Wysong v. Walden 1

• Decision Date: 09 April 1948
• Docket Number: No. 8689.,8689.
• Citation: 52 S.E.2d 392
• Parties: WYSONG et al. v. WALDEN et al.1
• Court: West Virginia Supreme Court

52 S.E.2d 392

WYSONG et al.

v.WALDEN et al.¹

No. 8689.

Supreme Court of Appeals of West Virginia.

April 9, 1948.

[COPYRIGHT MATERIAL OMITTED]

Syllabus by the Court.

1. Under Code 1931, chapter 6, article 6, a member of a county board of education may be removed from office for various reasons, including-official misconduct, malfeasance in office, neglect of duty and the wilful or negligent violation of any of. the provisions of Code 1931, chapter 11, article 8, as amended and re-enacted by Chapter 67, Acts 1933, 2nd Ex. Session.

2. "While charges for the removal of a public officer need not be set out in the strict form of an indictment, they should be sufficiently explicit to give the defendant notice of what he is required to answer and to enable him to make due preparation to contest and disprove the particular act or acts constituting the alleged offense charged against him." Syllabus 3, Sharps v. Jones, 100 W.Va. 662, 131 S.E. 463.

3. Where a candidate for public office, which carries with it appointive powers, prior to election, in consideration of a substantial contribution to a campaign fund promises the contributor that, in event of the former's election, said contributor will be appointed to a public position and, later, said appointment is made in pursuance of said promise, such conduct amounts to official misconduct, or malfeasance in office on the part of the appointing' officer, for which he may be removed from office. However, the fact that a person appointed to public office had, prior to the election of the appointing officer, contributed to the campaign, will not raise a presumption of a fraudulent or corrupt purpose on the part of the appointing officer, and these facts, of themselves, are not sufficient basis for removal.

4. Members of a county board of education have a reasonable discretion in approving acts of a county superintendent of schools in the transfer of teachers from one school to another, for regulatory purposes and in emergencies. Acts, 1st Ex. Sess.1933, 8-IV-10 (3). However, a transfer, based upon an error of judgment, will not justify removal from office.

5. The fact that a county board. of education authorized the payment of salary to a person without a teacher's certificate, as required by Code, 18-7-15, but otherwise qualified, for services as a teacher, is not sufficient to support a charge of wilful and unauthorized waste of public funds by the board.

6. In a petition for the removal of members of a county board of education, a specification which avers that the board of education, in the purchase of materials, fraudulently and corruptly awarded a contract to a bidder at a price higher than that submitted by the lowest responsible bidder, is sufficient on demurrer.

7. The purchase of athletic equipment by a county board of education for the use of pupils of the county is not, ipso facto, an abuse of discretion, and does not necessarily furnish a basis for removal from office.

8. The forfeiture of a fiscal office will be declared for wilful or negligent expenditures of public money in violation of subdivision 4, section 26, of chapter 67, Acts 2nd Ex. Sess.1933 (superseding article 8 of chapter 11, Code 1931), providing thata local fiscal body shall not expend money or incur obligations, "In excess of the funds available for current expenses."

9. Where a county board of education wilfully pays attendance officers in disregard of the per diem basis provided for in Code 193-1, 18-8-2, such payment constitutes an illegal expenditure of money, and forms the basis for removal from office.

10. A county board of education can act only as a body, at a meeting duly and regularly called or held, and the test of the legality or illegality of a particular act is to be determined by the action taken at such meeting. The mere fact that prior to such meeting a majority of its members may have determined on a particular course, will not render the subsequent action of the board thereon illegal, if otherwise properly taken,

11. Ordinarily, a county board of education may ratify such acts of a county superintendent as it could have authorized in advance.

12. A petition for the removal of public officers and the specifications thereof may be amended. The right to amend, however, does not include the introduction of entirely new matter or the incorporation of a new and separate charge.

Error to Circuit Court, Lincoln County.

Proceeding by E. C. Wysong and others against George E. Walden and others, members of the County Board of Education of Lincoln County, to have respondents removed from office. To review rulings sustaining demurrers and a motion to quash the petition and notice, the petitioners bring error.

Reversed and remanded.

R. W. Morris and W. T. Lovins, both of Huntington, for plaintiffs in error.

Lee, Blessing & Steed, of Charleston, for defendants in error.

RILEY, Judge.

The object of this proceeding is the removal of George W. Walden, president, and S. S. McClure and J. E. Harless, mem bers of the county board of education of Lincoln County. The petition is composed of ten counts, or specifications. A written demurrer and motion to quash the petition and notice, as well as a demurrer to each separate specification, were sustained, and the proceeding dismissed. The petitioners prosecute error.

A member of a county board, of education may be removed under article 6, chapter 6, Code 1931, for various reasons, including among others, "official misconduct, malfeasance in office, * * * neglect of duty, * * *", as well as the wilful or negligent violation of any of the provisions of Code 1931, chapter 11, article 8, as amended and re-enacted by chapter 67, Acts 1933, 2d Ex.Session. Hamrick v. McCutch-eon, 101 W.Va. 485, 133 S.E. 127. " 'Misconduct in office' is any unlawful behavior by a public officer in relation to the duties of his office, willful in character." Syllabus 2, Kesling v. Moore, 102 W.Va. 251, 135 S.E. 246. The term "neglect of duty" or the term "official misconduct, " as used above, "shall include the willful waste of public funds by any officer or officers." Code 1931, 6-6-1.

The petition containing the several specifications purports to have been executed by E. S. Wysong, D. E. Lawson, L. E. Gill, Everett Adkins, and Claude Adkins, who represent themselves to be citizens, residents, voters and taxpayers of Lincoln County. Their respective names at the end of the petition are written in typewriter, by counsel, who signed as counsel. The pleading was verified by affidavit by three of the named petitioners.

One of the grounds of the motion to quash is that the petition was sigried with a typewriter and not personally. The statute (Code 1931, 6-6-7) provides that, in the case of the removal of any county officer, the charges shall be reduced to writing, and the same "may be preferred, * * * by * * * any five or more voters" of the county. Counsel, as attorneys, are officers of the court. So persons who come into court by counsel may be said to have signed the pleading themselves. Such being the case, we are of opinion that the petition, so far as the signing thereof, issufficient. The demand in specification 6, of the petition, for the refund of moneys alleged therein to have been illegally expended, has no place in a proceeding of this nature. It is surplusage and should be stricken. The allegation does not, however, render the petition demurrable. The cases cited by counsel to support the contention that the petition is multifarious apply to bills of complaint in equity.

We now come to a consideration of the several specifications. The claim is made that they are all too vague, and with the exception of Nos. 3 and 7, do not attempt to charge the violation of an existing statute. "While charges for the removal of a public officer need not be set out in the strict form of an indictment, they should be sufficiently explicit to give the defendant notice of what he is required to answer and to enable him to make due preparation to contest and disprove the particular act or acts constituting the alleged offense charged against him." Syllabus 3, Sharps v. Jones, 100 W.Va. 662, 131 S.E. 463. In accord: Painter v. Heironimus, 97 W.Va. 579, 125 S.E. 525; Myers v. Nichols, 98 W.Va. 37, 126 S.E. 351; 46 C. J, 998, sec. 183.

Specification No. 1 charges that Dennis Roy, prior to the general election held in 1934, contributed a sum of money in excess of $600.00 to the Republican campaign fund, with a fraudulent understanding, agreement and contract that the respondents, George W. Walden, S. S. McClure and J. E. Harless, would, if elected to the board of education of Lincoln County, elect him, the said Roy, as superintendent of schools of said county; that after election and qualification, the respondents, because of, and pursuant to, the fraudulent understanding, agreement and contract before mentioned, did so elect Roy to said office. In other words, it charges a sale of office. Such a transaction is unquestionably against public policy. The right of appointment is not the property of the respondents, constituting a majority of the board.. And such officers have no right to barter the office or to dispose of it. It is merely a political power entrusted to them, to be exercised, not to be sold. Hager v Catlin, 18 Hun., N.Y., 448. Contracts to procure appointment to office are void. Mechem's Public Offices and Officers, p. 231, sec. 351. But, say respondents, a public officer is not subject to removal for acts committed before his entry into office, citing 22 R.C.L., 560, sec. 279. Assuming, as a general proposition, that the foregoing is a correct statement of the law Speed v. Detroit, 98 Mich. 360, 57 N.W. 406, 22 L.R. A. 842, 39 Am.St.Rep. 555; Campbell v. Police Com'rs, 71 N.J.L. 98, 58 A. 84; Com. v. Shaver, 3 Watts & S.Pa., 338; Carlisle v. Burke, 82 Misc. 282, 144 N.Y.S. 163, it is quite evident that the charge in the instant case does not come within...