Johnson v. Black

• Decision Date: 26 January 1905
• Citation: 49 S.E. 633,103 Va. 477
• Parties: JOHNSON et al. v. BLACK et al.
• Court: Virginia Supreme Court

49 S.E. 633

103 Va. 477

JOHNSON et al.

v.BLACK et al.

Supreme Court of Appeals of Virginia.

Jan. 26, 1905.

EQUITY —MULTIFARIOUSNESS—PUBLIC OFFICES —PAYMENT OF ILLEGAL SALARIES—SUIT BY TAXPAYER—JURISDICTION—LACHES — LIMITATIONS.

1. The bill in a suit by a number of taxpayers of a county against the members of the board of supervisors and a number of their predecessors in office to compel defendants to restore to the county moneys paid them in excess of their salaries, in which the same defenses were made by each defendant, was not multifarious.

2. Va. Code 1904, p. 398, § 836, provides that all improper accounts presented to the board of supervisors shall be resisted by the commonwealth attorney, and that, when required by six freeholders of the county, he shall appeal from any decision of the board to the circuit court within 30 days. Held, that equity is not without jurisdiction to entertain a suit by a number of the taxpayers of a county against the board of supervisors and a number of their predecessors to compel them to restore to the county moneys paid them in excess of their salaries, on the ground that there is an adequate remedy at law under the statute.

3. The fact that the suit embraced moneys paid for the period of 11 years did not render it barred by laches, though the books of the board had been open to the public.

4. The members of the board of supervisors of a county are not entitled to compensation in excess of that fixed by Va. Code 1904, p. 402, § 848, irrespective of what their services may have been reasonably worth, and irrespective of the custom of their predecessors.

5. In a suit by a number of taxpayers of a county to compel the members of the board of supervisors and a number of their predecessors to restore to the county moneys paid them in excess of their salaries, the county is practically the complainant, and, as against it, defendants could plead limitations.

Appeal from Circuit Court, Norfolk County.

Suit by Foster Black and others against the board of supervisors of Norfolk county, one Johnson, and others. From a decree in favor of complainants, certain defendants appeal. Affirmed.

John W. Happer, M. R. Peterson, and F I. Crocker, for appellants.

John B. Jenkins and N. T. Green, for appellees.

HARRISON, J. This suit in equity was brought by Foster Black and five others, resident citizens and taxpayers of the county of Norfolk, against the board of supervisors of that county and the appellants, for the purpose of compelling the appellants to restore to the county treasury certain public moneys which it is charged they had illegally and fraudulently withdrawn therefrom.

The bill alleges that the complainants had recently discovered that for 11 years said board had been continuously violating the law with respect to the compensation of its members, and had illegally and fraudulently during that time allowed and ordered to be paid out of the funds of the county, to the respective members of the board, compensation greatly in excess of that allowed by law. The names of the members of the boards during the time mentioned are set forth as defendants, and among them are the appellants.

There is filed with the bill, as a part thereof, a statement (Exhibit A) taken from the records of the board, which shows that between June 10, 1890, and June 11, 1901, compensation aggregating $16,192.75 had been allowed by the board to its several members; that, of this sum, the appellant W. S. Johnson, who had been in office continuously during that time, had received the sum of $3,042.75; that the appellant John A. Codd, who had been in office from 1892 to 1901, had received the sum of $3,893; that the appellant George E. Wood, who hadbeen in office from 1896 to 1901, had received the sum of $1,932; that the appellant J. C. Lynch, who had been in office from 1896 to 1901, had received the sum of $849.50; and that the appellant D. M. Harding, who went into office in 1901, had received the sum of $02.77. This statement also shows the several sums received by the other nine persons, defendants in the court below, during the respective periods of their occupancy of the office, to have been, according to length of service, in somewhat corresponding proportion to those mentioned. The bill further alleges that, under the law regulating the compensation of members of boards of supervisors, during the time mentioned, no member of such boards, for that time or for any part thereof, could have legally been paid as compensation for his services, as much, or anything like as much, for any one year or for the whole of such time, as the statement Exhibit A shows that the defendants received upon the order of the board of which they were respectively members. It is therefore further alleged that the payments so made to the defendants, and each and every one of them, as shown on said statement, were the result of an illegal, fraudulent, and corrupt combination upon the part of the members of said respective boards of supervisors to divert to the use of themselves, in their individual capacity, money belonging to the taxpayers of the county, which was controlled and held in trust by these several boards of supervisors, as the representatives of the county, for purposes authorized by law; that each of the defendants to whom such overpayments were made, as set forth, had notice of, and participated and acquiesced in, a fraudulent, illegal, and corrupt breach of trust, and are liable in equity therefor, and can be treated therein—each of them—as trustee for the county and its taxpayers for the amounts so overpaid, with interest on the same from the date of such payments, and can be required in this suit to repay the same into the treasury of the county.

It is further alleged that, if the amount of such overpayments can be recovered for the county, it will materially lessen the taxes to be paid by complainants and the other citizens of the county; that complainants had applied to the present board of supervisors of the county to take some steps to recover such illegal payments, but that it had refused to pay any attention to the application, and had treated the same with contempt, thus refusing complainants and the county any hope of relief from action on their part; that further application to said board in this behalf would be a useless waste of time, as five out of its six members are parties defendant hereto, whom complainants wish to compel to refund to the treasury of the county moneys illegally paid to them.

The prayer of the bill is that an account may be taken of the amounts illegally paid to the defendants from the funds of Norfolk county; that a decree may be entered against each of the defendants for the amount so found to have been illegally paid, to be paid into the treasury of the county; and that each of the defendants be declared and held to be a trustee for the county to the extent of such illegal and fraudulent payments; and for general relief.

The defendants filed their several demurrers and separate answers to this bill, and the demurrers were overruled. In their answers they set out the amounts they have received for attendance on the meetings of the boards, and for mileage in going to and returning therefrom, as well as the amounts which they have received for service on committees of the boards, and for other alleged beneficial services rendered the county. They declare that they have faithfully performed their duties as members of the boards upon which they served, and deny that there was any illegal or fraudulent combination among them to divert the funds of the county to their own use, or that they have been guilty of any breach of trust in relation thereto, and claim that under a proper construction of the law, and in view of the arduous duties they have had to perform in such a large and prosperous county as Norfolk, and the manifest benefit of such services to the county, the amounts sought to be recovered were legally and properly allowed and paid to them. They also say that all of their meetings were open to the citizens of the county, and all of their allowances matters of public record, and that the complainants knew, or might by due diligence have known, of the allowances to themselves at the time they were made. They also plead in their answers the bar of the statute of limitations. Numerous depositions were taken, and certified copies from the records of the boards of supervisors filed.

The circuit court held that the evidence did not justify the charge that the defendants had entered into a fraudulent conspiracy, but only showed that they had followed an illegal custom and precedent of their predecessors in office, in illegally withdrawing from the treasury of the county compensation in excess of that allowed by law; that the defendants had illegally withdrawn from the county treasury compensation in excess of their lawful right, the amount of which excess compensation the complainants were entitled to have returned to the treasury of Norfolk county, so far as the recovery of the same is not barred by the statute of limitations—being of opinion that the defenses of the statute of limitations were good against any defendant who had not drawn such illegal compensation within three years prior to the institution of this suit. The court, proceeding further, holds that a recovery is barred by the statute as to all of the defendants except W. S. Johnson, againstwhom a decree is entered for $945.20, with interest on tile several parts thereof from the date that each payment was received; John A. Codd, against whom a decree is entered for the sum of $1,283.75, with like interest; George E. Wood, against whom a decree is entered for the sum of $1,070, with like interest; J. C. Lynch, against the administrator of whom decree is entered for the sum of $412, with like interest; and D. M. Harding, against whom decree is entered for the sum of $36.30, with like interest From this decree, which...