dissenting:
The trial court based its judgment of guilt principally, at least, on the alleged violation of Code, 7-3-3, as amended, relating to sale of county or district property by public auction, where “the sale of any one item” is of greater value than one thousand dollars. This Court places its holding not on such a violation but on the single ground that defendant was guilty of “malfeasance” in office. The only basis in the testimony on which such a holding could be founded relates to the sales of livestock described in the majority opinion. Admittedly, no valid sales were consummated, for the reason that the proposed sales were not ratified by the county court. Therefore, the only possible questionable conduct or wrongdoing on the part of defendant relates to his ne*360gotiation of the proposed sales. It seems to me, and appears to be made clear by the majority opinion, that if the proposed sales were by the defendant intended to be on the condition, express or implied, that they should be valid only upon confirmation by the court, the defendant did nothing unauthorized or wrong.
There is no question that the county farm whereon the livestock had been previously kept by the county court had been leased to the Case Farm Machinery Company, and that that company was expecting and insisting on immediate possession of the farm and was entitled thereto. Frank Heiner, one of the three members of the county court, was asked: “Did you vote to abandon the farm?” He answered: “No. We never took a vote on it. We discussed it and decided or agreed that we should abandon the farm.” It was testified to in effect, and not denied, that the members of the county court, as well as Mr. Cabell, for twenty seven years superintendent of the farm and who participated in the closing of the sales as between Shively and the purchasers, all understood and agreed that the livestock would necessarily have to be sold for the purpose of delivering possession of the farm to the lessee. Illustrative of such testimony is that of Vinson DeVilbiss, a member of the county court: “Q. Prior to that time [date of sale] had there been any meetings of the Cabell County Court concerning those cattle? A. Well, I don’t think there had been any formal meeting of the court concerning the sale of the cattle. Q. Had there been any discussions by and between the members of the court? A. Yes. Q. Was the respondent, Mr. Jim Ellis, present at any such discussion or meeting? A. Well, I think so, yes.” Neither the leasing of the farm nor the right of the lessee to such possession is questioned. In these circumstances, the defendant, as president of the county court, undertook to negotiate the sale of the livestock. I say, “negotiate” the sale advisedly for the reason that I believe the evidence establishes conclusively that the defendant intended that any sale made by Shively should not become valid or binding until ap*361proved or ratified by the county court, though the burden was on the petitioner to prove, at least by a preponderance of the evidence, that such was not a fact. Realizing that my view of the testimony is not in accord with that stated in the majority opinion, I must necessarily quote extensively from statements of several witnesses relating to such controlling fact.
Mr. Shively testified: “Q. I will ask you, Mr. Shively, if Mr. Ellis didn’t tell you that these cattle were to be sold subject to the approval of the county court? A. It was my understanding it would have to be approved by the county court, or sold — Q. (Interrupting) Or it was no sale? A. Yes, sir.” He also testified: “Q. Was it distinctly understood by you that in the event that the different sales were not ratified by the county court that the stock was not to be ultimately sold and would be returned? A. I understood it that way, yes, sir.” He further testified, in answer to questions asked by counsel for petitioner, that “I had an understanding if something went wrong or if the whole thing didn’t go through with or, I don’t know how you would want me to put it, that the men would voluntarily release their stock. In other words, you might say it was on sort of a condition that if everybody didn’t approve of it, why there wouldn’t be no argument, no question as to whether to bring it back or not. Q. That understanding you have just referred to, is that the one you had with Mr. Ellis? A. That’s right. That’s right.” The majority opinion points out no evidence in contradiction of these clear statements, and I find none. In view of such statements, it may be immaterial as to what Shively actually told the purchasers concerning the necessity of confirmation of the sales by the county court, since that would constitute action of Shively beyond the control of defendant, and was not even attempted to be proved as being within the knowledge of defendant. The testimony of the purchasers, however, clearly corroborates the testimony of Shively.
The only purchasers of livestock questioned as to whether there was a definite understanding between *362Shively and such purchasers as to the return of the livestock in the event the sales were not confirmed by the county court, were Graham, Sullivan and Hunter. Graham was asked and he answered the following questions : “Q. I would like to ask you this: were you under the impression that in the event that this sale was not ratified by the county court that the cattle would have to be returned? A. Yes, sir. Q. You were under that impression? A. Yes, sir.” He was asked on redirect examination by petitioner, and answered the following questions: “Q. I believe you replied to a question asked by Mr. Quinlan that you at some time were under the impression that the sale would not be final until confirmed by the county court. Now, when were you under that impression ? A. I believe that is what he did say. I don’t know just what the conversation was about. I bought the cattle in good faith and that is all there is to it. Q. Are you testifying that at the time you did buy Mr. Shively made mention of the fact that the sale was to be later confirmed by the court? A. That’s right. Q. Was that before or after you had delivered your money to him? A. Well, that was before.”
Sullivan was asked the following questions and gave the following answers: “Q. I will ask you whether or not it was your understanding that if the county court did not ratify this sale — or the sale of cattle to Banks, Graham, yourself, and Werner, that the sale would not be completed and the cattle would have to be returned? A. Well, I understood that * * Hunter, who purchased part of the livestock from Sullivan, was asked the following question, to which he gave the following answer: “Q. Was it your understanding that in the event that Sullivan couldn’t get title to these cows or that they reacted that they were to be returned? A. Yes, sir.”
In view of such unanimity of witnesses and uncontra-dicted testimony, I can not possibly reach the conclusion that defendant in any wise exceeded his authority or committed any official misconduct amounting to malfeasance. The only basis I find in the testimony, or in the *363majority opinion, which possibly tends to support the conclusion of guilt, rests upon inferences unwarrantedly drawn from the facts relating to the return of the livestock by the purchasers, on request and information to the effect that the sales would not be confirmed by the county court. Can it not be as reasonably and logically contended that such action on the part of each and every purchaser, without question or hesitation, confirms, rather than refutes, the testimony to the effect that it was fully understood and agreed that such stock was to be returned in the event of the very contingency which happened? Sales of livestock over a period of at least twenty seven years had been consummated in the same general manner as testified to by the superintendent of the farm, a witness for, and not in the least prejudiced against, petitioner. The evidence of the other two members of the county court makes it clear that the sales in question would have been confirmed except for the matters arising after the transfer of possession of the property conditionally sold. It is not even contended that defendant received, or expected to receive, or that any purchaser or other person intended or expected to pay him, anything of value in connection with any of the transactions. All who testified as to the matter testified to the effect that the sales were made in good faith and that the prices paid by the respective purchasers were not less than the fair and reasonable value of the livestock purchased. Mention is made in the majority opinion of an offer of two hundred dollars for one cow. The offer was not made as to any cow owned by the county, and was made before the sale of the county owned livestock was contemplated, and concerning a wholly different type of stock. Mention is also made of the fact that Sullivan conditionally sold some of the stock involved at a price greater than that paid. The Sullivan sale, however, was a “time” sale, and other facts appear to show that his profit was not unreasonable. Even the majority opinion ventures that “The evidence shows clearly that, if there had been no adverse publicity which immediately followed * * * the trans*364action, at least as far as the defendant was concerned, would have remained in force and effect * * All agree, of course, that public officers should act judiciously and cautiously in the discharge of their official duties and never, in any manner, attempt to enrich themselves, in the least degree, to the injury of the public. They undoubtedly should be held to strict compliance as to all official duties. No inference is intended, of course, as to the propriety of the “adverse publicity” mentioned. Justifiable criticism is not only allowable under our form of government, but is, perhaps, the most effective weapon against those few public officials who would neglect, debase or debauch public offices. Conviction of wrongdoing, however, should not rest on criticism, just or unjust, suspicion, speculation, or mere inferences arising from assumed, unproved facts. The interest of the public, the social and civic stability of government, demand more. In transactions of such business as here involved, however, it will be agreed, I believe, that a public official must be allowed, and has, some discretion as to how and when such business should be transacted, so long as no positive rule of law is violated. In truth, it would appear impossible for county courts to function efficiently if every step of the negotiation of such a transaction as here involved must first be considered and approved by the court, duly convened, before a sale can be conditionally agreed upon. The charge of malfeasance against a public officer should not be sustained unless substantial evidence supports the charge. See State ex rel. Rogers v. Board of Education of Lewis County, 125 W. Va. 579, 25 S. E. 2d 537; Shields v. Romine, 122 W. Va. 639, 13 S. E. 2d 16; Hamrick v. McCutcheon, 101 W. Va. 485, 133 S. E. 127; Painter v. Heironimus, 97 W. Va. 579, 125 S. E. 525; Dawson v. Phillips, 78 W. Va. 14, 88 S. E. 456.
Being of the views indicated, I respectfully dissent. I would reverse the judgment of the Circuit Court of Cabell County, removing defendant from office.