49 W. Va. 453 | W. Va. | 1901
Lead Opinion
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 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 “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 two thousand sixty dollars and sixty-four cents, and on account of books which had been sold by W. E. Chilton the sum of four thousand four hundred and twenty-nine dollars and forty-two cents, -including interest which two sums with interest thereon is up to this date as claimed by the plaintiff amount to six thousand four hundred and ninety dollars and six cents, 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 one thousand eight hundred and twenty-eight dollars, 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 suph sales to-wit: said sum of one thousand eight hundred and twenty-eight dollars, shall be paid to the State by the defendant but the
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 mot 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 ease 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; (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
But it is suggested that the secretary followed the practice of his predecessors in office. The books say that an agent cannot sell on credit without authority, unless such is the usage of trade. By this usage of.trade the law means a particular thing. It means usage fixed in the commercial law, an usage recognized by
Speaking of usage, it must, to be good, be a usage of trade connected with the sale of the particular article, one authorizing
TJpon these principles we are compelled to reverse the judg-mnt, set aside the circuit court’s finding for the defendant, and remand the ease for re-trial, with direction to admit the said evidence, as it constitutes in the opinion of this Court ample ground of recovery by the State, and for further proceeding according to the principles of law above stated.
Concurrence Opinion
(Concurring):
There is not the slightest evidence offered in this case tending to show loss to the State through Mr. Chilton having followed the usual custom of his office in extending temporary credit to the State’s customers.
The sole question seems to be whether the present Secretary of State should receive the State’s money from the State’s customers to the relief of his predecessor, or whether Mr. Chilton should be required to pay over the same in the first instance and look to such customers for reimbursement. Had there not been a change of political administration the former course would have been no doubt persued, for it is much easier not to extend customary courtesies to our political opponents than our political friends, especially if the exigencies of politics appear to require a public exhibition of strict and unbending adherence to law broken in its letter though without apparent detriment or loss.
If Mr. Chilton extended credit alone to responsible persons neither he nor the State can lose anything thereby. If he extended credit to irresponsible persons he must bear the loss.
For this reason I concur in the reversal of this case, that there may be a full investigation and the loss if any may be placed where it ultimately belongs without further litigation.
Reversed.