring the commissioner within the exception. See generally Ferrel v. Commissioner,108 W. Va. 477, 151 S.E. 706. Admit for the sake of argument (merely) that a lump sum for back payments *Page 309 did become due the relator on November 25, 1932; nevertheless, under the statute, the commissioner had the express right to pay that lump sum "in such periodical installments" as seemed best to him.
The writ is accordingly refused.
Refused.