# State Ex Rel. Koontz v. Smith > West Virginia Supreme Court · December 12, 1950 · 134 W. Va. 876 URL: https://www.frixlaw.com/law-library/cases/9541033 ## Case - **Full name:** State Ex Rel. Clarence H. Koontz, Tax Commr. v. William Bascum Smith, Et Al. - **Court:** West Virginia Supreme Court - **Decided:** December 12, 1950 - **Citations:** 134 W. Va. 876; 62 S.E.2d 548 - **Precedential status:** Published - **Opinion:** Dissent by GiveN - **Judges:** Fox, Given - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9541033 ## Opinion text GiveN, Judge, dissenting: I agree with the proposition of law stated in Point 3 of the syllabus, and with the final conclusion of the majority, but believe that the declaration alleges facts which clearly establish that the sums sued for were received wilfully by the defendant, William Bascum Smith. The majority opinion, as I read it, holds that the declaration is de-murrable for the reason that the word “wilful”, used in the statute, is not used in the declaration. The declaration alleges that the defendant, while acting as commissioner of a county court, “failed and neglected to pay and receive to himself only such monthly salary as was provided by law”; that the amount paid by him as such commissioner to himself as an individual over and above his salary was $1,100.00, and that the same was so paid and received by forty-three separate monthly or semi-monthly orders, the amount of the monthly pay *887 ments being $125.00 instead of $75.00, each order being specifically described and numbered in the declaration; and such payments were “illegal, unlawful and improper.” In my opinion these allegations sufficiently show that defendant “wilfully” participated “in an illegal expenditure” of public money. Assuming the allegations to be true, as we must on demurrer, the actions of defendant could not have been otherwise than wilful. The cases relied upon in the majority opinion merely hold that such a pleading must state every fact essential to the cause of action. I agree, of course, that that is necessary. Here, however, the question is not whether a fact essential to a cause of action is absent, but whether a fact essential to the cause of action may be alleged in language other than that used in the statute. Code, 56-4-37, provides that “on a demurrer (unless it be to a plea in abatement), the court -shall not regard any defect or imperfection in the declaration or other pleading, whether it has heretofore been deemed misleading or insufficient pleading or not, unless there be omitted something so essential to the action or defense that judgement, according to law and the very right of the cause, cannot be given. * * *” Great liberality in a pleading should prevail under this statute. In Grass v. Development Co., 75 W. Va. 719, 722 , 84 S. E. 750 , it is stated, at page 722: “The sufficiency of a declaration indefinitely stating a good cause of action can not, with us, be tested by demurrer, but only by a demand for a bill of particulars containing a more specific statement of the cause imperfectly averred as the basis for recovery. Sec. 46, ch. 130, Code; Clarke v. Railroad Co., 39 W. Va. 733 , 742; Transportation Co. v. Oil Co., 50 W. Va. 612 ; Jacobs v. Williams, 67 W. Va. 377, 380 ; Gartin v. Coal & Coke Co., 72 W. Va. 405 . * * *” And further on the same page: “* * * For,'while the rules of good pleading require certainty in the averment of the material facts relied on, only such circumstantial accuracy is necessary as will reasonably afford notice of *888 what is intended to be proved. Certainty to a common intent is all that is required. If intelligible to. a person of ordinary understanding, and sufficient to afford him, the court and the jury the means of determining what is intended, the pleading is sufficient. Moreover, in respect of matters peculiarly within the knowledge of defendant, he can not be heard'to complain, unless the averments are so uncertain as not to disclose the essential elements of the cause of action he is required to answer, or are so vague and indefinite that they can not be said to state any cause of action sufficient to warrant a recovery. * * *” In 41 Am. Jur., Pleading, Section 65, it is stated: “The common-law rule that pleadings are to be construed most strongly against the pleader is abrogated in many jurisdictions by statutory provisions or rules of practice which specifically provide that in the construction of any pleading, for the purpose of determining its effect its allegations should be liberally construed with a view of substantial justice between the parties. Contrary to the common-law rule, under the rule of liberal construction every reasonable intendment and presumption must be made in favor of the pleader, and the pleading must be. fatally defective before it will be rejected as insufficient, it being the controling purpose under the operation of this rule to try all questions on their merits.” Moreover, I cannot agree that Code, 11-8-30, is the only statute vesting the State Tax Commissioner with authority to institute an action of this nature. Article 9 of Chapter 6 of the Code, derived from Chapter 33, Acts of the Legislature, 1908, authorizes the office of chief inspector and supervisor of public offices and makes the State Tax Commissioner, ex officio, the holder of that office. Section 7 of the Chapter and Article of the Code above referred to, after providing for examination into all financial affairs of every public office of the.State, provides, in part: “* * * If any such examination discloses misfeasance, malfeasance or nonfeasance in office on the part of any public officer or employee, a certi- *889 iied copy of the report shall be filed with the proper legal authority of the taxing body for such legal action as iS proper in the premises. Refusal, neglect, or failure on the part of the proper legal .authority of the taxing body to take prompt and efficient legal action to carry into effect the findings of any such examination, or to prosecute the same to a final conclusion, shall give to the chief .'inspector the right to institute the necessary proceedings, or to participate therein, and to prosecute the same in any of the courts of the State, to a final conclusion.” In this connection it must be noted that both the original and amended declarations filed in this action allege that the State Tax Commissioner sues for the use and benefit of the County Court of Wayne County after that body failed and neglected “to authorize the Prosecuting Attorney of Wayne County to institute these proceedings against the defendants, * If then, this action be brought under this statute, I cannot believe that the element of wilfulness need be present. Nor .these reasons, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9541033. Public record. Not legal advice.