Swearingen v. Parkersburg Sentinel Co.

• Decision Date: 01 June 1943
• Docket Number: 9435.
• Citation: 26 S.E.2d 209,125 W.Va. 731
• Parties: SWEARINGEN v. PARKERSBURG SENTINEL CO.
• Court: West Virginia Supreme Court

26 S.E.2d 209

125 W.Va. 731

SWEARINGEN v. PARKERSBURG SENTINEL CO.

No. 9435.

Supreme Court of Appeals of West Virginia.

June 1, 1943

Rehearing Denied July 24, 1943.

Syllabus by the Court.

Austin V. Wood, of Wheeling, and Ambler, McCluer & Davis, of Parkersburg, for plaintiff in error.

Russell Hiteshew & Adams, James S. Wade, and Wm. Bruce Hoff, all of Parkersburg, for defendant in error.

LOVINS Judge.

This is an action of libel brought by Andy Swearingen against The Parkersburg Sentinel Company, a corporation. The trial court rendered judgment for fifteen thousand dollars on a verdict for a like amount in favor of the plaintiff. The case is here on writ of error and supersedeas.

The plaintiff was a candidate for the office of mayor of the city of Parkersburg at the March, 1941, primary election. He was also a member of the city council of that city at the time the article and editorial hereinafter quoted were published. He does not complain of all the words in the article and editorial, but only those emphasized by italics in the quotations hereinafter appearing, are made the basis of this action. The defendant is the owner and publisher of the Parkersburg Sentinel, a newspaper with a daily circulation of approximately fourteen thousand copies in the city of Parkersburg and adjacent territory in the States of West Virginia and Ohio. The Parkersburg Sentinel of March 12 1941, published an article on the front page reading as follows:

"State Audit Shows City Money Affairs Mixup

Parkersburg Municipal Government Severely Criticized by State Tax Office--Began Last Fiscal Year With $16,000 Debt

The city of Parkersburg began the fiscal year 1940-1941 with a $16,007 indebtedness and facing charges that city council had transferred into the general fund, nearly twice that amount of money from sums intended for other purposes according to the annual audit of the state tax commissioner.

A copy of the audit was received at the City building January 16, but was filed away without councilmanic comment. Neither has council ever reported on findings of the audit authorized by its body last year following publication of the state's 1939-1940 audit of city finances objected to by city council at the time they were made public, on the grounds they were incorrect. According to the audit for the fiscal year just past, some $33,262.04 has been transferred into the general fund under one pretense or another, or without pretense, when it was intended for other uses.

Money Due Pension Funds

The most of this money is that due the police and firemen for their pension funds and increasing their annual compensation.

According to the state auditor's report, a balance of $8,092.91 paid into the general fund for the fiscal year ending June 30, 1940, and covering taxes collected from levies established by law for the purpose of the policemen's pension fund, is owed to and should be paid into that fund.

A second sum of $3,576.50 represents a balance due from the general fund over the same period and covering taxes collected on levies for a like purpose for firemen, and is due and should be paid into the firemen's pension fund.

Amusement Taxes

In addition to this, a total of $17,601.63 amusement tax collected has been paid into the general fund. The auditor's report shows:

'In accordance with provisions chapter 56, article 5, section 5, acts of the legislature, regular session 1937, a resolution was passed authorizing a special election to be held September 3, 1937, for the purpose of voting on an amendment to the city charter, authorizing levy and collection of an admission and amusement tax.

1. For purpose of increasing annual compensation of officers and members of police and fire departments: and

2. For such purpose as mayor and council of said City may lawfully direct.

As a result of foregoing resolution and election, an ordinance was passed effective September 28, 1937, authorizing collection of tax effective October 8, 1937. Collections for current year are as follows:

Smoot theatre, $3,979.39; Strand theatre, $2,204.65; Hiehle theatre, $3,045.31; Burwell theatre $1,790.70; Virginia theatre, $2,514.34; Palace theatre, $1,643.94; The Brass Rail, $184.42 (June 1, 1939-May 31, 1940); Parker theatre, $1,267.53 (Sept. 9, 1939-May 31, 1940); The Coliseum, $591.76 (Feb. 1, 1939-May 31, 1939); Wallace Bros. circus, $32.65; Cole Bros. circus, $21.95; Parkersburg Riding club, $7.98; Farr Roller Drome, $175.53; World's Fair shows, $36.82; Wax Museum $85.91; Exposition Train show, $17.18; Swing Dance club, $1.75; total, $17,601.63'

Also a sum of $8.80, tax redemptions' balance from the state and due the sinking fund has been paid into the general fund.

City Hospital Money

Further, the audit shows where the city council members used nearly $4,000 of City hospital receipts for transfer into their general fund.

The action is shown under the City hospital audit, headed 'transfer to general fund' with the report reading:

'March 8, 1940, voucher marked "for clerical service and supervision"--$3,973.20."'

"Inasmuch as hospital records show in addition certain normal sums for supervision and clerical services, why it would be necessary to transfer another sum of this amount to the general fund for the same purpose, hasn't been indicated.

The audit shows City Councilman Fred Cochran, in charge of the hospital, receiving his $3,000 salary from hospital receipts, and the superintendent's salary of $1,620 being paid, while for clerical services items total $1,099.68, not including keeping of record, etc., which is additional.

Traveling Expenses

Among the disbursements from this general fund, aside from the usual salaries, the state audit reports:

'Traveling expenses, H. W. Russell, $82.50; Earl Stephens, $39.50, and Andy Swearingen, $72.12'

Another record under general funds is that shown by the auditor in his report on 'classified disbursements' Nov. 13, 1939 to June 30, 1940, paving and sewer improvement funds, showing a transfer of $4,110.50, this for:

'Part-time services of city engineer and clerical services, $2,295.03

Part-time services city attorney, city clerk and other clerical services, $1,815.47.'

This is in addition to regular salaries for the city engineer, city attorney and city clerk, and salaries for stenographers for the former and assistants in the city clerk's office, shown elsewhere in the audit.

Regarding further disbursement, from the general fund, of $2,520, the auditor reported:

'Payments of $2,520 were made to the state sinking fund commission to apply on retirement of swimming pool revenue bonds and interest, but on June 3, 1939, an amount of $500 was repaid by check, leaving a balance due of $2,020. Finding: It is held that the amount of $2,020 collected from tax levies and paid the state sinking fund commission to apply on retirement of swimming pool revenue bonds and interest is not in accordance with the code and same should be paid from the swimming pool fund.'

Not Permitted by Law

Objection to the practice of writing checks in the way of blanket vouchers, which the state auditor charges the city with having done, is also made on the grounds it is not permitted by law, inasmuch as there is no way of determining what articles were purchased or whom they were for.

The auditor's remarks read:

'Disbursements in cash from the various funds cover labor, freight, express, postage, hospital supplies, traveling expenses, meters purchased, gasoline and other miscellaneous are not in accord with the following statute:

"Chapter 12, article 3, section 19, West Virginia code, 1937, provides: 'It shall be unlawful for any county court, board of education or the council of a municipal corporation charged with administration of the fiscal affairs of any county, school district, independent school district or municipality, to issue any general order for a payroll or to any persons to be disbursed or distributed by him to those who have performed the service or furnished the material for which payment is to be made, but in all such cases the order shall be made to the person lawfully entitled to such payments.'"'

Example of Violation

A violation of this is shown repeatedly, among them one in the City hospital records where there is listed:

'Cash purchases and expenses, Andy Swearingen, treasurer, $1,503.04.'

And again in disbursements from the general fund where traveling expenses are listed as 'Earl Stephens, councilman, $35.90' etc., as heretofore referred to.

Records of the water department show where council not only approved the purchase of a car for one of the water department collectors, but paid the insurance, though the audit showed the employee received the same salary as other collectors. Under salaries and labor, the audit shows:

'E. B. Elletson, $1,014.'

Under 'new equipment' for the same department, is listed 'E. B. Elletson, one 1937 Ford tudor sedan, motor 183413476-$400' and under insurance, 'policy 1273686 *** on Ford tudor, motor No. 183413476, Sept. 1 to May 15, 1940, $16.92.'

The audit shows that ex-police judge Ben Nern failed to turn over a sum of $29.20 due the city.

The report reads:

'Fines and costs collected July 1, 1939 to June 30, 1940, Ben F. Nern, ex-police judge. Balance due July 1, 1939, $29.20. Balance due June 30, 1940, $29.20', with a note:

'This balance represents costs collected on cases tried as ex-officio justice-of-the-peace.

Building Permits

Of the building commissioner's department, the auditor's report reads:

'Permits Nos. 5494 to 5499, inclusive. are not available and there is no record as to what disposition was made of them.'

The audit of the R. J. A. Boreman fund shows the city took a loss on a loan of $3,500 to Clarence Sams who gave a mortgage against his property as security,

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