State ex rel. Koontz v. Smith

• Decision Date: 12 December 1950
• Docket Number: No. 10308,10308
• Citation: 62 S.E.2d 548,134 W.Va. 876
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. KOONTZ, Tax Com'r, v. SMITH et al.

Page 548

62 S.E.2d 548

134 W.Va. 876

STATE ex rel. KOONTZ, Tax Com'r, v.SMITH et al.

No. 10308.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 1950.

Decided Nov. 14, 1950.

Dissenting Opinion Dec. 12, 1950.

Syllabus by the Court.

1.An action of debt may be maintained on an official bond which provides for a penalty certain in amount, and which bond contains collateral conditions upon the performance of which the obligations of the bond may be discharged or upon the non-performance of which the penalty of the bond may be invoked.

2.While an exhibit may not be filed as a part of and in aid of a declaration in debt, the purported filing thereof in aid of such declaration does not make the same subject to demurrer, where the declaration, without the aid of such exhibit, is otherwise sufficient and alleges a good cause of action.In such a case, a purported exhibit will be treated as surplusage.

3.In an action of debt, instituted by the State, at the relation of the State Tax Commissioner, under the provisions of Section 30, Article 8, Chapter 11 of the Code, in which recovery is sought from a county official, for the use and benefit of the county, on account of alleged illegal expenditures of county funds, in the course of his duties as such official, a declaration which fails to allege that such illegal expenditures were wilful on the part of such official, is fatally defective on demurrer.

Burns Stanley, Asst. Atty. Gen., King S. Kearns, Asst. Atty. Gen., for plaintiff in error.

Thomas S. Moore, Charleston, for defendant in error.

FOX, Judge.

This is an action in debt instituted by the State of West Virginia at the relation of Clarence H. Koontz, State Tax Commissioner, for the use and benefit of the County Court of Wayne County, against William Bascum Smith and The New York Casualty Company, a corporation, to recover certain moneys alleged to have been appropriated and illegally received by William Bascum Smith, as increased salary as a Commissioner of the County Court of Wayne County, amounting to $50 per month, for the months of March, 1943, to December, 1944, both inclusive, aggregating the sum of $1,100.Such sums were allegedly appropriated and received by the said William Bascum Smith under the supposed authority of Chapter 22, Acts of the Legislature, Regular Session, 1943, increasing the salary of a Commissioner of the County Court of Wayne County from $75 per month to $125 per month.It is alleged in the declaration, filed in the action, that such action on the part of the said Smith was in direct violation of the provisions of Section 38, Article VI of the Constitution of this State, which, among other things, provides that: '* * * Nor shall the salary of any public officer be increased or diminished during his term of office * * *.'

The defendant, William Bascum Smith, was elected a Commissioner of the County Court of Wayne County for a term beginning January 1, 1939, and ending December 31, 1944, and served in that capacity for the full term.At the beginning of his term he executed an official bond for the faithful performance of the duties of his office, with The New York Casualty Company as his surety, and the defendants in this action are sued as principal and surety.The conditions of the bond so executed read as follows:

'The condition of this obligation is such: That, Whereas the above bound William Bascum Smith was duly elected to the office of County Commissioner of the County of Wayne, State of West Virginia for the term of six years beginning on January 1, 1939, and ending on January 1, 1945, and until his successor shall be duly elected or appointed and qualified.

'Now, if the said William Bascum Smith shall faithfully perform his official duties as such County Commissioner, then this obligation to be void and of no effect; otherwise to be and remain in full force and effect.'

At the beginning of his term as commissioner, his salary as such was fixed by statute at $75 per month.On March 2, 1943, by Chapter 22, Acts of the Legislature, Regular Session, 1943, the salary of a commissioner of the county court of said county was increased to $125 per month, and the Act was made effective from passage.Thereafter, the defendant was paid $50 each month as an increase of the salary which existed at the time of his original qualification as such county commissioner, and was so paid for each month from March, 1943 until December, 1944, both inclusive, which payments he accepted.It is a fair legal presumption that he participated, along with the other members of the county court, in the use of public funds of the County of Wayne in a manner prohibited by the Constitution of this State, and it is certain that he accepted the same and used them for his own purpose.We are unable to separate the two acts.

On March 24, 1947, this action was instituted in the Circuit Court of Wayne County, the declaration filed on that day, and process issued made returnable to April Rules, 1947.The action was instituted by the State Tax Commissioner under the provisions of Code, 11-8-30.The declaration, by way of inducement, avers the election and qualification of the defendant Smith to the office aforesaid, and the execution of the official bond aforesaid, and alleges as a breach of the conditions thereof, the use of public funds to pay to said defendant Smith the increased salary of $50 per month for the period aforesaid, which was alleged to be in violation of Section 38 of Article VI of the Constitution of this State.On July 14, 1947, an order was entered in the Circuit Court of Wayne County transferring the said action to the Circuit Court of Cabell County, and following the transfer to the latter court, separate demurrers were filed to the declaration by the defendants, which demurrers were, on November 26, 1947, sustained, with leave to amend, and an order entered on January 10, 1948, making such ruling on said demurrers effective.A written opinion was filed stating reasons for the court's ruling, which opinion was made a part of the record.On December 6, 1948, plaintiff filed an amended declaration to which there were filed separate demurrers on the part of each of the defendants, and on January 15, 1949, these demurrers were sustained, for the same reasons given in the rulings on the original declaration, but the action was not dismissed, and there was no final order in the case.Later, a writ of error to said order, sustaining said demurrers, was granted by this Court, but on hearing on said writ in this Court, when it was discovered that there had been no such final order, said writ of error was dismissed as having been improvidently awarded.SeeState ex rel. Koontz v. Smith, W.Va., 57 S.E.2d 532.The case was remanded to the Circuit Court of Cabell County for such proceedings as the parties in interest might be advised to take, and on remand, the plaintiff declining to further amend his declaration, a final order was entered in the action that the plaintiff recover nothing against the defendants, which, as we construe it, amounted to a final order in the action in favor of the defendants and against the plaintiff.This order was entered on May 6, 1950, and on July 3, following, we granted this writ of error.

There having been an amended declaration filed in the case, and it being sufficient in itself without resorting to the original declaration, we will treat the action as pending upon the amended declaration.This, it appears, is the proper procedure.SeeLove v. Virginian Power Co., 86 W.Va. 393, 103 S.E. 352;Gasber v. Coast Construction Corp., W.Va., 60 S.E.2d 193.

The defendants, in their demurrers, each asserted, as a ground therefor, that an action of debt will not lie for the recovery of money on a bond with collateral conditions, contending that an action of covenant or assumpsit was the proper remedy therefor.As this contention goes to the very right to maintain the action, we think it proper to dispose of it at this time.We think the contention cannot be maintained.Code, 55-8-2, provides that: 'An action of debt or assumpsit may be maintained on any note or writing, whether sealed or not, by which there is a promise, undertaking, or obligation to pay money, if the same be signed by the party who is to be charged thereby, or his agent. * * *' The obligation on the part of Smith and his surety was, in the event of Smith's breach of duty as commissioner of the county court, to pay a certain sum of money, and it is settled law that an action of debt always lies for the recovery of a fixed and specific sum of money, even though the same might be recovered in an action of covenant, or in an action of assumpsit.Hitherto, we have not heard called in question the right to maintain an action of debt on a sealed instrument for the payment of money, or for that matter any other instrument by which a promise is made to pay a specific sum of money.Aside from the statute, and what we understand to be the universal practice in this State, we think the right to maintain an action of debt on the bond herein is supported by Reynolds v. Hurst, 18 W.Va. 648;andState ex rel. Miller v. Baker, 111 W.Va. 302, 161 S.E. 564.

The amended declaration assumes to file as an exhibit therewith the official bond, and the demurrer thereto filed by the Casualty Company sets this up as a ground of demurrer.It is true that an exhibit filed with a declaration may not be used in aid thereof, but, in our opinion, the declaration, without the exhibit, sufficiently alleges a cause of action, and, therefore, the attempted filing of an exhibit therewith may be treated as surplusage.

When we examine the amended declaration, filed in the case, we find it alleged that at the time Smith entered upon the duties of his office, he was entitled, under the law, to receive as compensation for his service the sum of $75 per month, and that one of the obligations of his bond was that h...