Edwards v. Hylbert

• Decision Date: 14 February 1961
• Docket Number: No. 12066,12066
• Citation: 146 W.Va. 1,118 S.E.2d 347
• Parties: Henry J. EDWARDS et al. v. C. W. HYLBERT, etc., et al.
• Court: West Virginia Supreme Court

Page 347

118 S.E.2d 347

146 W.Va. 1

Henry J. EDWARDS et al. v. C. W. HYLBERT, etc., et al.

No. 12066.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 4, 1960.

Decided Dec. 6, 1960.

Rehearing Denied Feb. 13, 1961.

Concurring Opinion Feb. 14, 1961.

Syllabus by the Court.

1. A member of a local fiscal body who has wilfully or negligently violated the provisions of Code, 1931, 11-8-26, as amended, may be removed from office in a proper proceeding instituted for that purpose in pursuance of Code, 1931, 11-8-31, as amended, or Code, 1931, 6-6-7.

2. It is the duty of members of a local fiscal body to exercise ordinary diligence to keep informed of the condition of funds subject to their disposal. The obligation thus imposed is not satisfied by a perfunctory performance. They must not rely on indirect information when direct information is at hand. They can not avoid the effect of statutory restrictions on the ground of ignorance which results from their own inattention. It is their duty to be informed, and this requires the exercise of the diligence of an ordinarily prudent person.

3. '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.' Point 6 Syllabus, Daugherty v. Ellis, 142 W.Va. 340 .

Wm.Bruce Hoff, Daniel A. Ruley, Jr., George W. Hill, Jr., Parkersburg, for plaintiffs in error.

Richard F. Pence, Pros. Atty., Wood County, Jack L. Miller, Asst. Pros. Atty., Wood County, Parkersburg, for defendants in error.

CALHOUN, Judge.

This proceeding was instituted pursuant to Code, 6-6-7, and Code, 11-8-31, as amended, in the Circuit Court of Wood County by Henry J. Edwards, Esther V. Van Fossen, Corlean Virginia Mayhew, Ralph Clifton Long, and Dorothy H. Leon, who will be referred to herein as the 'petitioners', against C. W. Hylbert, Mayor of the City of Parkersburg, and R. R. Nuzum, James M. Beckett, Jr., Cecil C. Coffield and R. W. Carr, councilmen of that city, who, with the exception of R. W. Carr, will be referred to herein as the 'respondents'. The purpose of the proceeding is to oust or remove from office the municipal officials named above. Prior to the date of the institution of the proceedings R. W. Carr became mentally and physically ill on June 27, 1959, to such a degree that he was unable to participate or to testify as a witness in the proceedings in the trial court. Under such circumstances the case was continued indefinitely as to him but proceeded to final judgment as to the mayor and the other three members of the city council.

The case is before this Court on appeal from a final order entered by the Circuit Court of Wood County on July 30, 1960, by which the mayor and three councilmen were removed from office and by which the execution of such final judgment was suspended for a period of sixty days in order to enable the respondents to apply to this Court for an appeal. Subsequently, this Court suspended the judgment of the trial court pending a final determination of the matters arising on such appeal.

The basic charge alleged as a ground for removal is that during the 1958-59 fiscal year the respondents purchased or contracted for the purchase of seven automobiles to be paid for, and which actually were paid for as items of current expense during the ensuing 1959-60 fiscal year. The case was heard in the lower court on the basis of twelve several specifications contained in the petition for removal filed therein, which, briefly summarized, are as follows:

Specification Number One charges that the respondents 'wilfully', and Number Two charges that they 'negligently' contracted a debt and incurred an obligation on behalf of the City of Parkersburg in the fiscal year 1958-59, to be paid for in the fiscal year 1959-60, in that on May 12, 1959, the council passed a resolution for the purchase of an 88 Oldsmobile automobile for the use of the department of public safety.

Specification Number Three charges that the respondents 'wilfully' and Number Four charges that they 'negligently', in the fiscal year 1958-59, contracted a debt and incurred an obligation to be paid in the 1959-60 fiscal year, in that on May 19, 1959, the council passed a resolution for the purchase of a 98 Oldsmobile automobile for the use of the department of streets.

Specification Number Five charges that the respondents 'wilfully' and Number Six charges that they 'negligently', in the fiscal year 1958-59 contracted a debt and incurred an obligation to be paid in the fiscal year 1959-60, in that on June 30, 1959, the council passed a resolution authorizing the purchase of a Chrysler automobile for the use of the department of public affairs.

Specification Number Seven charges that the respondents 'wilfully' and Number Eight charges that they 'negligently' contracted a debt and incurred an obligation in the 1958-59 fiscal year to be paid in the 1959-60 fiscal year in that they 'allowed and permitted' H. E. Martin, chief of police, to incur an indebtedness, expense and obligation for the purchase of four new Ford automobiles for the police department.

Specification Number Nine charges that the respondents 'wilfully' and Number Ten charges that they 'negligently' included in the municipal council levy estimate for the fiscal year 1959-60 obligations or debts incurred in the preceding fiscal year, specifically described as an item of $2,472 for the 88 Oldsmobile, $2,495 for the 98 Oldsmobile, $2,395 for the Chrysler and $5,000 for the four Ford automobiles.

Specification Number Eleven charges that the respondents 'wilfully' and Number Twelve charges that they 'negligently' did, during the month of June, 1959, incur obligations on behalf of the city in excess of funds available, in that they voted to expend the sum of $49,314.47 in excess of funds available, in addition to obligations incurred in relation to the seven automobiles as previously stated herein.

The respondents were elected on April 7, 1959, for three-year terms, and assumed the duties of their several offices on April 20, 1959. C. W. Hylbert is a first-term mayor and the head of the Department of Public Affairs of the City of Parkersburg. R. R. Nuzum is a second-term, but not a consecutive-term, councilman, and is head of the Department of Public Safety of the City of Parkersburg. James M. Beckett, Jr., is a second-term councilman, and head of the Department of Streets of the City of Parkersburg. Cecil C. Coffield is a sixth-term councilman, and is head of the Department of Waterworks and Sewers of the City of Parkersburg. R. W. Carr is a third-term councilman and, prior to his illness, served as head of the Department of Accounts and Finance of the City of Parkersburg.

At the first meeting of the newly-elected officials held on April 21, 1959, the respondents apparently had before them the monthly financial report of the City of Parkersburg for the month of March, 1959, disclosing small unexpended balances in various subdivisions of the general fund but an overdraft in that fund for the fiscal year to that date amounting to the sum of $23,905.43. The monthly financial report for April, 1959, received by the respondents late in May, 1959, disclosed an overdraft in the general fund amounting to $34,142.81. The monthly financial report for May, 1959, received by the respondents during the last week of June, 1959, disclosed a balance in the general fund amounting to $9,699.96. The monthly financial report for June, 1959, received by the respondents during August, revealed that the general fund was overdrawn, as of June 30, the end of the 1958-59 fiscal year, in the amount of $55,384.86.

On or about May 4, 1959, respondent R. R. Nuzum, councilman and head of the department of public safety, negotiated with Hupp & Wharton Cadillac-Olds Company for the purchase of a new 1959 model 88 Oldsmobile automobile for the purchase price of $3,872, subject to a credit of $1,400 for a 1957 Ford automobile owned by the city, leaving a cash cost difference of $2,472. The invoice from Hupp & Wharton Cadillac-Olds Company had typewritten on its face: 'To be paid for by City of Parkersburg on or about July 10, 1959.' The city received the new Oldsmobile and on May 9, 1959, Mayor Hylbert transferred the title to the 1957 Ford to Hupp & Wharton Cadillac-Olds Company. The city was issued a certificate of title for the new Oldsmobile by the Department of Motor Vehicles of West Virginia on May 11, 1959. On May 12, 1959, the council passed a resolution on second and final reading, approving the purchase of the new Oldsmobile and directing the payment of the cash difference at an indefinite, unspecified date, but specifically 'upon the approval of the invoice of same by R. R. Nuzum.' On July 21, 1959, within the new fiscal year, R. R. Nuzum approved in writing the invoice for the new 88 Oldsmobile, and directed that it be paid. Accordingly, the cash difference was paid on July 22, 1959, from the general fund in the amount of $2,472.

On or about May 5, 1959, respondent James M. Beckett, Jr., councilman and head of the department of streets, negotiated the purchase on behalf of the city of a new 98 Oldsmobile automobile from Hupp & Wharton Cadillac-Olds Company at a total cost of $4,000, subject to a credit of $1,505 for a 1957 Mercury belonging to the city, leaving a cost difference of $2,495. The invoice from Hupp & Wharton Cadillac-Olds Company bears on its face the following typewritten language: 'To be paid for by City of Parkersburg on or about July 10, 1959.' The city received the new 98 Oldsmobile; the mayor transferred title to the 1957 Mercury to Hupp & Wharton Cadillac-Olds Company on June 8, 1959; and the city was issued a certificate of title for the new 98 Oldsmobile by the department of motor vehicles on May 11, 1959. On May 19, 1959, the council...