53 S.E.2d 509 | W. Va. | 1948
This proceeding was brought under the provisions of Code,
The first procedural point is that the petition was not verified as is required by Code,
"(2) One of the grounds of the motion to quash is that the petition was signed with a typewriter and not personally. The statute (Code, 1931,
6-6-6 ) provides that the charges 'shall be reduced to writing and signed by a citizen or citizens of this State, and verified by the affidavit of one or more of the signers' . . . we are of opinion that the petition, so far as the signing thereof, is sufficient."
The language is correctly quoted from the South Eastern Reporter but the language of the opinion as it appears in 120 W. Va. at page 125 is very different. There it reads: *629
"One of the grounds of the motion to quash is that the petition was signed 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. * * *".
Of course, where a difference appears between an opinion appearing in the South Eastern Reporter and the same opinion as it appears in our official reports, this Court is obliged to adhere to the West Virginia Reports. It will be observed that the official report refers to Code,
The next question is whether in the absence of a formal written denial the allegations of the petition are to be taken as true, requiring the removal of the defendants from office. This is entirely a statutory proceeding and there is little or no precedent concerning the required procedure. The statute, after requiring that the charges be reduced to writing and that a summons issue against the person who is sought to be removed, returnable to a certain day, provides that he shall appear and answer the charges on the day to be named in the summons. While we are of the opinion that a proceeding of this nature for the expulsion of public officers should not be entirely shorn of dignity and formality by a complete departure from the general rules governing legal proceedings, we do believe that the removal of a public officer from his position should not be in the nature of a judgment by default. We are of the opinion that material charges contained in the petition must be proved regardless of whether denied by answer or not. Consequently there was no error in the appearance of the defendants in answer to the summons and the demand that *630 the charges against them be proved and in the Circuit Judge of Roane County proceeding to hear the charges in the absence of an answer in writing.
The defendants below now say that the petition should be dismissed because the petitioners have not proved the allegations contained therein that they are voters of Roane County as required by Code,
The remaining questions for decision we believe are reduced to four which we will attempt to clarify in the following statement.
The record shows that during the fiscal year 1946-47 the five defendants were members of the Board of Education of Roane County and that during that year Opie Hunt was engaged in the general merchandise business in the Town of Walton and that he there sold and delivered for use in their respective hot lunch programs to the principals of the Walton High School and of the Walton Graded School certain groceries and supplies, the sale prices of which aggregated for the school year $2,913.50. Hunt's statements for these supplies were not sent to the principals of these schools but were forwarded to the board of education and paid by it by means of drafts drawn on the Sheriff of Roane County and payable from the "general current expense fund" of the board of education. It is shown that Hunt received the money in payment of these drafts. It is also shown that the money so spent was in no way a part of the tax return of the State of West Virginia nor of any of its governmental *631
units, but was a part of a fund contributed by the Federal government in sponsoring a hot lunch program, available to all our public schools at that time. Since the principal question raised by the defendants turns upon whether Code,
Emphasizing that we are speaking from the showing made by this record largely through the testimony of Mr. Kenneth Shaffer, County Superintendent of Schools of Roane County and Secretary of the Board of Education since July 1, 1946, the beginning of the fiscal year in which the circumstances here involved arose, it would seem that participation in what will be called the hot lunch program of the Federal government was optional on the part of the institutions to which participation was available. If the school elected to take part a charge for the lunches was established, in this instance nine cents with milk and seven cents without. The charge was collected only from the students who could pay and those that could not pay were served without charge. The money actually collected seems to have been spent in the purchase of supplies for the lunch program under the direction of the principal of the school involved. Since some of the children did not pay, the amount collected did not pay for the necessary supplies. How this money was treated as a matter of bookkeeping does not appear from the record. The difference between the total cost and the amount collected by the school involved was represented by charge accounts carried on the books of local merchants in the name of the school, statements of which were sent to the board of education and certified to the State Department of Education by its secretary with the approval of the State supervisor of the school lunch program, upon a form prepared by the State Department of Education and called "Claim for Reimbursement". *632 Attached to the claim were the detailed statements of the local merchant who had sold the supplies in question to the local school, the aggregate of which equalled the amount of the claim. Since these statements remained unpaid to the local merchants in the actual method of operating the hot lunch program the claim was treated as a direct application for payment by the merchant himself and was not a claim for reimbursement to anyone. The State Department of Education forwarded the claims to the Federal authorities and received a remittance with which to pay what was the entire amount remaining unpaid on a state wide basis. This fund was distributed by the State Department of Education to the different county boards of education by deposits to their credit with the sheriffs of the various counties in the board's current expense funds and the unpaid bills were met by drafts drawn by the local boards of education on that deposit. According to the showing of this record it was under this method of operation that Opie Hunt received cash and pecuniarily benefited from the drafts of the Roane County Board of Education of which he at the time was a member.
The provision of Code,
"It shall be unlawful for any member of a county court, overseer of the poor, district school officer, secretary of a board of education, supervisor or superintendent, principal or teacher of public schools, or any member of any other county or district board, or for any county or district officer to be or become directly or indirectly, pecuniarily interested in the proceeds of any contract or service, or in furnishing any supplies in the contract for, or the awarding or letting of, which as such member, officer, secretary, supervisor, superintendent, principal, or teacher, he may have any voice, influence or control." * * *
The material contentions of the defendants are, first, that the section just quoted covers only funds administered by boards of education in their official capacity as such, and consequently that it does not cover Federal money going through their hands pursuant to the terms *633
of a Federal statute; second, that the money in question was not paid out by the board of education pursuant to a contract such as is contemplated by the statute in question under the holding of this Court in Myers v. Nichols,
Not only are the questions here involved of first impression in this jurisdiction but diligent search has failed to reveal a dependable precedent in other jurisdictions. An examination of the Federal statute (42 U.S.C.A. § 1751-1760) creating the lunch program shows that Federal agencies are charged with the duty of keeping the funds devoted to the hot lunch program under surveillance and their misappropriation beyond question would constitute a Federal offense. The Federal statute requires that the amount received by a state from the Federal appropriation be matched by the recipient. This was done in this State by Chapter 11 Acts of 1945. When and how the State and Federal funds became in fact mingled does not appear. However, in our opinion the fact that a part of the fund is to be regarded as Federal money as long as it can be identified as such does not prevent the application of Code,
On the second point having to do with the necessity of a contract required by the specific wording of Code,
As to the third question involving whether or not the contracts of Hunt were corrupt and involved moral wrongdoing, we believe the simple answer is that his conduct was unlawful because forbidden by statute or was malum prohibitum as distinguished from malum in se. Membership of a board of education is a matter of high public trust charged with the most sacred governmental duty known to us. The office should be filled by persons of the highest character procurable and our Legislature has undertaken to throw safeguards around that office in order that the discharge of its high responsibilities shall be jeopardized as little as possible. Code,
So much for the case presented as against Opie Hunt. The other four members of the board of education were not proceeded against for the violation of Code,
The five members of the board of education are also charged with having employed in December, 1946, one Edgar S. Tomer as a teacher of Institutional on-the-Farm Training Program for Veterans, the petition taking the position that at the time of his employment Tomer was an incompetent because on October 17, 1944, the County Court of Roane County had appointed Bernice Tomer, his wife, his committee, and that the committee had never been discharged nor the order revoked. In answer to this charge, several young men that Tomer had instructed, two of his co-instructors and his family physician unqualifiedly testified concerning his mental capacity and efficiency as an instructor. There was no proof to the contrary. The appointment of a committee is not conclusive as to the competence of the subject to earn a livelihood or to engage in varieties of employment. If the actual showing concerning the particular individual is satisfactory, as here, it cannot be held that his employment was misconduct in office. Furthermore, it is not shown that the board of education had actual notice of the appointment of a committee for Tomer and in the matter of employment they are plainly not charged with constructive notice. In addition to what has been said, Code,
On the basis of the foregoing the order of the Circuit Court of Roane County dismissing this proceeding is reversed and the case remanded with direction to that court to enter its order removing Clee Allen, Elmer Walker, Opie Hunt, H. D. McKown and Ralph Daugherty from office as members of the Board of Education of Roane County.
Reversed and remanded.