Secretary of State v. Hanover Insurance

411 P.2d 89, 242 Or. 541, 1966 Ore. LEXIS 620
CourtOregon Supreme Court
DecidedFebruary 9, 1966
StatusPublished
Cited by3 cases

This text of 411 P.2d 89 (Secretary of State v. Hanover Insurance) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Secretary of State v. Hanover Insurance, 411 P.2d 89, 242 Or. 541, 1966 Ore. LEXIS 620 (Or. 1966).

Opinion

GOODWIN, J.

The state brought five causes of action upon a fidelity bond and appeals from an adverse judgment entered upon a directed verdict.

The issue upon trial was whether certain officers, admittedly covered by the defendant’s bond, had caused the state “a loss of money * * * through any failure of official duty * * which was the condition of the bond.

While the state, as plaintiff, has the ultimate burden of proving that it lost money through the failure of its bonded officers to perform their duties properly (to account), it may, by putting on a prima facie case, require the defendant bonding company to go forward with evidence to overcome or contradict the state’s [543]*543case. The question now before us is whether the evidence which the state offered makes out a prima facie case. If it does, it was error to direct a verdict.

The bonded officers, all in the Oregon Military-Department, were the Adjutant General, the Assistant Adjutant, and the Fiscal Officer. The substance of all five causes of action is that one or more of these officers improperly authorized expenditures of public money. Since the complaint does not charge the officers themselves with fraud or intentional misconduct, the state is proceeding on the theory that the officers must have been deceived by a subordinate.

The Fiscal Officer drew checks which were cashed against the Oregon National Guard Revolving Fund as follows:

Year Payee Amount
1957 Mess Officer $ 825.00
1958 Mess Officer 195.00
1958 Commissary Officer 907.50
1959 Commissary Officer 198.76
1959 Commissary Officer 539.95

Each of these cheeks was in payment of a claim submitted by the designated payee for “rations.” There was proof that $136.35 had been spent for rations. The remainder of the proceeds of the checks was accounted for only by the statements of the “mess officer” or the “commissary officer” who cashed them. The person making the so-called voucher in each case was answerable to one or more of the bonded officers for the performance of his duties. If a subordinate’s written statement that he spent for “rations” a state check payable to himself is an adequate accounting of public funds, then the state has proved no breach of duty in this case. If such an accounting is inadequate, [544]*544however, the state has made a prima facie case and is entitled to have the responsible officers explain why they paid the various amounts of cash to their subordinates as indicated by the check register. The canceled checks were not in evidence, but were described as “missing from the files.”

The subordinates who received the cash were not bonded but Avere, presumably, subject either to military discipline or to criminal liability, or both, if their claims were false. Each held a National Guard commission, and each was also a civilian employe of the Oregon Military Department. The evidence is not clear with reference to the capacity in which each subordinate was acting when he submitted the claims, but in either his military or his civilian capacity he was directly responsible to one or more of the bonded officers.

While the state produced evidence, by way of impeachment, which tended to show that one or more of the claims for “rations” may have been false, it was not necessary to the state’s case that the state establish the falsity of any claim or fraud on the part of ■the subordinate making the claim. It was necessary only that the state establish that the ■ public’s money had been spent and that the accounting offered in support thereof by a bonded officer failed to show that the money had been spent for a lawful purpose.

If the commissary officers followed proper-accounting procedures, they could lawfully buy or sell certain foodstuffs for cash. A proper accounting, the state contends, would necessarily show who received rations sold for cash and to whom the money was paid, or, in the case of rations purchased for cash, who sold them. In some circumstances a commissary officer could sell to certain civilians food from federal [545]*545stocks. In a sale of federal property, however, the purchaser normally would make any check for such purchase payable to the Treasurer of the United States, and not to a “commissary officer.” The state proved that the funds involved in this case were not spent for federal rations, because it showed that there were no checks payable to the Treasurer of the United States, and no receipts from the Treasurer for cash.

The other possible use of the money in a lawful manner was likewise not documented by any supporting vouchers. If the subordinates in fact used the cash proceeds of the checks to pay civilian merchants for foodstuffs or beverages, such acts might have been authorized. There is, however, no evidence that any such transactions were consummated. If such transactions are relied upon, proper accounting practices would require that the original invoices and receipts showing such cash purchases on the market be filed.

Neither the mess officer nor the commissary officer could account for more than $136.35. With that exception, their records did not show that the cash paid to them had been expended for any purpose, legitimate or otherwise. They simply filed claims for “rations.” When asked from whom he bought the rations, a subordinate officer testified that he did not remember.

There were likewise no records to show that federal rations had been sold for cash from supplies under the control of the subordinate officers or that the cash in question had been turned over to the Treasurer of the United States. A witness who had a very poor memory for specific transactions testified that in similar cases he sometimes presented claims for rations and then cashed the checks and turned the cash over to one of the bonded officers. Original documents of [546]*546account would have rendered unnecessary reliance upon such a memory.

Assuming that the bonded officers were innocent of wrong and acted in good faith when they authorized the payment of cash to their mess officer and their commissary officer, the adequacy of their accounting depends entirely upon the sufficiency of the subordinates’ claims as “verified vouchers.” Such vouchers are required by the statutes under which the bonded officers obtained their authority to spend money. ORS 397.440 (2).

A voucher, this court has held, “is a document which shows that the services have been performed or expenses incurred. It covers any acquittance or receipt discharging the person or evidencing payment by him. When used in * * * connection with [the] disbursement of moneys, it implies some instrument that shows on what account or by what authority a particular payment has been made, or that services have been performed which entitle the party to whom it is issued to payment * * Camp & DuPuy v. Lauterman, 78 Or 134, 138, 152 P 288 (1915).

A voucher that does not designate from whom the rations were purchased or carry with it the receipts for the moneys expended is no voucher. It is nothing but the subordinate’s own unsworn statement that the money claimed was spent, or would be spent, for rations.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Strombeck v. Secretary of State
874 P.2d 1366 (Court of Appeals of Oregon, 1994)
State Ex Rel. Ray Wells, Inc. v. Hargreaves
761 P.2d 1306 (Oregon Supreme Court, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
411 P.2d 89, 242 Or. 541, 1966 Ore. LEXIS 620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/secretary-of-state-v-hanover-insurance-or-1966.