City of Fairmont v. Hawkins

• Decision Date: 22 June 1983
• Docket Number: No. 15678,15678
• Citation: City of Fairmont v. Hawkins, 304 S.E.2d 824, 172 W.Va. 240 (W. Va. 1983)
• Court: West Virginia Supreme Court
• Parties: CITY OF FAIRMONT, W.Va., etc. v. William M. HAWKINS, and USF & G Co.

Page 824

304 S.E.2d 824

172 W.Va. 240

CITY OF FAIRMONT, W.Va., etc. v. William M. HAWKINS, and USF & G Co.

No. 15678.

Supreme Court of Appeals of West Virginia.

June 22, 1983.

Syllabus by the Court

1. Our general municipal statutes authorize a municipality to compromise lawful claims presented or filed against it.

2. In the absence of some contrary provision, the power to compromise a claim is lodged with the legislative branch of the municipality and, therefore, a mayor is not empowered to compromise claims.

3. "Ordinarily a municipality acts only through its assembled council, whose will can be expressed only by a vote embodied in some distinct and definite form." Syllabus Point 4, Ray v. City of Huntington, 81 W.Va. 607, 95 S.E. 23 (1918).

4. Where a specific statute or ordinance exists prescribing how official acts should be done, the statutory mandate may not be circumvented by permitting the public official to show that in the past the required statutory procedure has been ignored.

5. "Where the duties imposed upon a public officer are positive and ministerial only and involve no discretion on his part, he is liable to any one injured by his nonperformance or his negligent performance thereof, and this without regard to his motive or any question involving corruption in office; and whether he has properly discharged his duties in the premises is generally a question of fact for the jury on the evidence adduced before them." Syllabus Point 4, Clark v. Kelly, 101 W.Va. 650, 133 S.E. 365 (1926).

George R. Higinbotham, Higinbotham & Higinbotham, Fairmont, for appellant.

Alfred J. Lemley, Furbee, Amos, Webb & Critchfield, Fairmont, for Wm. M. Hawkins.

Herschel Rose, Rose Southern & Padden, Fairmont, for USF & G Co.

MILLER, Justice:

In this appeal from a final judgment rendered against the appellant, City of Fairmont, we are asked to determine whether a mayor of a municipality has the authority to settle a claim on behalf of a municipality. We are also asked to determine if a mayor can be held personally liable for the payment of the claim.

During appellee Mayor William M. Hawkins' term of office in May, 1975, a property damage suit was brought by Charles Glaspell against the City of Fairmont for water damage to his home. Hawkins asserted that he made a personal investigation of the damage and found it to exceed $10,760. The City disputed this figure because of a letter written by Glaspell's attorney wherein he indicated that "[t]he actual loss is something less than $5,000." Glaspell apparently came to Hawkins and offered to settle for $8,500.

It appears that the City Attorney informed Hawkins that the claim should be litigated, but that he as mayor had the power to settle it. On August 25, 1977, Hawkins without any formal action by the City Board of Directors ¹ had a check drawn on the City's Water Department's account for $8,500 made payable to Glaspell. The City Finance Director refused to sign the check because there was no voucher, but Hawkins signed as Mayor, as Acting Water Director and as Acting Finance Director, thus, in effect issuing the check on his own authority.

The City instituted a suit against Hawkins seeking to recover the alleged improper settlement and also joined United States Fidelity and Guaranty Company which had issued a public employees fidelity bond. ² The circuit court sitting without a jury found that the Glaspell claim was valid and that Hawkins was advised that he had the authority to settle the claim. The circuit court concluded that Hawkins was acting in good faith and was not negligent in settling the claim, therefore, he was found not liable. We believe that the circuit court misperceived the law.

The suit against Hawkins was predicated on two theories. First, that from a legal standpoint, the Mayor had no authority to settle a lawsuit instituted against the City. A second claim was based on the fact that he had signed the check as the Acting Water Director and as the Acting Finance Director in contravention of the City's charter provisions.

Hawkins' defense was that in settling the claim he thought he had authority to do so because the City Attorney had advised him he had such authority. He also claimed that the suit had been discussed with the City's Board of Directors, who had orally authorized him to settle it. Finally, with regard to the signing of the check in the capacity of acting directors, he asserted that he had done this on prior occasions and had never been challenged on such practice. The circuit court found these facts to be true.

I.

We begin by noting that our general municipal statutes authorize a municipality to compromise lawful claims presented or filed against it. A municipality has the plenary power and authority "to institute, maintain and defend any civil action or other proceeding in any court." W.Va.Code, 8-12-1(3). And, under W.Va.Code, 8-12-2(4), municipalities are authorized to provide in their charters or by ordinance for "[t]he presentation, ascertainment, disposition and discharge of claims against the city." ³

As a corollary to this rule is the principle that in the absence of some contrary provision, the power to compromise a claim is lodged with the legislative branch of the municipality and, therefore, a mayor is not empowered to compromise claims. E.g., Jenkins v. City of Bowling Green, 261 Ky. 679, 88 S.W.2d 692 (1935); De Muro v. Martini, 137 N.J.L. 640, 61 A.2d 230 (1948), aff'd 1 N.J. 516, 64 A.2d 351; George A. Fuller Co. v. Commonwealth, 303 Mass. 216, 21 N.E.2d 529 (1939); 56 Am.Jur.2d Municipal Corporations, Etc. § 809 (1971); 62 C.J.S. Municipal Corporations § 543(6) (1949); Annot., 15 A.L.R.2d 1359 (1951). None of the parties point to any specific statutory or charter provisions that empower the mayor to compromise claims on behalf of the city.

Perhaps, in an implied acknowledgement that he had no specific authority, Hawkins asserts that he had discussions with the Board of Directors, the legislative body, on one or more occasions and a majority agreed the claim should be settled and orally authorized him to settle it. Significantly, there was no claim made that the Board ever authorized settlement at a particular figure. ⁴

We do not believe that an oral approval by the Board of Directors of the City constitutes a sufficient basis for finding that there had been a proper authorization made by the Board to Hawkins. In Syllabus Point 4 of Ray v. City of Huntington, 81 W.Va. 607, 95 S.E. 23 (1918), we said:

"Ordinarily a municipality acts only through its assembled council, whose will can be expressed only by a vote embodied in some distinct and definite form."

See also City of Moundsville v. Yost, 75 W.Va. 224, 83 S.E. 910 (1914).

The question in Ray v. City of Huntington, supra, was whether the city had delegated its authority to establish and designate streets to the city engineer. There was no municipal record of the delegation and this Court stated:

"When it undertakes to exercise the right conferred and perform the duty imposed, it can do so only by an ordinance, order, or resolution regularly passed and recorded as required by sec. 38 of the charter (Acts 1901, ch. 150), which shall be kept open and subject, whenever convenient, to inspection by any one interested in knowing what the corporation has done affecting his interest." 81 W.Va. at 610, 95 S.E. at 24. ⁵

In Edwards v. Hylbert, 146 W.Va. 1, 9-10, 118 S.E.2d 347, 352 (1960), we said: "[T]he members of a fiscal body such as a municipal council may act only as a group, and that such members can not bind the fiscal body by acting separately and individually."

Similar law was applied to a county court [now county commission], which was recognized to be a public corporation, in Daugherty v. Ellis, 142 W.Va. 340, 97 S.E.2d 33 (1956). In that case, a commissioner was accused of making improper sales of livestock from the county-owned poor farm without the commission's approval. He claimed the sales were subject to the approval or ratification of the other members. However, there was no record of any approval or ratification except oral testimony of another commissioner that he had an individual discussion with the involved commissioner. Judge Haymond outlined the law relating to how a public body must proceed to take official action and summarized these principles in Syllabus Points 2, 3 and 4:

"2. A county court, a corporation created by statute, can do only such things as the law authorizes it to do, and it must act in the manner prescribed by law.

"3. A county court can exercise its powers only as a court, while in legal session with a quorum present, and it must follow that procedure and enter its proceedings of record to make its action valid and binding.

"4. The members of a county court can not separately and individually give their consent or enter into a contract and in that manner obligate the court as a corporate entity."

In the present case, we do not believe there was a sufficient basis for the circuit court's conclusion that Hawkins had been specifically delegated the power to compromise the Glaspell claim.

II.

Independent of Hawkins' authority to settle the claim is his failure to follow the prescribed payment procedure. Section 106 of the Charter of the City of Fairmont, 1915 W.Va. Acts ch. 10 & 1919 W.Va. Acts ch. 21, provides in relevant part: "No warrant for the payment of any claim shall be issued by the director of finance, unless such claim shall be evidenced by a voucher approved by the head of the department for which the indebtedness was incurred and countersigned by the board of directors."

The circuit court found that:

"Mayor Hawkins signed the check in his capacity as Mayor. The Water Director was absent at the time, so he signed the check as Acting Water Director. The Finance Director refused to sign the check earlier in the day because there was no voucher for the check, and was not present when Mr....