Arbogast v. Shields
| Decision Date | 15 March 1941 |
| Docket Number | 9166. |
| Citation | 14 S.E.2d 4,123 W.Va. 167 |
| Parties | ARBOGAST et al. v. SHIELDS. |
| Court | West Virginia Supreme Court |
Rehearing Denied April 21, 1941.
Syllabus by the Court.
Stathers, Stathers & Cantrall, and Lawrence R Lynch, all of Clarksburg, for plaintiff in error.
W Taylor George and W. Taylor George, Jr., both of Philippi for defendants in error.
Patrick H. Shields prosecutes this writ of error to a judgment of the Circuit Court of Harrison County, a visiting judge sitting, by which he was removed from the office of member of the Water Board of the City of Clarksburg, upon charges contained in a petition, filed against him by Audia Arbogast and others.
The City of Clarksburg operates under a charter enacted by the Legislature in 1921, being Chapter 6, Municipal Charters, of the Acts of that year, which provides for a water board of three members, one of which shall be elected every two years, and whose term shall be six years.
The general powers of the water board are set out in great detail in section 41 of the act, and may be summarized as the management of the water works of the City of Clarksburg, the plant of which is to be constructed, operated and maintained solely from the income from the sale of water.
The respondent, Patrick H. Shields, was elected a member of the water board for the six-year term beginning the 1st day of May, 1935, and regularly qualified, and has ever since been acting as such. The other members of the board were J. Ransel Romine, whose term began May 1, 1937, and March L. Pritchard, whose present term began May 1, 1939.
The charges against Shields were two: First, that at a meeting of the said board on the 3d day of May, 1939, Shields and Pritchard voted to employ Pritchard as "construction foreman" under the board, at a salary of $3,120 per year, the third member of the board, Romine, voting against the appointment, Pritchard then being ineligible to that appointment by reason of his membership on the board; that Shields subsequently retained, or aided in retaining, Pritchard in that position after his disqualification was made to appear; and that Shields wasted and misappropriated the funds of the water board by joining with Pritchard in signing vouchers for the latter's salary as such foreman. Second, it is charged that Shields solicited and obtained from the board contracts for fire insurance covering property of the board, and certain accident and public liability insurance covering motor vehicles operated by the board, for which he received for his own use and benefit large sums of public money.
Shields answered, admitting most of the facts set out in the petition, but showing that Pritchard was first elected as member of the water board in 1918, and that he had been subsequently elected in 1921, 1927, 1933 and 1939, and that in 1919, he was appointed by the then existing water board to the position of construction foreman, and had held this position continuously until his resignation in December, 1939, not under appointment by the board, but by virtue of the terms of section 38 of said charter, which provides that: "The water board of the city of Clarksburg in existence when this act goes into effect shall be continued, and the administrative officers and employees of the water board shall continue in their respective offices and employments until removed and superseded by the water board."
The answer also sets forth that the policies in question were issued, not by Shields individually, but by the Shields Insurance Company, Inc., a corporation, which had been in business as an insurance agency since 1925, and had outstanding only nineteen shares of stock, three of which were owned by himself and sixteen by his wife; that he was general manager of this corporation at a fixed salary, and also its secretary and treasurer; that the premiums charged on all fire policies were at the standard rate, while the automobile liability policies were issued at a rate approximately twenty per cent below standard rates; and that all premiums were paid, not to him, but to said corporation.
Evidence was taken by both the petitioners and the respondent. The court found against the respondent on both branches of the case, and ordered his removal from office.
The first charge appears to have been brought under section 83 of the charter, which provides that: "Any elective officer may be removed at any time by the circuit court of Harrison county, West Virginia, for any ground or cause for which a member of the county court of the county or other county officer may be removed."
Section 7, article 6, chapter 6 of the Code, provides that: "Any person holding any county, magisterial district, independent school district, or municipal office *** may be removed by the circuit court of the county wherein such officer or person resides, or the judge of such court in vacation, on any of the grounds, or for any of the causes, for which a state officer may be removed under section five of this article, or for any of the causes or on any of the grounds provided by any other statute."
Section 5 of said article provides that: "Any state officer holding any elective office (except the governor, any judge, or a member of the legislature of this State) may be removed from office, by the governor, in the manner provided in the following section: (a) when disqualified from holding the office under any provision of the Constitution of this State, or any law now in force, or which may hereafter be enacted, whether such disqualification arose before or after his induction into office; (b) for official misconduct, malfeasance in office, incompetence, neglect of duty, or gross immorality."
Section 1 of the same article provides:
The second charge against Shields is obviously brought under section 12 of the charter, which reads as follows: "Any officer of the city who shall become or be directly or indirectly interested in any contract or in the profits to be derived therefrom with the municipality shall forthwith forfeit his office; and in addition thereto, any such contract shall be void and unenforcible against the city; and the acceptance by any officer of any interest in such contract or of any gift or gratuity from any person, firm or corporation dealing with the city which might influence the officer in the discharge of any duty shall disqualify the person forever from holding any office or employment in the government of the city of Clarksburg; and in addition, such person shall be subject to criminal prosecution under any ordinances of the city or laws of the state of West Virginia."
We are clearly of the opinion that the acts charged against the respondent constitute sufficient grounds for his removal from office, and that if any of the separate and distinct charges are sustained by the evidence, his removal must be affirmed.
It is very plain that Pritchard, a member of the water board of the City of Clarksburg, chosen by the electorate, was ineligible for appointment to any office or "position" by said board. No officer with power to appoint to another office or position is permitted to appoint himself. "It is contrary to the public policy to permit an officer, having the power to appoint to an office, to exercise that power in his own interest by appointing himself." Mechem's Public Offices and Officers, sec 112. Consult 2 McQuillin on Municipal Corporations, 2d Ed., sec. 477; Throop on Public Officers, sec. 120. And no board consisting of more than one officer can appoint one of its members to another office or position. The common conscience of mankind revolts at the idea that a public officer should confer upon himself the power or emoluments of an additional office, or that a group of officers holding the power of appointment should confer such a position or office upon one of their number. Throop on Public Officers, sec. 610; ...
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