State v. Chilton

• Citation: 39 S.E. 612,49 W.Va. 453
• Court: Supreme Court of West Virginia
• Decision Date: 11 June 1901
• Parties: STATE. v. CHILTON.

39 S.E. 612

49 W.Va. 453

STATE.

v.CHILTON.

Supreme Court of Appeals of West Virginia.

June 11, 1901.

SECRETARY OF STATE—SALES OF STATE BOOKS—LIABILITY FOR PRICE—SALES ON CREDIT—PUBLIC OFFICERS—UNAUTHORIZED ACTS.

1. The secretary of state cannot sell the books of the state on credit, and, if he does, he is accountable for their proceeds as if sold for cash. But he is not responsible for those books deposited in lots with booksellers for sale on commission, unless he receives the money, or is chargeable with negligence in some way respecting them.

2. A practice, for some time prevalent in the office of the secretary of state, of selling state books on credit, gives no warrant for such credit sales.

3. An agent cannot sell on credit, unless so authorized by his power of attorney, or by the fixed usage of trade in reference to the article sold, and such usage cannot prevail contrary to such power of attorney or the law, and, moreover, such usage must be brought home to the knowledge of the person affected.

4. Acts of a private agent may bind the principal where they are within the apparent scope of his authority, but not so with a public officer, as the state is bound only by authority actually vested in the officer, and his powers are limited and defined by its laws.

5. A state is not bound by the unauthorized acts of public officers. Their misconduct is no estoppel against the state.

(Syllabus by the Court.)

Error to, circuit court, Kanawha county; F. A. Guthrie, Judge.

Action by the state against William E. Chilton. Judgment for the state for a less amount than the sum claimed, and it brings error. Reversed.

E. P. Rucker, Ex Atty. Gen., and L. C. Anderson, for the State.

Chilton, MacCorkle & Chilton, for defendant in error.

BRANNON, P. The state brought an action of debt upon the official bond given by William E. Chilton as secretary of state, charging that he had sold books of the state, and failed to account for their proceeds, to the amount of $7,000, and had received taxes upon state seals amounting to $3,000, and failed to account therefor. Chilton pleaded that he did not owe the sums alleged in the declaration. Chilton tendered $6,490 as in full of his liability, which the state declined to accept. A jury was waived, and the case was tried by the court, and upon the evidence the court found that Chilton owed the state only the sum tendered, and rendered judgment for the state for the sum tendered, and the state brought the case to this court.

The bill of exceptions says that the state "offered in evidence the report of W. E. Chilton, as secretary of state, showing that he had received, including interest thereon, on account of state seals, the sum of $2,060.64, and on account of books which had been sold by W. E. Chilton the sum of $4,429.42, including interest, which two sums, with interest thereon up to this date, as claimed by the plaintiff, amount to $6,490.06; and thereupon the plaintiff offered evidence to prove that while said Chilton was secretary of state he had sold books to sundry persons, amounting to the sum of $1,82S, which said books so sold had been accounted for by the said Chilton as secretary of state, and the amounts of said sales had been charged on his books as secretary of state against persons to whom they had been sold, but that said Chilton had not received the money therefor. It is further proved that it has been the custom of the office of the secretary of state to sell books in this way to customers, and leave the accounts to be collected by subsequent secretaries of state; and that in making such sales of books on credit the said Chilton had followed the usual rule and custom, which had obtained for many years in the office of the secretary of state. And thereupon the state, by its attorney, contended that the amount of such sales, to wit, said sum of $1,828, shall be paid to the state by the defendant, but the defendant maintained that he, having not received the money for said sales, was not chargeable with said sums, and the court decided and held that under the evidence and the law the defendant is not chargeable with the amount of said sales, the proceeds of which had not come into his hands, and thereupon decided and held that the true amount of the claim of the plaintiff against the defendant was said sum of $6,400.06, to which ruling and action of the court the plaintiff objects and excepts, and prays that this, its bill of exceptions, be signed, sealed, and saved to it; which is accordingly done." The circuit court rejected this evidence offered by the state because the court was of opinion that by law the defendant was not chargeable with the amount of sales where he had not actually received the money. In this opinion we by no means concur. We hold that the secretary of state has no color of authority to sell state books on credit. If he does, he must account for the money as if he had received it. Under chapter 15, § 5, Code 1891, he may deposit with booksellers books in lots for sale on commission, and he is not accountable for them except for negligence causing loss to the state; but that is not a sale. It is not shown that such was the liability in this case. It is not shown, as it must be to exempt him from liability, that the books were put in the hands of booksellers as mere depositaries, as allowed by the statute. That is the only case where the secretary is not at once accountable where books go out of his custody. On the contrary, it is shown that he sold to sundry and divers individuals, by single books, on credit. After making such provision as to deposit of books with booksellers for sale, the Code section closes with the following separate and additional provision: "The secretary may himself sell any of said reports. The proceeds of all sales shall immediately be paid into the treasury." What could more plainly require cash sales? This court cannot give legal sanction to loose practice in a public officer, inevitably resulting in loss to the treasury, where strict accountability is prescribed by statute as well as common law. Secretary Chilton may have, in so doing, followed in the steps of predecessors in office, and made no personal gain, and meant no wrong; but it was his mere personal favor to individuals, mere unauthorized credit to them, and fosters a practice that will inevitably end in loss to the state, as would be the case in this instance, as the fact that the books were to so large an amount unpaid for indicates very strongly that the accounts for them against individuals are uncollectible to a great extent. Whether they are solvent or insolvent accounts is no matter. The state is not bound to...