Kesling. v. Moore

• Decision Date: 28 September 1926
• Docket Number: (No. 5811)
• Citation: 102 W.Va. 251
• Parties: W. B. Kesling et al. v. Clarence F. Moore and C. E. Cain.
• Court: West Virginia Supreme Court

102 W.Va. 251

W. B. Kesling et al.

v.Clarence F. Moore and C. E. Cain.

(No. 5811)

Supreme Court of Appeals of West Virginia.

Submitted September 21, 1926.

Decided September 28, 1926.

1. Counties. Schools and School Districts Under Statute

Prescribing Procedure for Removal of County and District Officers, Application for Appeal Must be Made Within} Reasonable Time, Dependent on Circumstances (Code, c. 7, § 7, and chapter 135, §§ 1, 8; Acts 1872-73, c. 17, §§ 1, 3). The statute prescribing the procedure for the removal from office of county and district officers, not fixing me time within which the appeal to this court therein provided for shall be taken, an application for an appeal must be made within a reasonable time, and what is a reasonable time will be determined by the circumstances of each case. (p. 253.) (Appeal and Error, 3 C. J. § 1091.)

2. Officers

Misconduct in office is any unlawful behavior by a public officer in relation to the duties of his office, wilful in character, (p. 257.)

(Officers, 29 Cyc. p. 1449.)

3. Schools and School Districts For District Officer to be or

Become Pecuniarily Interested in Proceeds of Contract, in Letting of Which He May Have Voted, Constitutes "Misconduct in Office" (Code, c. 151, § 16a). The commission of the acts prohibited by section 16a, chapter 151, Barnes' Code 1923, constitutes misconduct in office, (p. 258.)

(Schools and School Districts, 35 Cyc. p. 892.)

Kesling v. Moore

[Sept. 1926

4. Jury In Proceeding to Remove County or District Official from Office He is Not Entitled to Jury Trial (Code, c. 7, § 7).

In a proceeding for removal from office of a county or district officer, pursuant to the provisions of section 7 of chapter 7 of the Code, the officer proceeded against is not entitled to a jury trial, (p. 258.)

(Juries, 35 C. J. § 75.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of Syllabi.)

Error to Circuit Court, Taylor County.

Proceeding by W. B. Kesling and others, citizens and taxpayers, to remove from office Clarence F. Moore and another, members of a district board of education. Judgment removing defendants from office, and they bring error. On motions to dismiss the writ of error and to affirm the finding and judgment of the circuit court.

Affirmed.

W. P. Samples for plaintiffs in error.

Robinson, Warder & Robinson for defendants in error.

Miller, Judge:

We have before us for consideration two motions, one to dismiss the writ of error heretofore awarded in the case of Kesling and others vs. Clarence F. Moore and C. E. Cain, and the other to affirm the finding and judgment of the circuit court therein.

The original proceeding before the circuit court was instituted by certain citizens and taxpayers, praying for the removal from office of the defendants, members of the district board of education. The circuit court found that the defendants were guilty of misconduct in office, and by the judgment complained of, removed them from office. From this judgment a writ of error was awarded on August 11, 1926, in vacation, by one of the judges of this court.

The first ground assigned for dismissal of the writ of error is that the stay of execution on the judgment of May 20, 1926, having expired before the writ was awarded, the judgment of removal had then become executed, and the defend-

102 W. Va, ants were no longer in office; and that the case is, therefore, a moot one. A number of our cases are cited for this proposition; but an examination of these cases discloses the fact that in each case the term of office of the officer removed had expired when the motion to dismiss was made.

The statute, section 7 of chapter 7 of the Code, designating the circuit courts as the tribunals for the removal from office of county and district officers for official misconduct and on the other grounds therein enumerated, provides: '' Proceedings under this section shall be speedily heard and determined, and an appeal shall lie to the supreme court of appeals of this state from any order removing or refusing to remove, any officer proceeded against hereunder."

It is to be noted that the statute does not prescribe the time within which such appeal shall be taken. But for the provision of the statute giving the supreme court of appeals jurisdiction in such cases, this court would be without jurisdiction, for such cases do not come within those enumerated in section 1 of chapter 135 of the Code; and it does not appear that section 3 of said chapter, prescribing the time within which petitions for appeals and writs of error shall be presented to this court or to a judge thereof in vacation, applies in any cases other than those named in section 1 thereof. Acts 1872-73, chapter 17. And the statutes giving this court jurisdiction of appeals from boards, commissions and certain other inferior tribunals, in cases involving public interests, prescribe the time in which an appeal shall be taken, for example, from the state compensation commissioner, in ninety days, from the public service commissioner, in sixty days, and from an order of the governor removing a state officer from office, thirty days. In view of the nature of cases of removal from office, the provision of the statute quoted, that "proceedings under this section shall be speedily heard and determined," and the provisions of sections 1, 2, and 3 of chapter 17, Acts 1872-73, we do not think that the provision of the latter act as to the time allowed for appeals to this court applies to cases of the kind under consideration.

Then, within what time must an appeal be taken? In the case of criminal appeals from judgments of justices of the peace, where the statute allowing such appeals does not prescribe the time within which they shall be taken, we have held that the application must be made within a reasonable time, and that what is a "reasonable time" must be determined from the circumstances of each case. State v. Emsweller, 78 W. Ya. 214; State v. Tharp, 81 W. Ya, 194; Nicely v. Butcher, 81 W. Ya. 247; State v. Richards, 91 W. Ya. 22. "We think the same rule should be applied here.

The judgment of the circuit court here complained of was entered on May 20, 1926, and the term of the court at which it was entered adjourned June 11, sixty-one days before the writ of error was awarded. The final order of the circuit court suspended the judgment for a period of sixty days from the rising of the court, to enable defendants to make application to this court for a writ of error and supersedeas. Defendants' bill of exceptions was signed by the circuit judge on July 7th, and their petition for a writ of error was filed in the office of the clerk of this court on July 12th. The January 1926 term of this court adjourned June 25th; and the defendants' petition and the record in the case were brought to the attention of one of the judges of the court, in vacation, on August 11th. Under the circumstances we think defendants exercised due diligence in perfecting an appeal.

In view of the foregoing, it becomes unnecessary to respond further to plaintiffs' contention that defendants removal became effective when the stay granted by the circuit court expired, and that the case thereupon became a moot one.

In support of their motion to affirm the judgment of the circuit court, plaintiffs assign several reasons, among them, that the matter is one of public importance, and that the allegations of the petition for removal were fully and clearly proved.

The charges in the petition for removal of the defendants were evidently based on the provisions of section 16a of chapter 151 of the Code, making it unlawful for any district school officer "to be or become directly or indirectly, pecun- iarily interested in the proceeds of any contract or service, or in furnishing any supplies in the contract for, or the award or letting of which, as such member or officer, he may have any vote or control." This section makes the violation of the provision quoted a misdemeanor, and imposes a fine on the officer found guilty of the offense, and further provides that he shall forfeit, for the benefit of the school fund, "the amount of said pecuniary interest, to be ascertained by the jury trying the case."

The petition alleges that defendants were guilty of official misconduct, in the particulars therein set out; that they were both directly and indirectly pecuniarily interested in the proceeds of certain contracts and services, namely, that they wilfully entered upon and carried out a program of violating the statute and of performing certain services and furnishing certain supplies for the maintenance of the school buildings and other school properties of the district, and by certain direct and indirect ways paid themselves out of the funds of the district for said services and supplies; that between September 27, 1923, and October 6, 1924, they caused to be issued to themselves and to the son of the defendant C. F. Moore, sixteen several orders, amounting to $984.97. These orders are set out separately in the petition, with the date and amount of each, and to whom payable, and with a full description of the services claimed to have been rendered and the supplies furnished. As to one order for $126.50, issued in the name of H. A. Moore, son of the defendant C. F. Moore, it is alleged that the labor claimed to have been performed was by the said C. F. Moore, and that the order was paid to him.

By their answer the defendants admit that they issued to themselves the orders as alleged, but deny that they did so in wilful disregard of the statute, or in pursuance to a general plan to violate the statute, and aver that they only performed the labor and furnished the supplies for which they were paid out of the district funds, after they had exhausted every effort to secure others to do the same. That defendants issued orders to themselves and the son of the defendant Moore for...