Alexander v. Ritchie
| Decision Date | 01 June 1949 |
| Docket Number | 10150. |
| Citation | 53 S.E.2d 735,132 W.Va. 865 |
| Parties | ALEXANDER et al. v. RITCHIE et al. |
| Court | West Virginia Supreme Court |
Submitted May 3, 1949.
Syllabus by the Court.
1. A member of a board of education who becomes indirectly and pecuniarily interested in a contract with the board over 'which, as such member * * * he may have any voice influence or control' shall be removed from office as a member of said board. Code, 61-10-15 and Code, 6-6-7.
2. 'A member of a board of education who, as such, votes for the payment of the purchase price of goods known to have been sold to the board by another member thereof in violation of Code, 61-10-15, is guilty of official misconduct and subject to removal from office under Code 6-6-7.' Hunt v. Allen, W.Va., 53 S.E.2d 509, Pt. 2, Syl. The same principle applies to payment for services rendered in like circumstances.
Wm Bruce Hoff, Parkersburg, for plaintiffs in error.
J. B. Heilmann, Ripley, Harper & Baker, Spencer, for defendants in error.
This proceeding, instituted August 30, 1948, pursuant to the provisions of Code, 6-6-7, in the Circuit Court of Jackson County, West Virginia, by W. R. Alexander, and nine other persons, hereinafter referred to as 'petitioners', all of whom are voters of said Jackson County, has for its purpose the removal from office of T. E. Rymer, W. S. Ritchie, Nelson Critchfield, George Walker and F. D. Austin, members of and constituting The Board of Education of the County of Jackson, said members hereinafter being referred to individually as 'defendants' and collectively as the 'board'. The Circuit Court of Jackson County, by order made January 24, 1949, dismissed the petition on the ground that petitioners had failed to sustain the charges contained therein against defendants. Petitioners prosecute this writ of error.
By the same order the court, without objection, held that this proceeding, as to defendants, T. E. Rymer and George Walker, had abated, their terms of office having expired December 31, 1948. Hence, we are not concerned with the rights of those two defendants.
In effect, the petitioners charge that the defendant, W. S. Ritchie, should be removed from office 'for official misconduct', as provided in Code, 6-6-5, in that he violated the provisions of Code, 61-10-15, making it a misdemeanor and '* * * unlawful for * * * any member of any county or district board * * * to be or become directly or indirectly, pecuniarily interested in the proceeds of any contract or service, * * * which as such member, * * * he may have any voice, influence or control. * * *'. As to the other defendants, the petitioners, in effect, charge official misconduct in that they each 'wilfully, knowingly and unlawfully approved the aforesaid misdemeanors and statutory violations of the said defendant, W. S. Ritchie' by approving, and ordering payment for the goods and services furnished the board pursuant to the alleged unlawful contracts.
The alleged official misconduct arises from certain transactions between Boso & Ritchie, Inc., and the board. Boso and Ritchie, Inc., is a corporation, organized about 1938 to take over the firm name (to which was added the abbreviation 'Inc.') and assets of a partnership which, for a number of years prior thereto, had been engaged in a general contracting business. The concern is now, and always has been, primarily engaged in heavy road construction work. It has prospered to the extent that for many years it has been considered one of this State's outstanding road construction general contractors, and is known, among residents of Jackson County, as one of that county's largest business concerns and employers.
Although a man named Ira Boso had been a partner in the firm, since Boso's death in 1935, and since the concern was incorporated, it has been owned entirely by the Ritchie family. The defendant, W. S. Ritchie, who, in his own name or in the names of his children, owns 525 shares of a total of 1,150 shares of the outstanding stock of the corporation, is vice president of the company, drawing a salary of from $5,000 to $25,000 a year, depending only on his personal needs. The remaining outstanding shares of the corporation are owned by defendant's brother, R. E. Ritchie, and his sister, G. M. Ritchie, who is secretary-treasurer of the company. These three constitute the board of directors of Boso & Ritchie, Inc.
The undisputed evidence in the record, disclosed by the testimony of eleven witnesses, is to the effect that it is a matter of common knowledge that defendant, W. S. Ritchie, is one of the principal owners of Boso & Ritchie, Inc. All but one of these witnesses testified that newspaper articles involving W. S. Ritchie generally linked his name with the corporation. Although they deny that they knew W. S. Ritchie was a stockholder in Boso & Ritchie, Inc., each of the other defendants herein admits that he knew that defendant, W. S. Ritchie, was employed by the company. The defendant, T. E. Rymer, also admits that he had known that W. S. Ritchie had been a member of the former partnership of Boso & Ritchie.
About four years prior to the institution of this proceeding, Boso & Ritchie, Inc., acquired a hardware store in Ravenswood which they have since owned and operated as 'Boso & Ritchie, Inc., Farm Supply Department', to be designated hereinafter as 'hardware store'.
The specific contracts, on which the charges against defendants are predicated, fall generally into two classifications. The first classification involves a certain contract entered into between the board and Boso & Ritchie, Inc., on March 26, 1948, providing for the grading of the athletic field at Ripley High School, on which contract the board approved payments, June 16, 1948, amounting to $1,465.38, or slightly over 7.11% of the total of all expenditures made by the board during that fiscal year, excluding the salaries of teachers and other personnel regularly employed by the board.
The evidence discloses that for some time prior to March, 1948, various residents of Ripley had requested that the board make certain improvements on the high school athletic field of that town. Several of these people had formed an organization called a 'Boosters Club', which undertook to accomplish certain of the desired improvements. At the insistence of the 'Boosters Club', R. P. Kiser, the county superintendent of schools, was prevailed upon to ask W. S. Ritchie if Boso & Ritchie, Inc., would undertake the grading of the field. Defendant, W. S. Ritchie, in behalf of the company, proposed to Kiser that Boso & Ritchie, Inc., would do so at cost to the company. Without revealing W. S. Ritchie, individually, as the source of the offer, Kiser presented the offer of Boso & Ritchie, Inc., to the board on March 26, 1948. The offer was unanimously accepted by the board, all members being present, and on June 16, 1948, the invoice of Boso & Ritchie, Inc., for the costs of the project was unanimously approved for payment. It should here be noted, however, that, through an oversight, Boso & Ritchie, Inc., had failed to include in its statement at least $400 in costs to it. It is not disputed that normally the cost of the project would have been between $5,000 and $7,000, as compared with the sum of $1,465.38 paid and the $400 not paid.
The second classification involves sales by the hardware store to the board as follows: for the fiscal year ending June 30, 1945, supplies totalling $27.04; for the fiscal year ending June 30, 1946, supplies totalling $104.80; for the fiscal year ending June 30, 1947, supplies totalling $871.42; and for the fiscal year ending June 30, 1948, supplies totalling $277.32. The sales so made constitute, respectively, .135%, .471% 4.308% and 1.34% of the total expenditures made by the board, excluding the salaries of teachers and other persons regularly employed by the board, during the respective fiscal years.
The supplies furnished by the hardware store to the board were all furnished intermittently on small separate orders. Although a few of the supplies were bought and used by a teacher, by the vehicle repair department of the board, and by one of the board's janitors, by far the greater portion consisted of supplies for the maintenance of buildings and for the erection of a temporary two-room addition to one of the board's schools. The supplies for the maintenance and erection of buildings were purchased principally by W. H. Mitchell, superintendent in charge of the repair and maintenance of buildings, who was instructed to purchase his supplies wherever available, and thereafter to submit to Kiser the invoices for such purchases, from which payment orders were prepared for submission to the board.
In some instances, the payment orders were approved by the president and secretary of the board, without submission to the board in session, the board having previously delegated to said president and secretary the power to approve 'routine' purchases. In most instances, however, the payment orders were consolidated into a single list on which was shown only the names of the various creditors of the board, and the total of each creditor's claim....
To continue reading
Request your trial