State v. Chilton.
Decision Date | 11 June 1901 |
Citation | 49 W.Va. 453 |
Parties | State v. Chilton. |
Court | West Virginia Supreme Court |
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. (p. 460).
A practice for some time prevalent in the office of the Secretory of State of selling State books on credit gives no warrant for such credit sales, (p. 460).
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, (p. 461).
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. (p. 462).
A state is not bound by the unauthorized acts of public officers. Their misconduct is no estoppel against the state, (p. 462).
Error to Circuit Court, Kanawha County.
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. Pucker, Ex-Atty. Gen., and L. C. Anderson, for the State.
Chilton, MacCorkle & Chilton, for defendant in error.
Brannon, President:
The State brought an action of debt upon the official bond given by William E. Chilton as Secretary of State charging thaihe had sold books of the State and failed to account for their proceeds to the amount of seven thousand dollars, and had received taxes upon State seals amounting to three thousand dollars, and failed to account therefor. Chilton pleaded that he did not owe the sums alleged in. the declaration. Chilton tendered six thousand four hundred and ninety dollars, 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
The circuit court rejected this evidence offered by the State because the court was of opinion that by law 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, section 5, Code 1891, he may deposit with book-sellers 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 depositories, 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: 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; (It is not and cannot be charged that he did) 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 great extent. Whether they are solvent or insolvent accounts is no matter. The State is not bound to look to the purchasers of the books. It cannot be required to go into the various counties before justices to collect these small debts here and there over the State. The secretary let the books go from the State's possession, and must account for their prices. He cannot sell without cash payment. Who can construe this statute to mean anything else? Did the legislature mean anything else? Did it mean to let a secretary sell books all over the State, and compel the State to hunt up purchasers or sue them before the justices? An agent of even an individual...
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