#### C. S. Wiley *v.*The County Court of Mercer County *and*Orita O. Booker *v.*The County Court of Mercer County

(Nos. 7290 and 7291)

Submitted February 23, 1932.

Decided March 1, 1932.

*Russell S. RUz,*and *A. W. Reynolds,*for relators.

*Hugh G. Woods,*for respondent.

Maxwell, Judge :

Relators are deputies of the clerk of the circuit court of Mercer County, ex-officio clerk of the criminal court of said county. For the years 1928 to 1931, inclusive, relator Wiley was paid a salary of $200.00 per month, and relator Booker $175.00. Acting under requirements of Code 1931, 7-7-7, *647tbe circuit clerk, in November, 1931, filed with tbe county court a statement of tbe proposed budget of expenditures for bis office for tbe year 1932. By this statement it was proposed to continue tbe salaries of relators on tbe existing basis. Tbe statement contains tbe endorsements of approval of tbe judges of tbe circuit and criminal courts, respectively. Tbe proposed budget was in tbe aggregate of $4,700.00, composed of tbe items $2,400.00 for deputy Wiley, $2,100.00 for deputy Booker, and $200.00 extra belp.

On tbe 15tb day of December, 1931, tbe county court entered an order reciting that “tbe County Court having this day considered said statement does hereby appropriate tbe sum of $4,230.00, being tbe sum of $4,050.00 for deputies or assistants and $180.00 for extra belp, for said year.” On tbe 23rd of January, 1932, tbe county court entered another order in which, following a recital of tbe filing of tbe statement of tbe circuit clerk in November with tbe endorsements of approval of tbe judges of tbe circuit and criminal courts, respectively, there is this pronouncement: “Tbe County Court having adopted tbe policy of reducing salaries of certain employees in tbe County Clerk’s Office, in tbe Assessor’s Office, in tbe Sheriff’s Office and in tbe Circuit Clerk’s Office, and failing to get a joint meeting with tbe Judge of tbe Circuit Court and tbe Judge of tbe Criminal Court, reduced tbe amount stated by L. T. Reynolds, Clerk of tbe Circuit and Criminal Courts, 10%, that is to say: from $4,700.00 to $4,230.00 * * For tbe month of January tbe county court caused its clerk to issue to realtor Wiley a draft on tbe county treasurer for tbe sum of $180.00, and to relator Booker a draft for 157.50. These drafts were refused.

Relators pray that tbe county court be required to continue to pay their salaries on tbe old basis of $200.00 and $175.00 per month, respectively, until the county court and tbe judges of tbe circuit and criminal courts agree and order otherwise, and for general relief.

In mandamus there must be clear legal right of the relator to have performance of tbe act of which be seeks to coerce performance, and there must be a plain duty to perform it on tbe part of tbe respondent. *Smith*v. *Road Commission,*
      *648110 W. Va. 296, 158 S. E. 163; *Reynolds*v. *Fielder,*110 W. Va. 240, 157 S. E. 597. In tbe case.at bar tbe relators do not have sneb clear legal right because, under tbe statute (Code 1931, 7-7-7), a deputy of a circuit clerk is entitled only to sucb compensation as is provided for by tbe concurrent action of tbe judges of tbe trial courts of tbe county and tbe county court. Tbe phraseology of tbe statute indicates that it was tbe legislative contemplation that in each instance there would be sucb concurrent action, but tbe fact that there is no sucb concurrence in a given case does not afford ground for mandamus by this Court to require payment of salary on basis formerly existing or on any other particular basis. This Court may, by mandamus, compel sucb officials to act, but it may not prescribe in what manner they shall act. *Buxton*v. *O’Brien,*Judge, 97 W. Va. 343, 125 S. E. 154.

Since this Court would not be warranted in requiring tbe county court of Mercer to continue to pay to tbe relators tbe salaries which they were receiving prior to 1932, we refuse tbe writ.

*Writ refused.*