*1 Fox, Judge, dissenting:
Fоr reasons stated at length my dissent the case ex rel. Edgar Sims, Auditor, Price B. v. decided I day, on this from the dissent decision of the majority in this case.
I am Lovins, authorized state that for the same Judge reasons, joins in dissent.
A. S. Price Edgar West Virginia Auditor B. 10213)
(No. Submitted January 11, 1950. Decided March 1950. Fox, Lovins, President, Judge, dissenting. Boiarsky, Kaufman, Paul J. John & G. Hack- Kaufman petitioner. ney, General, Marland, Attorney Eston B. Ste-
William C. General, Koslow, Attorney Milton S. Assistant phenson, for defendant. Judge:
Haymond, *2 mandamus proceeding This is an in which original Price, a A. S. seeks from this Court petitioner, the writ defendant, Edgar the Honorable B. compel the a to issue Virginia, Auditor of the State of West warrant the Treasurer for the upon payment in due form the for in favor of legislative appropriation petitioner a The claim of the the State Road petitioner against $300.00. Commission, the of which the payment appropriation for made, by is for his truck caused the sud- was a over a small stream known collapse public bridge den Copen Branch of Kanawha Two Mile Creek Kanawha a County, Virginia. Upon hearing the State Court West decision, Claims, 2, 1949, one February by on a two to claim and the the sum of petitioner allowed the awarded $300.00. 1949, 277, by
At Senate Bill No. regular its session 12, 1949, July 1, 1949, March and approved effective passed Governor, in con- Legislature Virginia, West by against of claims different sidering persons number its the claim agencies, including the State and some of Commission, Road petitioner the State as its of fact the State Court adopted findings own Claims, its as to special instrumentality, creature claim, his declared to be moral pay- to issue a and directed the Auditor warrant purpose. funds for that appropriated ment from available 1949, Session. Chapter Legislature, Regular Acts pay- also made an for the Chapter of the claim in the amount of the ment award. 9, Acts Session. Follow- Legislature, Regular in- petitioner ing this action of the Road Commission of the State representative formed “necessary pay State Auditor would day 1949.” After July, award after the first sometime attorney, his communicated date the petitioner, and demanded of the claim. payment the defendant dated attorney petitioner, July letter to By “that 1949, the Auditor refused for the reason payment except cannot for services ren- pay money out dered, materials, This claim is goods or land used. based tort, em- on the of the State I do not under the ployees compensable feel West Constitution.” Virginia Auditor,
Payment having peti- been refused tioner instituted this this Court on original proceeding 20, 1949. The defendant filed his de- September written 11, 1950, murrer to the issues petition January and on petition arising upon the and the demurrer were submit- ted for decision in behalf of the respective briefs parties.
The facts claim is upon which the based and the find- them, of the court ings respect adopted of claims with *3 the are set forth in the of the court opinion claims, are the and incorporated in are shown petition, claims, in the evidence taken the court of before which matters, a part is of the record in As all proceeding. to except a and disagreement petitioner represen- between weight tatives of the State Road as to the Commission accident, the load on the truck at the the facts time are not disputed. 1948,
During year the petitioner engaged was near cutting Whittington Copen timber on lands Hill on County, Branch of Creek in Kanawha Two Mile Kanawha and in cut hauling logs he had to saw mill converting located several miles away purpose doing them into lumber for markets. In so nearby sale he transported the timber trucks which were driven (cid:127)over a across the This bridge woodеn located stream. was under the and the bridge supervision control Commission, instrumentality State Road an of the State. By effect, statute then and in force and now all inspect bridges Road Commissioner to required con- under the control of the commission and to promptly demn, bridge close and such repair any which is found unsafe, to be and the State Road Commission is required post maintain, to all bridges at each end of over which has jurisdiction, notices clearly legible indicating travelers road safe weight the maximum load or upon such at pass bridge over one time. Sec- 4, 40, tion Article Chapter Section 35. Article of the Legislature, Acts Extraordinary First Session. The bridge was out unsafe condition was repair not known to the petitioner his who oper- ated his be- mishap trucks without some time fore the gave accident which rise to his claim. On one side of the bridge a wooden cross or stringer beam served aas had rotted at one end. support Though various residents of neighborhood complaint had made representatives of the the con- concerning commission dition of bridge, inspected it had not or repaired been and no relating notices to the maximum safe load or weight pass that could posted over it had been for several years bridge before the collapsed damaged prop- erty of the petitioner. 24, 1948,
On June petitioner, a truck of carrying a load of logs, speed bridge driven at a was low by an employee petitioner. stringer, A sixteen feet end, broke, length which had rotted suddenly at one causing bridge collapse throwing the truck from the bridge into the stream where it overturned. As a result the truck an damaged amount in excess carry truck was licensed to load of three $300.00. tons, testimony but the and a petitioner witness in his behalf is that load on truck at the time accident, consisting logs of sixteen twelve *4 eighteen inches in circumference to eight and twelve in feet length, containing they of lumber feet which measured, 2,233 weighed pounds according to a standard scale of seven weight pounds per foot. The State Road Commission contended the truck was overloaded and that the lumber on it weighed eight seven tons the witnesses this did not gave who estimate measure weight of the their statement but based weigh logs they saw water which logs of the their view upon the weight to testimony relating The after wreck. not over- the truck was clearly that of the load shows evidеnce the Upon the collapsed. bridge loaded when condition of the that “the unsafe of claims found court knowledge, was claimant had no bridge, about which there- the State is accident, and of the proximate cause facts and circum- of all the bound, in view morally fore for his loss.” claimant stances, compensate to assigns, defendant In of his demurrer support is un- (1) substance, these grounds: grant amounts to gift, as a mere constitutional X, Article Section of the State violation credit void; and is null and Virginia, of the Constitution of West bridge of a state maintenance (2) the construction and the there can that reason function and for governmental are a to, compensate obligation no valid moral his prop- resulted to damages petitioner (3) the bridge; condition of such from the defective erty fail is based petitioner claim of the facts upon which compensate obligation to disclose moral claim is based (4) the facts the petitioner; using the risk assumed petitioner show collapse cause of its the proximate and that bridge (5) moral truck; no valid on the the overload recovery claimant because compensate exists any proceеding defendant construction of the defective because recover prohibited bridge, road or or condition of state Code of West Vir- Chapter Article Section Road Com- the State (6) no rests duty and ginia; its jur- under bridges highways maintain mission to condition for use safe reasonably “in more than isdiction travel,” ordinary methods in the usual manner from accidents freedom guarantee does not bridges. highways travel such persons who demurrer was grounds of the first two The substance Court in by, rejected and considered urged upon, *5 178 ex Sims,
State rel. Davis Trust Company v. 130 W. Va. 90, 623, 46 S. E. 2d and in State ex rel. Catron v. 610, 465, S. E. 2d of decided at this term this cases, Court. In each of those the claim for of compensation, reason the existence of a moral obligation, was based the and upon negligence agents of an the employees agency of State while engaged the discharge governmental function and in both them this the recognized Court existence of a moral valid obligation and awarded a writ of mandamus to compel defendant, case, the the who also defendant to issue warrant the payment the satisfy the claim. binding authority Because the unnecessary again those cases it is to consider or discuss the insufficienсy obvious of either of the foregoing two grounds demurrer as a defense to claim the now under consideration in this proceeding.
The third and fourth grounds of demurrer are also with- out merit. facts the alleged petition, which true, demurrer must be taken as and established produced Claims, the evidence the Court of before clearly show the of the Road negligence Commis- sion in the failure its representatives inspect, repair or condemn bridge post or to jurisdiction, under notices indicating to travelers road max- pass imum load that could over the at safely bridge time. All imposed one these duties are stat- expressly ute, 33, 35, 8, Chap- Section Article and Section Article ter Acts Extraordinary of the First Session; and it is that of them per- admitted none formed. The facts alleged proved also show that was, been, bridge long in an had unsafe condition be- cause of the floor stringer bridge rotten beneath the of the it, which did not that condi- safely dangerous support tion had bridge reported been the representatives of the neighborhood commission who persons fact, acquainted were and that the proximate collapse bridge cause which resulted in damages truck of petitioner was the commission, agents testimony not the load on the truck. The shows clearly the truck was not overloaded and that neither nor driver over which bridge knew that petitioner had been petitioner the trucks of the driven some *6 time before the accident unsafe or that the stringer was condition; it in supported was a rotten and noth- which in ing petition proof upon in or which appears risk, contributory base or of negligence assumption by petitioner, as a his defense to claim. In Sims, 430, State ex rel. Cashman 130 v. W. Va. 43 805, 1389, 2d though held, E. A. L. R. S. 172 was the facts there that appeared, which the declaration of Legislature did not a constitute valid moral obliga- of the State and legislative appropriation, tion claim, payment being private for purpose, void, adopted was unconstitutional this Court a gen- eral rule of by obligation which valid moral may be legislative found to exist and a appropriation public may its funds be made to compensate person has a claim he can not en- who State which by force rule any provision positive law. The an- nounced in the Cashman in case, Judges, which the two dissent, concurred, stated 4 who now is in Point in these words: constitute syllabus “To a valid declara- by tiоn of the existence moral of a obli- for gation discharge there which an in public be funds the interest of the welfare, necessary, rule, as a general an obligation duty, by prior there be or a statute created or imposed upon compensate person for injury by or sustained him reason of its damage by viola- by agencies, tion the State or or compensate damage him or incurred him in injury, by loss or performance his act authorized or such required statute; or an obligation duty, legal equitable, or a or not imposed statute, but created contract resulting conduct, from wrongful would rec- judicially ognized as legal equitable private cases between
180 persons.” The stated principle just expressly recog- nized and approved, though applied, the subsequent Sims, 645, cases of State ex rel. Adkins v. 130 W. Va. 46 81; Sims, 312, S. E. State ex rel. v. 2d Bennett 131 W. Va. 13; 48 S. E. State ex rel. Baltimore and Ohio Rail- 2d Sims, 13, road v. 132 Company, 505, W. 53 S. E. 2d Va. Fox, opinions by Judge in all of were written ex Davis Trust Com- applied followed and rel. Sims, 623, 90; 2d pany v. 130 W. Va. 46 S. E. State ex rel. Sims, 610, Catron 465, v. 57 S. E. W. Va. 2d decided term; Sims, earlier and State ex rel. Jordan v. 650, 58 S. E. 2d and Saunders W. E. simultaneously Va. 58 S. 2d decided In each proceeding. just decision in this of the four cases cited, the rule of the Cashman case was applied sus- an taining appro- of a moral validity a claim priation payment for its based on officers, agents which resulted from agencies engaged the State while of a function. discharge governmental *7 case, announced in the Cashman Application rule adhered to reaffirmed as the set- again is and which now facts in ren- proceeding, of this to the this tled law the conclusion that the moral necessary ders by exist with of the State declared petitioner appropria- claim of the and the respect to the by unless prohibited for its are valid payment tion made It positive or law. principle statute applicable some Branch of Ka- bridge Copen if the over manifest that con- Creek, in unsafe and defective Mile its Two nawha the truck of damaged and collapsed at the time dition aby maintained or controlled had been petitioner, or the person corpora- or person corporation, private have controlling it would been maintaining tion so he damages sus- to the petitioner liable could be established tained, liability that such in a court of action at law an appropriate enfоrced in bridge per- If same had been competent jurisdiction. charter to by keep its required mitted, municipality aby
181 court, county a instead by repair, init out of Commission, repair, or remain to become Road been, was, had at the long bridge unquestionably accident, legal liability or the city time resulted could not county court 40, denied. See 10, Article successfully Chapter avoided 1933, 17, First Acts Extraordi- Section the statute Session, which amended incorporated nary 17-9-33, appears 1931 as and now Code of Michie’s 17-10-17, Code, 1949, as serial section (9); 1597 Annotated 654, Charleston, 62 City 732; W. Va. 59 E. Cavender v. S. Court, County 472, Barbour 39 W. Rohrbough v. Va. 20 565, Rep. 925; Am. St. Wells County S. E. 45 v. Court of 102 County, 663, S. E. 472. Though W. Va. Marion or a liability municipality county of a court does not rest but results from the breach a duty respect to a highway statute with or a imposed bridge control, Rosenshine, Rich v. 30, under 131 W. Va. City Moundsville, 2d Roth 499; 283, S. E. v. 118 W. Va. Thompson 332; City Charleston, 190 S. E. v. 118 W. Va. 547; Campbell 391, City Elkins, 191 S. E. v. 58 W. Va. 220, 308, (N.S.) 52 S. 2 R. A. 159; Boyland E. L. City v. Parkersburg, 347; 78 W. Va. 90 S. E. Chapman Milton, 7 S. E. there is no difference in or in logic substance between the acts negligent and omis- of agents sions of the State Road Commission concerning Branch bridge Copen over and identical or similar agents conduct of a negligent city or county court regard which, under its bridge control if engagеd them, constitute a would breach of duty imposed statute or a city county court and render legally liable for the resultant injury damage. In each instance the maintenance and the control a public bridge require discharge of duty which arises in *8 performance the of a governmental function. The dif- ference in law between the two situations is for the by city breach or a court county of its duty to maintain bridge repair, the Legislature may impose, by and valid has imposed, statute legal for liability dam- result, for ages which the breach of such by the duty State or any of its constituent agencies, the Legislature can not constitutionally impose such liability.
There ais clear and valid distinction between the con- stitutional suit, immunity State from as provided VI, Article Section 35 of the Constitution of this and the firmly established rule that the unless has assumed liability by constitutional mandate or can and does assume valid legislative enactment, is not liable positive law for injuries negli- caused or gence other tortious acts officers, or conduct of its agents- or employees while in the engaged discharge of a gov- ernmental function. This distinction is discussed in 49' Jur., States, Am. Territories, Dependencies, Section 76, in this language:
“The statе, rule is well has- settled that unless it assumed such liability by legis- constitutional mandate or enactment,' lative is not from injuries arising liable for the negligent or other or of tortious acts conduct officers, its agents, servants, committed in the perform- words, ance of their duties. In other of re- doctrine spondeat not un- superior apply sovereign does states through less their legislative departments they assume such liability voluntarily.
“While there is authority contrary, general rule is that from for exemption liability state torts its officers and does not agents depend upon consent, state’s immunity suit without its but rests upon grounds public policy deny liability state such is based damages. sovereign It agencies, character of the state and its absence on the either of the obligations agencies, state such no ground remedy has been pro- rule general vided. Under this a state is not answerable' of, injuries by, sustained or the death prison through convict the prison officers, any voluntary assumption in the absence of liability.” agencies, constituent
The State its exer- sovereign powers performance cise its- *9 duties, in the of generally engaged govern- is a discharge mental governmental function. The character of its acts in the of its duties discharge is the same whether duties are created contract or are by imposed by constitu- statutory tional or valid provisions. By firmly virtue of the recognized established and that universally principle State and its subdivisions are not political legally liable to any damages a person result from tort com- their by agents mitted while of engaged discharge function, a governmental with principle, respect State, can or not be altered rendered inoperative by statute, by virtue the-constitutional that provision any the State shall never be made a defendant court garnishee law or as a or a a equity, except suggestee in garnishment VI, or an attachment Article proceeding, Section Virginia, Constitution West no ex- remedy by ists law it in favor of positive against any person who .officers, is or wronged damaged by negligent acts its or agents employees. situation, This to a respect claim the State or one of its agencies, constituent gives justifies rise a to and the doctrine that moral obli- gation, theory based and fair justice treatment of one of its remediless legally subjects who has suffered or at injury damage sovereign, the hands of his may declared voluntarily by to exist in his favor and an may funds be volun- made tarily separate independent branch the State Government to pay Legisla- his claim when the ture finds it to be fair and such just approves as which, instance, subject action re- every judicial by this Court in a proper proceeding view determine A validity. valid moral obligation amounts to this and claimant, consequence, In only. who is without a positive legal remedy and who seeks compensation means of moral obligation, does sue the State or make it a in any defendant court of or law or make equity, defendant proceeding recovery In purpose. seeking relief which may may not be afforded means demand, moral a claimant can not obligation, can Legislature directly, only request, creature and special recommendation of its instrumen- Claims, him compensa- the State Court of tality, grant he claims. This the a matter tion which may a matter of not do. right, and not as grace, Darst, E. 71 W. Va. 77 S. E. 80 S. See Woodall v. S.) B, (N. 83; 1278; R. Ann. 367, 44 L. A. Cas. Slack *10 Jacob, If he no 612. his claim is denied has further 8 W. Va. refused, If he remedy. it is and its is granted, payment in a sustaining validity proper of still has burden Sims, Cashman v. in this Court. State ex rel. proceeding 430, 805, 2d A. L. 43 S. E. R. 1389. 130 W. Va. of in of the fifth insistently urged, support ground It is to ex- demurrer, may no moral be declared obligation by reason of regard ist with to the claim of the petitioner 40, of the statute, 37, 4, Article Acts Chapter Section Session, which Extraordinary pro- First Legislature, any in not made a defendant vides that the State shall of the defective damages recover to because proceeding This bridge. road or construction or condition state gives bridge merely to a road or respect statute with state general provisions to the broad legislative expression Constitution that the State Section 35 of Article VI in defendant shall never be made Virginia West in suggestee as except garnishee court law or equity and operates a or an attachment garnishment proceeding to general legislative policy relating aas declaration of a matter law. It should bridge positive a road or state arising that a claim from the be construed to mean is bridge, a state road or which defective condition of law, can provision positive under any unenforceable a obligation valid moral not be made the basis voluntarily find and declare exist the Legislature the State. Legislature, or its instru- special In presenting to Claims, a for con- Court of claim mentality, a the claimant obligation, on the of moral sideration basis in a a defendant proceeding not make the State does meaning statute recover within a judicial, relates to not a legislative, proceeding for that purpose. The action of the Legislature and of the court in claims approving claims rejecting presented either involves the of a legislative, exercise not a judicial, In function. finding declaring, by the enactment of a statute, obligation that moral based facts which give juristic condition, exists, rise to Legislature performs legislative function, de termination of the validity of such obligation, which in-' volves the constitutionality statute, a judicial, is not a legislative, function. State ex Cashman rel.
130W. 43 E. Va. S. 2d 172 L. R. A. 1389. The action of the claim approving against the State damages, which can not be enforced law, recovered by positive it to be a moral declaring and in making an appropriation for its payment, legislative nature; in its but when 'the person whose the moral favor obligation has been de- clared and the made, pay has been a judicial institutes proceeding Court, to sustain *11 such action of Legislature, the against a defendant who challengеs unconstitutional, it as null and void and re- to obey fuses the legislative direction to issue warrant for the payment of the appropriation claim, to satisfy of the question validity obligation of the moral and of the of the legality for its is payment judicial and involves the exercise a judicial function. other Any conclusion render would unconstitutional statute which creates the Court of Claims em- and powers it to juris- consider and claims allow within the it, diction conferred special as a upon instrumentality of Legislature, and to their recommend approval and payment by Legislature, 20, Chapter Acts of the Legis- lature, 1941, Regular Session, as 39, amended by Chapter 1945, Acts the Legislature, Regular Session, and would condemn as erroneous the numerous decisions of this which, Court Jacob, 612, since Slack v. 8 W. Va. have recognized Legislature declare a power to moral of the State and to appropriate funds with it, by required positive to when to do so is not which pay If, however, 37, Ar- Section just equitable. and law but 1933, 40, Ex- 4, Legislature, First ticle Acts Chapter Session, having as been should be considered traordinary claims by apply intended originally the defective con- by the State for caused against which bridge, cоndition of state road or struction or obligation, a moral its opera- means of only be satisfied effect, claims, have respect tion and such been 20, enactment of Acts subsequent Chapter removed 1941, Session, amended Regular Legislature, Session, Regular Acts of the Chapter statute, creates the State Court Claims general state, against “for the claims purpose considering provisions thirty-five, which because of the of section state, statutory article six of constitution and restrictions, limitations, inhibitions cannot be heard juris- court law or- Section and extends its equity,” demands, diction to “Claims and and liquidated unliqui- dated, delicto, ex ex contractu and the state or as a common- agencies, sovereign of its state wealth and conscience equity good discharge should Section 13. pay.” demurrer,
The sixth State does not ground guarantee freedom from accidents to who travel persons under its upon bridges highways supervision control it to duty and that no rests maintain them reasonably “in more than condition for use in the safe of travel” by ordinary usual manner and methods does alleged not to the and for that apply petition, facts Of reason is not well founded. course State does guаrantee freedom from accident who travel persons no bridges highways duty, there is imposed law, reasonably them in even a positive keep *12 them; reason, safe that no upon condition travel is or a justice, why in in it should not moral logic recognize them in the duty Legislature, by which its keep repair positive law, county and courts requires municipalities in and and regard bridges highways bridges to streets and under their A control. person who killed as the result of the of a failure or a a city county keep city court or a county controlled or in bridge highway and repair, personal can, whose representative law, re positive cover a damages from or a county court for municipality death, his wrongful just would be as killed if effectively his death resulted from the same defective condition of a or bridge highway a under control of the State. That no personal representative decedent has cause of action against legal right the State and no to recover from it a is not sound or sufficient reason deny the power to declare voluntarily a moral in of a obligation favor citizen whose life it has through agents taken voluntarily its to make an as for its compensatiоn wrong. contrary, just On situation such as that outlined and other situations in similar whether principle, they arise from a contract or a tort, from form the very basis doctrine of a moral obligation upon part recognition the State and justify its the courts. As stated Davis this Court State ex rel. Trust Company Sims, 90, 46 S. 2d Judge W. Va. E. Fox concurred, repeated State ex rel. Bennett v. 48 E. 2d opinion S. prepared by Court, him: “The general recognized principle, in the absence of a valid statute or constitutional pro vision assuming liability it, a State is imposing officers, for the tortious agents liable acts its relates to the exist employees, legal liability, and denies wrongful ence of as a liability such result acts representatives. of its It does not operate prevent recognition arising of moral of the State officers, predicated the misconduct agents employees, such as would be held to con judicially of a legal duty private stitute breach cases between persons.” to the claim alleged respect
The facts proved general petitioner bring it within justifies rule of the Cashman and sustains case *13 188 a obligation a moral State and of valid
declaration the claim on payment legislative appropriation based, is “an obliga- when there obligation such is which legal equitable, imposed by or statute duty, or a tion wrongful con- by resulting created contract or but duct, recognized legal as or judicially would be which in cases between private persons.” equitable recognition of a It Court is asserted that.the declared Legislature, moral claim for a caused payment negligence officers, agents of its with respect bridge state controlled would highway, open claims, of such door to a veritable flood would result raids and treasury would lead funds dissipation argu of the State. This only ment is unsound. It specious wholly proves is not too It overlooks the relative of a positions much. claimant injured by person who of a private is conduct injured by claimant who is similar of repre claimant, law, by positive sentatives of State. The first has an enforceable claim he wrongdoer his prosecute right can as matter of of com court jurisdiction. On the claimant petent contrary, second and, legal right has no instead proceeding a court law, must, in call reality, Legislature to com him a matter of pensate as He is purely grace. completely action, subject to its voluntary whatever If may be. just, court, his clаim is unlike still may reject it for reasons of for no policy, reason at all. His road to ultimate is filled compensation difficulty If the uncertainty. Legislature approves his claim fair as just not, or is improper, when otherwise its pay ment not be will authorized this Court. State ex rel. Sims, Cashman v. 43 S. E. 2d 1389; Sims, L. ex A. R. rel. Adkins v. 130 W. Va. 645, 46 81; E. 2d ex rel. S. Bennett v. 131W. Va. 312, 48 E. 2d 13. Even if the S. number such claims large, becomes disproportionately comparison with the negligent number of claims under law for positive injuries, no entirely unlikely, seems such claim should well be said rejected It solely reason. that, a court many because are claims for there too number, hear, none should or allowed. Should the be heard burdensome, however, become the amounts excessive and could, would, undoubtedly put claims, all by abolishing on such claims the court of quietus *14 or by refusing claims approve pay which latter action would make impossible payment any moreover, assumes, The argument, such claim. any whatever, justification Legislature, without that the obli-, in making moral appropriations payment it, gations by safeguard declared would fail to financial and thus, effect, interest welfare State and vio- late the Constitution of Virginia. Why, may West it be asked, should this Court entertain thе assumption that a Legislature, separate and independent department Government, directly of the State to the responsible elec- which, torate the Constitution, with, vested the formation this State has exercised without distrust, power, doubt or the plenary except limited provisions, constitutional appropriating public funds, is not to be trusted is to be'regarded with suspicion power funds, in the use its to appropriate such and in duties, of its performance respect moral obli- gations It may voluntarily which declare? is axiomatic not engage that this Court can in or consider any such It is not within the assumption. province of the judiciary into the inquire motives which actuate the Legislature enacting and it always statute will be conclusively that it acted in good has faith and presumed from proper S., Law, 16 J. motive. C. Constitutional 100(a); Section Law, J., 12 C. Constitutional Section 224. In Coal and Coke Conley Avis, Railway Company v. 67 129, W. Va. 67 613, ignorance, this Court “Neither S. E. said: stupidity, nor improper motives sense corruption can be im- legislature by to the the courts. puted This rule is neces- to the sary preservation legislative province.” It is Legislature that the presumed also knows the limitations the Constitution. power by Eureka imposed Pipe 190 Hallanan, 396, 506, v. 87 Va. 105 E. Company
Line
W.
S.
265,
257
S.
42
66
grounds,
101,
reversed on other
U.
S. Ct.
intent
ed.
“Courts
fraudulent
presume
L.
227.
will
on the
corrupt purposes
will
Jacob,
10, Syllabus,
Slack
presume
contrary.” Point
v.
S. *15 430, 43 E. 172 A. L. 1389. The contention that S. 2d R. doctrine inconsistent logically should be so limited the upon misconception underlying and rests reason or case. That recognition position for its existence in obligation a moral State would sustain of the claimant an wrongful property conversion of the it to its own agent appropriated State if State if the use, reject obligation beneficial but such would entirely destroyed agent property merely injured consequence and in the State derived advantage wrоngful from act. In each instance the no sovereign; in the one subject wronged by has been his but in him and sovereign may voluntarily compensate to demon- other it not do so. No more need be said advanced ex- argument of the thus fallacy strate the utter for the doc- only that the sound basis cept the statement in any justification trine and the real for its existence only State, the just are of the situation not the enrichment subject remediless legally treatment of its equitable committed his wrong person for the which has property. or his writ, for,
For is awarded. prayed the reasons stated
Writ awarded. Fox, Judge, dissenting:
I find to concur in the decision of the myself unable I have come to the conclusion majority proceeding. this officer, that an act of an negligence servant or agent, arising out of the employee performance function, a purely governmental in connection high- with maintenance, way does not furnish a sound for a basis legislative finding obligation, of a moral on the part State, to who compensate person injury suffers his person or reason of property by such au- thorize the public funds of the State to provide payment of such I concede compensation. position departs this laid down in principles Court, certain recent decisions of this I partici- dissent, and from pated, holdings I did not latest ex rel. being Auditor, Catron v. 133 W. However, Va. at term. decided mature consid- eration of the question now convinces me that such de- cisions can not be supported logic reasoning. sound much, I think it Having stated to discuss appropriate have ques- cases which been decided this Court on tions of moral and to out point danger application principles heretofore announced to acts of on the simple negligence officers, agents, servants or of the State in con- nection the construction and maintenance of the I offer highways my the State. no apology present views, and the on the gratuitous emphasis placed position taken me in other does not affect me. I cases have not sought my responsibility, evade for those part, *16 holdings. basis,
The of supposed necessity, principle Legislature may appropriate money redeem moral obligation arises from the provisions VI, Section Article Constitution of this which now reads: “The State of Virginia West shall never be made defendant in any court of law equity, except the State Virginia, West including any thereof, sub-division or any therein, municipality officer, or any agent, thereof, or employee bemay
made defendant any garnishment or attach- ment proceeding, garnishee or suggestee.” The effect of these was, of provisions course, to close the suit, courts of the State to any action or proceeding, the purpose which would be to impose liability character, of any except garnishment or attach- follows, therefore, ment It proceedings. that should a case arise a person wherein suffers damage through an agency of the State or the negligence of its employees, only resort would be to that division of the gov- ernment control of funds, which has its public and power appropriate the same for public purpose. This is the which, basis of the moral theory with increas- ing frequency, has been advanced in recent years. has question recently
While become more important, raised in the early history it was of the State in the case Jacob, 612. The Slack appropri- to meet money ated sum the cost of removing rec- ords and archives of the State from Charleston to Wheel- Constitution, after the of our ing, shortly adoption present that: provided “The Seаt of Government at shall be Charles- ton, provided by until otherwise law.” session, at its 1875 passed an act to re- government move the seat of temporarily to Wheeling, following records, that enactment papers and archives of the State were removed to Wheeling, involving the State was expense undertaking some assume By the act removal pay. Capital, the Gov- authorized to cause suitable ernor accommodations City Wheeling several prepared government, and to remove departments *17 records and other State then property thereto of Charleston to the City City Wheeling. It was that argued provisions one Section of Article of the Constitution which provided: VI “* * * nor any Legislature shall authorize the thereof, claim or
payment created hereafter part the made, under against any agreement contract without express authority law; and all such unauthorized agreements shall be null void.”
did not authorize such a In connection, contract. that Court said: contract, “But whether it does authorize such not, it is not uncommon for persons supply government
the needs of the or its different de- contracts, partments without on the relying vol- untary justice of the State to pay reasonably therefor. And such transactions have been re- garded as not meaning within true of the said section, thirty-eighth and such voluntary pay- have ments been made the approval of all departments government. According to our understanding, section the said thirty-eighth only applies agreements claims based on or contracts made without express authority law, and the section declares such unauthorized agreements null and void. It does not apply claims predicated simple justice and. right, and never to prevent was intended the Legislature voluntarily justice doing right where the claim is not on a predicated contract made An express authority without construction, law. opposite us, it seems to would be spirit very policy itself, if provision not its letter, and would necessarily operate great injury daily evil well periodical as operations, government in its different de- fact, and would in partments; necessarily greatly embarrass, if not completely obstruct, the success- operation government, ful intended which was not said section.” It will be observed that the situation with which the dealing Court then contract, was matter of express through which the implied, State would receive bene- fits, and, which, assume, we created a moral obliga- tion to pay fair compensation for any services rendered. There was not case, involved and there is no refer- therein, ence to any obligation of the State to compensate for the negligent act of any officer, agent, servant or em- ployee the State. I think the case of Slack v. Jacobs, supra, should be interpreted as applying to the situation then presented Court, to the and not be treated as the basis for creation of a moral obligation in distinguishable *18 situations.
The next case in which the subject of moral obligation
was considered was that of
Darst,
Woodall v.
71 W. Va.
350,
The next case was that of Glover Edgar B. Auditor, (2d) W. Va. 3 S. E. That 612. awas case where had appropriated money “for full of all payment outstanding open accounts of the Athletic Department Virginia of West University, to be expended Board of Control may as the direct.” It was in developed that proceeding that the athletic department the Uni- had versity contracted debts for services and supplies fur- of the State had people accepted nished to it which the that, circumstances, benefit, held in such and was a moral declare the same to be obli- Legislature could money meet the gation appropriate State thereof. cost theory
It observed that to this up point will be of negli moral had never been to cases obligation applied character, officer, agent, on the gence part But in the case of servant State. Sims, Auditor, ex re l. Edgar Cashman v. B. (2d) 805, a claim 43 S. E. decided based alleged on of the State was
part negligence presented. Cashman, employed physician Hopemont while Sanitarium, an the treatment of institution for tubercu lar It is not clear that patients, contracted tuberculosis. any particular he based his claim upon any allegation employees, act of on the of the State or its the case did an to define present opportunity Legislature might go appropriating limits to which the funds, there held that: and it was Legis- “To constitute a valid declaration of a moral lature the the existence discharge of which there *19 in the interest an of funds public a welfare, general as necessary, rule, duty, by that there an or a obligation prior be State, or to com- statute created pensate imposed upon damage a for or sustained injury person or of by by him reason its violation by or him in- agencies, compensate of its to any or incurred him or his jury, damage performance such loss or required by of act authоrized statute; duty, legal or an statute, but created imposed by equitable, conduct, resulting wrongful contract or recognized legal judicially would be in cases between private persons.” equitable not, case, found that the facts did under In that it was announced, authorize the appropriation the rule therein enforced in that case. sought Co., ex rel. Davis Trust that of State The next case was 196
Admr., Edgar Sims, etc. v. Auditor, B. W. Va. (2d) S. E. 90. In case, the officers and agents State, in control of a prison, an permitted inmate, con- of murder, victed to have certain privileges, resulting the murder of an aged inmate, such lady by and an award of compensation, her personal representative, based upon legislative declaration aof moral obligation to pay same, upheld by Court, this on ostensibly, theory the negligence of the officers and agents State. There was a dissent from that by Judge decision Lovins. It may be that holding in that case sustained the theory that the Legislature has authority appro- priate public funds to compensate for on negligence part officers and agents the State. next case considered was ex Adkins, State rel.
Admr., etc. v. B. Edgar Auditor, 130 (2d) S. E. 81. That case involved the deаth of persons six when an automobile in they travelling were went over precipitous bank on a state highway, and it was contended that this event resulted from the failure properly construct and maintain guard along rails the highway, markers, provide a center paint line thereon at that point. It may be that these con- argued tentions involved a claim of on part Commission, State Road employees, in failing rails, to provide guard such markers and painting such case, center line. In that we held that: commissioner, “The failure of the state road the exercise of the discretion vested in him to expend public moneys, Legis- appropriated construction, lature pair maintenance and re- public highways of this to pro- rails, vide guard place road markers or danger signals, and center on paint lines paved highways, at on particular point highway does not create a moral obligation on the to compensate a person injured on such highway, resulting from allegedly such failure.” *20 It was held in that case that the failure to provide guard rails, markers, place road center on paint lines paved portion highway did not constitute negli- gence, body is stated that in opinion this making holding: say may do not mean to that situations not “We arise the failure of the road commissioner where to maintain a
properly highway, guard against accidents, road, occasioned the condition of the may positive neglect duty be treated as such as to create a moral obligation against the for Legislature which the may appropriate money to pay damages which proximately resulted there- * * *” from. But this is not such case. In Bennett, the case of State ex rel. Auditor, E. (2d) injured 48 S. Bennett was an explosion dynamite while as an engaged employee Commission, of the State Road and while on a working In this case the rule in the Cashman highway. case It there adopted applied. was held: an “Injuries sustained employee in which would in circumstances employment, the course his entail on a liability therefor, negligent private in an action employer, for a of a provide the basis declaration moral obligation on the of the State to compensate injuries, such lative for his employee justify legis- appropriation purpose.” This, course, a clear use the doctrine laid down Cashman It case. was held that did not facts Bennett, warrant madе to an'd the writ have made such appropriation which would effective was dissented, denied. Kenna and Judges Riley being that the facts and circumstances of the opinion jus- case tified the issuance of the writ. dissent,
As earlier in stated on cases based above, alleged negligence, plainly recognize referred power appropriate public funds injured in their compensate persons person property officers, through negligent acts of servants and agents, State; and the Cashman and Bennett cases, in particular, adopted that such principle appro- *21 can
priation be made if in similar litigation between pri vate persons a could recovery be had. Each member of joined Court is, who in those decisions part, re sponsible However, therefor. recent developments, evi bar, denced case at and others submitted at this term, that, convince me in so far as the rule laid down in the Cashman case creates the test for legislative appro priations cases, as in all being, that existing between pri vate litigants, the same erroneous, is ought to be re considered. A moment’s thought will convince anyone position a litigant, even if the constitutional immunity of the State from suit or action removed, were would be entirely different from that of private litigants. Private litigants have no immunity from suit as between each other. In private litigation, if it be shown that a negligent act committed, has been and in jury therefrom, results injured person is entitled to recover damages; whereas, a private between litigant and if an action between them were possible, under Constitution, our there could be no liability on imposed the State for the negligent officers, acts of its agents, servants and employees, while engaged in the perform ance of a governmental purely function. That principle was last announced by this Court in the case of Hayes v. Grove, The Town Cedar etc., 126 W. Va. E.S. (2d) 726, and recognized as settled law this State. true, This being the test laid down in the Cashman case cannot be properly applied to a case involving negligence on the an officer, agent, servant or employee the State. It may be proper apply it to other cases wherein charges negligence are not involved. general theory of the Cashman case has given rise
to the belief that the Legislature has plenary power to make to compensate funds indi- viduals who suffer reason injury damage by of the negligent officers, acts of the agents, servants and em- State; of the ployees and the claim has so far been ex- tended as to alleged include maintaining highways theory State. This is in direct con- express travention of the provisions of Section Article 4, Chapter 40, Acts Legislature, First Extraordinary- Session, 1933, (1949 Code, Michie’s 17-4-37), which reads: “The shall not be made the defendant in any pro- ceeding to recover because con- defective struction or condition of state road or bridge.”, al- though is fair to state that Section 33 of the same Article provides that: “The commissioner shall all inspect bridges any bridge state roads. If is found to unsafe, commissioner shall condemn, promptly close and repair *22 it.” The language employed is and plain simple and can- not be explained away as attempted to be done in the majority opinion, or nullified the creation of the Court of course, Claims. Of the failure to inspect bridge at reasonable intervals might be termed negligence, for which, general law, under there could no recovery be against State, both reason of constitutional im- munity action, against suit or and the rule that a gоv- body ernmental is not liable for the negligent acts of its officers, agents, servants and employees engaged while in performance of purely governmental functions.. These rules are not new. The immunity the sover- eignty being called into its own court to answer for breaches of contract for a tort fully estab- lished law, at common and principle is one of the landmarks of the law. majority
The in decision this case supports propo- person sition that while a injured through the negligent officer, act anof servant or agent, employee may not recover for such negligence, if the same- arises from his performance purely governmental function, nevertheless, the Legislature may appropriate public moneys compensate persons injured. so Of course, such a claim cannot tested in courts until the- immunity State’s from suit or constitutional action is. suit, If immunity removed. the State’s constitutional from individuals, removed, or action the right should be no recognized, recovery sue the State there could be in negligence the courts the State for acts of on the- officers, employees servants and agents, purely engaged performance gov-
State while functions, аgainst liability unless the rule for ernmental destroyed by legislative such also act negligence was otherwise; in the absence of such yet change Constitution, permit legal these constitutional our we completely nullified, by indirect meth- inhibitions to be ods, on the of a moral theory obligation.
I do not it has ever the intention of believe been power if had Legislature of this even to do so, liability employees negligence assume State, and, employees of the State particularly, Road Commission, in the construction and maintenance of this highways yet the rule announced opinion, if majority followed will to that loss of life inevitably appalling lead result. damage highway acci- property, resulting State, ought responsible to cause offi- public dents cials of the of doctrines pause application State to inevitably responsi- lead to the of full assumption bility by of State who system. are with our It is highway connected knowl- life, accidents, edge many involving times loss- *23 day of the in this State. These occurring every year are causes, in to different but may accidents be attributed they cases attributed to condition many may fairly be the the the fact that driver of an automo- highway. of The a рreclude himself does not claim negligent bile that it not his that Legislature negligence before the the the but condition of the damage, caused accident the act of some em- highway negligent caused State course, Of each case have to stand upon would ployee. facts; own far have not the experiences its so created in too strict impression Legislature the would be ordinarily prevail of application the of rules law which of are'brought the courts cases before negligence when I do not mean to reflect on the saying the State. In this recognizing I one of the “facts Legislature. merely am accept pur-. of I not as the obvious permissible life.” do opinion of the to those pose majority charge agreeing lack of confidence in to Legislature therewith with the honestly I perform duty. regret suggestion that such made, has employed been well as the in mak- language effect, In ing it. are the permitting we to in supersede the courts the determination of liability in, all cases negligence where the courts are powerless constitutional, to grant statutory relief under general to law. This amounts the of judicial exercise power the in plain violation constitutional pro- powers separate visions respecting branches of our State government. bar,
In the case at there is evidence tends on show
Road Commission failing inspect keep repair bridge where the to claimant occurred. I damage raise no question point. My on that is that the point Legisla- possess ture does not to declare power negli- gence officer, an agent, employee servant State can declaration be made the basis a of a moral claim, which, pay State to a under well recognized law, of constitutional and statutory rules decisions this Court cannot be made the subject suit, of recovery by any proceeding against action or connection, In State. I do that the Legis- not believe can, an special particular lature act benefit otherwise, implication, or person, repeal by general act general and in so embodying policy doing provision. constitutional nullify idle say proceeding It is that the case at bar effect, not, In Mahone proceeding State. Virginia, Commission State Road West 129 S. E. it was held that: Virginia “The Road Commission of West governmental agency is a direct an action subject as such is not for tort.” *24 In Road Cоmmission West Stewart v. State Vir- ginia, 117 Va. 185 S. E. was held that: W. state from immunity of the “The constitutional * * *” governmental agencies. extends to its
suit of the contend that the Auditor State does No one will function, or is not an governmental agent not perform pres- control of its funds. The having State directly is one which involves- the proceeding ent the State Auditor to rec- compel inasmuch as it seeks to from money withdraws requisition which ognize above, If cited Treasury. statutory provisions, shall not made the defend- to the effect that the State be damages to- any proceeding ant in recover because any bridge condition of State road or means defective not, through it means that the State anything, its treas- compelled deplete ‘mandamus be proceeding, claims from defective con- ury by payment arising bridge. State road or ditions application I the time has come to face anew the think alleged negligent, of moral of the doctrine of the State and its re- agencies, conduct on the on alleged negligence- to claims based spect, particularly, It may Road Commission and its employees. inhibiting the constitutional the State provision courts made the defendant being Statе, is an and should be discarded provision, unwise citi- against suits permit for one which will zens, wronged by negligent agents, conduct allegedly done, But, if this there of the State. were employees recovery negligence, long, on claims of such so could be no negli- a State is not liable for the as the rule of law that officers, servants while- agents, of its gence of a performance purely governmental in the engaged If in force. the constitutional inhibition function remains authorize removed, power rule change and to or actions suits performance- recovery so as to allow complete. full and functions would be governmental could done, claims for be set- then If that were private between disputes in the courts of the State tled But, until these- in such courts. are settled litigants *25 are changes made, it seems to me that the safe and sound rule to apply written, is Constitution as it is to apply legal rules as are settled they and established. There halfway is no position which we can take any logic either consistency; hold, law, we must as settled cannot, pretense, under any compensate citizens for acts of negligence on the of its agents and em- ployees, or to the go оther and permit extreme the Legis- lature appropriate to for money every act negligent com- by mitted an employee Legisla- which the ture may justifies think an award of compensation. This Court has attempted to retain some control this char- over acter of under appropriations theory that when a sit- uation in judicial nature, becomes it has power to over- rule finding I Legislature. do think this asserted power sufficient to control situation as is, and as it to promises now be in the future.
The questions involved in this case among are the most important with which this State is at the pres- confronted ent time. There never will be time when it will pos- sible to keep highways, bridges, including an abso- lutely safe condition. are bound happen, Accidents is evidenced continuing record of disaster pictured press day I day. do not deem a policy it wise for the State ever to assume full responsibility condition of the I highways. think the has Legislature said that accidents plainly is not liable for due to the of its highways. condition is that general law the State is not liable for negligent acts of its servants performing governmental functions. Yet enacted, the face what has and in rules, embarking the face of it is controlling legal now Court, policy, approved by allowing this com- pensation every public highways on the mishap this any degree due of State which, moment, employee, appropriate at the seems compensate for, the use funds. I think public laid in this case majority opinion course down consequences involves as it effects funds grave my I register dissent Treasury, it. protest against in this joins Judge to state that Lovins
I am authorized dissent. Sherman H. Eary, Sr.,
In the Matter of: Application Law to Practice 28, 1950. 14, 1950. March February Submitted Decided *26 Given, Judge, participating. H. Eary
Sherman proper. Merricks, Virginia Robert State Bar. West Stone, Association, A. Charleston Bar et G. al. Lovins, President: Sr.,
Sherman H. referred to as Eary, “peti- hereinafter Court, tioner,” filed that he petition praying his granted license to law. The practice petition is background; and recites that he lengthy his educational on was licensed to law this Court practice September 18, 1928; year employed by he was J. Hall Hall in an represent procuring William the said of compensation Compensation award from the State Com- missioner; $2,544.18 that he collected accrued the sum Hall; that his compensation departed for said client receipt this life eleven after approximately months check therefor.