Smith v. Godby

• Decision Date: 09 June 1970
• Docket Number: No. 12901,12901
• Citation: 154 W.Va. 190,174 S.E.2d 165
• Court: West Virginia Supreme Court
• Parties: , 42 A.L.R.3d 675 John L. SMITH et al. v. J. T. (Tom) GODBY.

Page 165

174 S.E.2d 165

154 W.Va. 190, 42 A.L.R.3d 675

John L. SMITH et al. v. J. T. (Tom) GODBY.

No. 12901.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 14, 1970.

Decided April 21, 1970.

Rehearing Denied June 9, 1970.

Syllabus by the Court

1. As a general rule offenses committed or acts done by a public officer during a previous term of office are not cause for removal from office in the absence of disqualification to hold office in the future or additional penalty imposed by law upon the person removed from office.

2. The remedy for the removal from office of a public officer is a drastic remedy and the statutory provision prescribing the grounds for removal is given strict construction.

3. Section 7, Article 6, Chapter 6 Code, 1931, expressly requires that to remove a person from office the charge against him must be established by satisfactory proof.

4. When the finding of a trial court in a case tried by it in lieu of a jury is against the preponderance of the evidence, is not supported by the evidence, or is plainly wrong, such finding will be reversed and set aside by this Court upon appellate review.

Graziani, O'Brien & Paterno, Thomas P. O'Brien, Jr., Charleston, Daniel D. Dahill, Logan, Philip J. Graziani, Charleston, for appellant.

William L. Jacobs, Parkersburg, for appellees.

HAYMOND, Judge:

In this proceeding instituted on May 16, 1969, in the Circuit Court of Logan County, under Section 7, Article 6, Chapter 6, Code, 1931, the petitioners, John L. Smith, Jack Hobbs, James Robert Steele, Paul Childers, Milton Belcher, Ronald Johnson, James Francis, Harold Whitman, Jack Conley, Chester Stapleton and Denver Justice, voters of Logan County, West Virginia, seek to remove from the office of assessor of Logan County, West Virginia, the defendant, J. T. (Tom) Godby, who was duly elected as assessor in November 1968 for a period of four years from January 1, 1969. The defendant had previously been elected to that office in November 1960 and reelected in November 1964, and at the time of the institution of this proceeding he was serving his third consecutive term as Assessor of Logan County.

The petition charges the defendant with official misconduct, malfeasance, incompetence and neglect of duty, and contains five separate charges or specifications.

The allegations in charge 1 of the petition are, in substance, that the defendant knowingly and willfully failed, neglected and refused to comply with the provisions of Section 1, Article 3, Chapter 11, and Section 4, Article 9A, Chapter 18, Code, 1931, as amended, which require the assessors of each county to assess all property in the county at its true and actual value, that the property in Logan County had been appraised pursuant to the provisions of Section 4, Article 9A, Chapter 18, Code, 1931, as amended, before July 1, 1966, and that the defendant refused to comply with that statute for a period of the three consecutive fiscal years, 1967--1968, 1968--1969 and 1969--1970, which resulted in the loss of large sums of tax money to the people of Logan County.

The allegations in charge 2 of the petition are that the defendant knowingly and willfully failed, neglected and refused to assess all property in Logan County in compliance with the provisions of Article X, Section 1, of the Constitution of West Virginia, and did not assess such property uniformly and in compliance with the Constitution and the statutes of this State.

The allegations in charge 3 of the petition are that the defendant solicited and obtained bribes from certain large taxpayers of Logan County under the guise of endorsements on loans for his personal use, with the promise that in return for such endorsements such taxpayers would receive tax benefits from the defendant.

The allegations in charge 4 of the petition are that the defendant knowingly and willfully failed, neglected and refused to perform his duties as assessor by spending virtually no time at his office or in the performance of his official duties.

The allegations in charge 5 of the petition are that the defendant knowingly and willfully appointed and retained various persons who were incompetent to perform any duties and who possessed no qualification for the function of assessing property, and appointed and retained one employee in his office who was commonly known to be guilty of habitual drunkenness, which resulted in a substantial waste of public moneys of the county.

The foregoing charges were duly entered of record on May 16, 1969; on May 31, 1969 discovery depositions were taken; and on July 3, 1969, the defendant filed his answer, in which he denied the charges in the petition. The case was heard by the circuit court on its merits on September 15, 16, 17, 18 and 22, 1969, and upon the hearing numerous witnesses, including the defendant, testified and an exceedingly large number of exhibits was introduced in evidence.

By final order entered September 24, 1969, the circuit court found that the petitioners sustained the burden of proof as to charge 1 of the petition in that the defendant failed and refused to comply with the requirements of Section 4, Article 9A, Chapter 18, Code, 1931, as amended, and caused the valuation of property for assessment purposes in Logan County to be deficient in less than the required minimum in property classifications 2 and 4; that the petitioners had fully sustained the burden of proof as to charge 4 of the petition in that the defendant spent virtually no time in his office or in the performance of his official duties; that the petitioners sustained the burden of proof as to charge 5 of the petition in that the defendant knowingly and willfully appointed and retained two persons as deputy assessors who were incompetent and who performed virtually no duties as deputy assessors; that the defendant was not guilty as to charge 2 of the petition but the court made no specific finding against the defendant as to charge 3 of the petition. By its order the court also found the defendant guilty of official misconduct, malfeasance, incompetence and neglect of duty, and ordered the removal of the defendant from the office of assessor of Logan County effective immediately and directed the sheriff of Logan County to take charge of the office of assessor and to take and have possession of the records, papers and property in the office until such time as it should be filled in the manner provided by law.

Shortly after the entry of the foregoing final order, the county court appointed an assessor in the place and stead of the defendant.

From the foregoing judgment this Court granted this appeal upon the application of the defendant on December 8, 1969.

On January 14, 1970, this proceeding was heard by this Court upon the original record and the oral arguments and the briefs of counsel for the respective parties and was submitted for decision.

The defendant assigns numerous procedural errors in the trial of the case but the principal error relied upon for reversal is that the findings of the trial court are clearly wrong and are not supported by the evidence.

The petitioners have filed a motion in this Court to dismiss this appeal as improvidently awarded on the ground that the record of the proceedings of the trial court was not filed in this Court within thirty days from the date of the final judgment of September 24, 1969. The petitioners also cross- assign as error the failure of the trial court to make a finding against the defendant on Charge 3, the allegations of which are that the defendant solicited and obtained bribes from certain large taxpayers of Logan County.

The motion to dismiss is without merit and is overruled. The appellate procedure in this case, which is a statutory proceeding, is governed by specific provisions of Sections 7 and 6, Article 6, Chapter 6, Code, 1931. Section 7 provides, to the extent here pertinent, that an appeal from an order of the circuit court, or a judge in vacation, in removing or refusing to remove any person from office, may be taken to the Supreme Court of Appeals within the same time, in the same manner, and with the same right of suspension, and precedence, as in appeals from orders of the governor removing a State officer. Section 6 provides, to the extent here pertinent, that any officer against whom charges may have been brought, feeling aggrieved by his removal from office by the governor, may present his petition in writing to the Supreme Court of Appeals or a judge in vacation within thirty days after such removal from office by the governor. The application in this proceeding was filed in this Court October 14, 1969. By order entered October 20, 1969, this Court set the matter for hearing on November 4, 1969 on the application, and directed the Clerk of the Circuit Court of Logan County to certify to this Court forthwith all papers, documents, testimony and evidence introduced or offered at the hearing, all of which constitute the original record in this proceeding. That record was duly certified by the clerk of the circuit court and filed in this Court on November 3, 1969, and this appeal was granted on December 8, 1969.

The foregoing procedure is in accord with that heretofore followed by this Court in a removal proceeding under Article 6, Chapter 6, Code, 1931, and such procedure, contrary to the contention of the petitioners, is not governed by the provisions of Article 5, Chapter 58, Code, 1931. The statutory provisions governing an appeal in a removal proceeding do not specify any time within which the original record shall be filed in this Court and in this instance the record was promptly filed and the filing of the record on November 3, 1969, before the preliminary hearing on November 4, 1969 on the application, satisfied fully the requirements of this Court under the applicable statutes in perfecting this appeal.

The statute upon which this proceeding is based, Section 7, Article 6,...