Daugherty v. Ellis

• Decision Date: 12 March 1957
• Docket Number: No. 10835,10835
• Citation: 142 W.Va. 340,97 S.E.2d 33
• Parties: Russell L. DAUGHERTY, Prosecuting Attorney of Cabell County, West Virginia, v. Jim ELLIS, Commissioner of the County Court of Cabell County, a Corporation.
• Court: West Virginia Supreme Court

Page 33

97 S.E.2d 33

142 W.Va. 340

Russell L. DAUGHERTY, Prosecuting Attorney of Cabell County West Virginia, v. Jim ELLIS, Commissioner of the County Court of Cabell County, a Corporation.

No. 10835.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 19, 1956.

Decided Dec. 18, 1956.

Dissenting Opinion March 12, 1957.

Syllabus by the Court.

1. To constitute res judicata and to apply that doctrine in a proceeding at law or in equity there must be concurrence of these four conditions: (1) Identity in the thing sued for; (2) identity of the cause of action; (3) identity of the persons and the parties to the proceeding; and (4) identity of the quality in the persons for or against whom the claim is made.

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.

5. A commissioner of a county court who, acting as an individual member, makes an unauthorized sale of a herd of livestock owned by the county for a sum which is substantially less than the value of a part of the herd, is guilty of malfeasance in office which warrants his removal from office under Sections 5 and 7, Article 6, Chapter 6, Code, 1931.

6. The finding of a trial court upon facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding.

J. J. N. Quinlan, W. E. Parsons, C. William Gates, Huntington, for plaintiff in error.

John G. Fox, Atty. Gen., Charles R. McElwee, Asst. Atty. Gen., Russell L. Daughterty, Raymond I. Lucas, Huntington, for defendant in error.

HAYMOND, Judge.

In this proceeding instituted in the Circuit Court of Cabell County and based on Section 7, Article 6, Chapter 6, Code, 1931, the petitioner, Russell L. Daugherty, Prosecuting Attorney of Cabell County, West Virginia, seeks the removal of the defendant, Jim Ellis, from the office of Commissioner of the County Court of that county on the grounds of incompetence, official misconduct, and malfeasance in office. To a final judgment removing the defendant from that office he prosecutes this writ of error in this Court.

Upon a verified petition filed and entered of record in the circuit court on January 27, 1956, a summons was issued requiring the defendant to appear before the circuit court on February 10, 1956, and answer the charges set forth in the petition; and on the return day of the summons the defendant filed his verified answer by which he denied each of the charges preferred against him.

The petition sets forth grounds for the removal of the defendant from office in four separate specifications.

The first specification charges, in substance, on information that the defendant on December 28, 1955, in Cabell County, unlawfully and feloniously entered into a conspiracy with other persons to take and carry away certain personal property not owned by them but owned by the County Court of Cabell County of the value of $4,600, consisting of thirteen cows of the value of $2,925, seventeen calves and heifers of the value of $1,275, five sows of the value of $200, and twenty pigs of the value of $200; and that the defendant and such other persons pursuant to such conspiracy did unlawfully take and carry away the foregoing public property of the county court.

The second specification charges in substance that on the 28th day of December, 1955, the defendant without authority and without the concurrence of either of the other two commissioners of the county court appointed O. C. Shively to sell a certain herd of livestock owned by the county court, consisting of thirteen cows, seventeen calves and heifers, five sows and twenty pigs, of the total value of $4,600; that Shively acting under the direction and pretended authority of the defendant sold to G. S. Banks five sows for $65 and five cows for $690, a total of $755; to Henry E. Sullivan six calves for $90 and four cows for $552, a total of $642; to John G. Werner mineteen pigs for $76 and one cow for $138, a total of $214; and to Herbert M. Graham eleven calves and heifers for $275 and three cows for $414, a total of $689, aggregating $2,300; that the defendant took and received from Shively and delivered to George F. Cabell, the supervisor of the county poor farm at Ona, in Grant District, Cabell County, where the foregoing livestock was maintained by the county court, the sum of $2,300 in currency; that the action of the defendant in effecting the foregoing sales was not concurred in by either of the other two commissioners of the county court and was not at any time ratified by either of them; and that the sales so concluded by the defendant were not authorized or voted upon by a quorum of the county court and were in all respects invalid and without authorization in law.

The third specification charges, in substance, on information that the defendant unlawfully and deliberately conspired with Shively and other persons to defraud the County Court of Cabell County and to steal from it certain money representing the difference between the purported original sale price and the amount received by the defendant and Shively and the other persons from a resale of the livestock; that the foregoing conspiracy was devised by the respondent and Shively and the other persons prior to a sale by which thirteen cows were sold to Don Hunter at the price of $225 each, aggregating $2,925, a difference of $625 between the resale price of the cows and the original price for all the livestock sold to the four individual purchasers; that the cows sold to the original buyers were never delivered to them but were delivered on December 28 and December 29, 1955, at the direction of the defendant, acting by Shively, to Hunter; that Banks, Sullivan and Graham were mere figureheads in the conspiracy; and that all the livestock that was delivered to them was delivered under the guise of a sale and would have been redelivered to Shively or to the defendant or to such persons as either of them might designate, for the purpose of a resale at its rule and actual value.

The fourth specification charges the defendant with incompetence in the conduct of his office and in the management of publicly owned property by reason of his action, as one member of the county court, in selling the property, un unlawfully appointing an unqualified agent to act in behalf of the county court who was also acting as agent for one or more of the original purchasers, and in accepting and delivering the sum of $2,300, represented by twenty three one hundred dollar bills, in payment for all the livestock sold to the original purchasers.

The prayer of the petition is that the defendant be required to appear and answer the charges; that upon proof the defendant be removed from his office and dealt with according to law; and that the petitioner be granted general relief.

The proceeding was heard by the circuit court without a jury on April 18 and 19, 1956, at which time evidence, consisting of the testimony of numerous witnesses and certain exhibits, was introduced in behalf of the petitioner. The defendant did not testify in his own behalf or offer any evidence, other than three written exhibits, to controvert the charges set forth in the petition. Before the introduction of the evidence in behalf of the petitioner the defendant moved the court to strike the first specification from the petition on the ground that the defendant at the October Term, 1955, of the Common Pleas Court of Cabell County had been indicated, tried and acquitted of the alleged offense of unlawfully and feloniously combining and conspiring with other persons to take and carry away certain personal property which was not owned by them. He also filed a plea of res judicata which alleged that the defendant had been previously indicted, tried and acquitted of the identical charge set forth in the first specification, and that the defendant in the criminal proceeding was the same person as the defendant in this proceeding. The court denied the motion of the defendant and held the plea to be insufficient in law.

At the conclusion of the evidence introduced in behalf of the petitioner the defendant moved the court to strike the evidence relating to each of the four specifications on the ground that it is insufficient to support a finding against the defendant. The court overruled the foregoing motion of the defendant and by final judgment entered May 10, 1956, ordered the removal of the defendant from the office of Commissioner of the County Court of Cabell County. To that judgment this Court awarded this writ of error and supersedeas on June 11, 1956, upon the application of the defendant.

The defendant was elected a Commissioner of the County Court of Cabell County at the general election held in that county on November 2, 1954, for a term of six years from January 1, 1955, and at the time of the transactions involved in this proceeding he held and occupied that office and was also the president of the county court.

Two or three days prior to Wednesday, December 28, 1955, the defendant talked to O. C. Shively about a sale of all the livestock at the county poor farm which had been previously leased by the county court to Case Farm Machinery Company, in which Shively owned stock and of which he was a vice president. That company wanted possession of the farm and the barn and Shively was interested in the removal of the livestock from the...