Et At. v. McCutcheon.

• Decision Date: 27 April 1926
• Docket Number: (No. 5523)
• Citation: 101 W.Va. 485
• Court: West Virginia Supreme Court
• Parties: William G. Hamrigk et at., v. William H. McCutcheon et al.

101 W.Va. 485

William G. Hamrigk et at.,

v.William H. McCutcheon et al.

(No. 5523)

Supreme Court of Appeals of West Virginia.

Submitted April 13, 1926.

Decided April 27, 1926.

1. Officers Forfeiture of Fiscal Office Will Not be Declared Under Statute Relating to Unlawful Expenditures or Contracts, Unless Such Statute is Negligently or Wilftdly Violated (Code, c. 28 A, % 12).

Forfeiture of a fiscal office will not be declared under Sec. 12, Ch. 28A, Code, unless the statute be negligently or wilfully violated, (p. 487.)

(Officers, 29 Cyc. p. 1410; Schools and School Districts, 35 Cyc. p. 892.)

Z. Evidence. Officers. 'Negligent Violation of Statute" Relating to Unlawful Expenditures or Contracts is One Occasioned by or Accompanied with Negligent Conduct; Negligent Conduct, Causing or Accompanying Negligent Violation of Statute Relating to Unlawful Expenditures or Contracts by Certain Officers, Must be Established by Evidence, and Will Not be Presumed Because Statute is Violated (Code, e. 28A, % 12).

A negligent violation of this statute is one occasioned by or accompanied with negligent conduct. Such conduct must be established by the evidence and will not be presumed because the statute is violated. (p. 487.)

(Evidence, 22 C. J. § 69 [Anno]; Officers, 29 Cyc. p. 1410; Schools and School Districts, 35 Cyc. p. 892.)

3. Officers Schools and School Districts "Negligence" in Official Conduct is Ordinarily Failure to Use Such Reasonable Care and Caution as Would be Expected of Prudent Man; Fact That School Board Voted to Construct School Building Requiring Expenditure in Excess of Funds Legally at its Disposal for Certain Fiscal Years, in Absence of Showing That Such Violations of Statutory Duty Were Wilful or Negligent, Held Not Cause for Removing Board From Office (Code, c. 28A, §12).

Negligence in official conduct is ordinarily the failure to

use such reasonable care and caution as would be expected

of a prudent man. (p. 490.)

(Officers, 29 Cyc. p. 1410; Schools and School Districts, 35 Cyc. p. 892.)

(Note: Parenthetical references by Editors, C. j. Cyc Not part of syllabi.)

Error to Circuit Court, Webster County.

Action by William G. Hamriek and others, taxpayers of Fork Lick District of Webster County, against Willliam H. McCutcheon and others, to remove the defendants from office as members of the Board of Education of Fork Lick District, Judgment forfeiting the offices of defendants McCutcheon and Huffman was rendered, and they bring error.

Judgment set aside; petition dismissed.

E L. Cutlip, Brown, Jackson & Knight, and Lon H. Kelly, for plaintiffs in error.

Hoover & Hoover, E. II. Morton, L. T. Eddy, and W. S. Wysong, for defendants in error.

Hatcher, Judge:

The plaintiffs are citizens and taxpayers of Fork Lick District of Webster County. The defendants are members of the Board of Education of the district, This action was brought in the circuit court of the said county for the purpose of removing the defendants from office. Sundry charges were preferred against them, but the circuit court found that the evidence sustained only charges as to violations of the provisions of Sec. 12, Ch, 28A of the Code. On July 3, 1925, the lower court forfeited the offices of defendants McCutcheon and Huffman. The term of office of defendant Nichols had expired pending the suit and no judgment was found as to him. From the judgment against them McCutcheon and Huffman prosecute error here. No cross assignment of error is made. Therefore the only charges against defendants to be considered in this court are those upon which they were found guilty in the lower court.

In 1922 the said Board of Education employed an architect, and entered into a contract with P. Q. Shrake to construct a part of a school building. Shrake defaulted in his contract, and its completion was attempted by two of his bondsmen, Hoover and Woods. Some work was also done on the building by J. A. Tincher. During 1923, an alleged contract was made by the Board with the Virginia School Supply Company to furnish seats for the new building. In 1924 the Board employed the Hamilton Plumbing Company to install a heating plant in the building, and to complete the plumbing.

Sec. 12, Ch. 28A, Code, makes it unlawful for a Board of Education to make any contract, express or implied, which involves the expenditure of money in excess of funds legally at the disposal of such board for the current fiscal year. In a written opinion the circuit court termed the undertaking of the Board to erect the new school building "a commendable enterprise", and found that there had been no waste of public money, but that the contracts relating to the new building involved the expenditure of money in excess of the funds legally at the disposal of the Board for the fiscal years ending in 1923, 1924, and 1925, respectively. The lower court correctly determined that the offices of defendants could not be forfeited for these violations unless they were wilful or negligent. The defendants were acquitted of wilful violations in the following positive statement: '' These defendants bad no evil designs. They were trying to build up and better their community. There is no suspicion of personal dishonesty as to either of them. The understanding was beyond their power, and their enthusiasm no doubt caused them to overreach," The circuit court found the defendants guilty of legal negligence, or negligence per se. The reasoning of the circuit court on this point is: "Since the errors of the Board have resulted in the wrongful application of funds, their act must be held to be the proximate cause of the public injury, and therefore negligent as a matter of law." We cannot agree that the statute refers to negligence per se. That part of the statute directing the forfeiture of office is as follows: "Whenever any court of competent jurisdiction, shall ascertain or determine that any member of any fiscal body hereinbefore referred to has negligently or wilfully violated any of the provisions of this section, it shall enter an order declaring the office of such member forfeited." If the Legislature had intended that a forfeiture of a fiscal office should be declared upon the mere violation of the statute, it would have so stated. The words wilfully and negligently would have been superfluous. Since they are used, they must be given full significance. The wilful or negligent violation of the statute necessarily implies a violation growing out of or accompanied by wilful or negligent conduct. The acts of a fiscal officer may be unlawful, but if free from wilfulness or negligence, his office cannot be forfeited under this statute. The circuit court recognized this distinction in regard to the charge of wilfulness, but failed to apply it in regard to the charge of negligence. When forfeiture of office is sought because of negligent violation of this statute, it is just as necessary to prove negligent conduct, as it is to prove wilful conduct when a wilful violation is charged.

We will therefore advert to the evidence in order to ascertain whether the conduct of the defendants was in fact negligent,

(1). According to the evidence T. M. Hicks, the Secretary of the Board, was a cautious, efficient and experienced official. The Board relied upon his calculations and...