34 S.E.2d 585 | W. Va. | 1945
Lead Opinion
This mandamus proceeding was instituted by the State at the relation of Roy H. Adkins, Administrator of the Estate of Roy Herbert Adkins, deceased, for the purpose of having the Auditor required to approve a requisition addressed to him by the State Road Commissioner and based upon a general appropriation in the amount of $3500.00 in favor of the relator embraced within the 1945 Act of the Legislature known as "The Budget Bill". It is the relator's position that the appropriation was made to discharge a finding of the Court of Claims upon a claim filed by the relator in order to recover damages for the death of his decedent allegedly caused by the nonfeasance of the State Road Department. The reason for the Auditor's refusing to issue his warrant in compliance with the requisition and five similar requisitions is stated by him in a letter to the State Road Commissioner as follows: "I must respectfully decline to pay these claims for the reason that there is no law defining negligence alleged in these cases as actionable negligence. In the absence of a general statute permitting such action there is no basis for recovery. * * *". In declining to honor the requisition the Auditor was exercising the power conferred upon him by Code,
The relator's decedent was killed on the night of January 26, 1941, when the automobile in which he was riding *788 with five others went over a precipitous bank near the hard surface of State Route 61 above the town of Deepwater in Fayette County. The relator contended before the Court of Claims that the death of his decedent, and that of the five others in the car with him; was the proximate effect of the failure of the State Road Commissioner to install and maintain guard rails, road markers and a center line in order to render the road reasonably safe for the traveling public. Personal representatives of all who lost their lives in the accident filed claims for a total of $60,000 and the Court of Claims approved recoveries in each case, heard together, by a divided Court in a total of $21,000, or $3500.00 each. This finding was followed by the appropriation and requisition developing the controversy now before us. This proceeding therefore presents the question of what effect is to be given to a monied finding of the Court of Claims followed by an appropriation of the same amount to the petitioner and a requisition upon the Auditor in that amount drawn by the department against which the claim was filed.
In order to establish his claim as one within the jurisdiction of the Court of Claims under Code,
The testimony taken before the Court of Claims, as disclosed by its two opinions made part of this record by stipulation, established the fact that there were no road signs, center lines or guard rails at the turn of the road where the car in which relator's decedent was a passenger went over the embankment. No living person saw the accident so that it is not shown by direct proof, as appears from the opinions of the Court of Claims, that a guard rail, if there, would have prevented the automobile from wrecking or that road signs or center lines would have been heeded as warning. However, assuming that a guard rail would have prevented the car from going over the cliff, is it either practicable or reasonable to place the duty upon the State of going beyond maintaining the roadbed in reasonably safe condition and to guard against dangers that arise outside the traveled way and due to conditions not encountered by persons who stay on the road? In many instances the State has done just that, but not in the discharge of a fixed duty. Whether to provide a safeguard for the unwary and those who may be forced from the traveled way by the carelessness of others, whatever may have been done in that respect was done in the exercise of a discretionary power, and not as a required performance on the part of the State.
However, the question raised by the Auditor's letter does not control in this matter. In our judgment this case is to be decided as resting upon a legal principle far more basic, which we believe may be stated plainly.
Did the Legislature, by including the amount of relator's claim in the "Budget Bill", determine that it, supported by a finding of the Court of Claims, is a moral obligation resting upon the State so as to avoid the principle invalidating appropriations of public moneys for private use otherwise?Woodall v. Darst,
As expressly provided in the Act of its creation, the Court of Claims is not a judicial body, but its function is entirely legislative and recommendatory. Code,
We think it unnecessary to discuss the effect of Section 35 of Article 6 of our Constitution, and whether that provision is intended to prevent causes of action or grounds of relief from arising against the State or simply to prevent their enforcement against the State, leaving the question regarding the existence of causes of action in court to be dealt with by the common law rule to the effect that they do not arise as against the sovereign. 29 Am. Jur. 288. *791
Returning to what we regard as the question upon which the decision here turns and not attempting to dispose of a number of the questions briefed and argued because, in our opinion, they are not relevant, we believe the question of whether the Legislature has declared this claim to be a moral obligation of the State of West Virginia is decisive. The Legislature has not so stated unless placing the item in the Budget Bill can be so applied. The wording of the bill in that regard is as follows: "Adkins, Roy H., Admr. of Estate of Roy Herbert Adkins, Jr. deceased — $3500.00." The Legislature did not express its judgment concerning the existence of a moral obligation on the part of the State, either in the affirmative or negative, unless that is a matter that may be arrived at by implication from the fact that it did appropriate. We think that the statement of the question of whether a moral obligation of the State may be acknowledged indirectly requires no discussion, but that necessarily a declaration of that consequence requires a distinct and express enactment based upon its own conclusion of fact, stated by the Legislature preferably in an enactment separate and distinct from the appropriation bill that carries the grant.
Since it nowhere appears that the Legislature found the relator's claim to be a moral obligation of the State of West Virginia, the peremptory writ will be refused.
Writ refused.
Concurrence Opinion
I concur in the opinion prepared by Judge Kenna, both as to the result, and, in general, with the views expressed therein, but I would not rest the decision solely on the failure of the Legislature, by specific enactment, based on its own conclusion of fact, to declare whether or not a moral obligation exists to pay the claim asserted by the relator. I would go to the heart of the issue presented, and base the decision upon what I conceive to be a proper basis on which it should rest, namely, that the failure *792 of the State Road Commission to install and maintain guard rails and danger signals, and provide and maintain a marked center line at the point of the accident here involved, is not negligence on the part of the Commission on which it can be said that a moral obligation arises therefrom for which the Legislature has the right to appropriate public funds.
It is settled law that the Legislature may appropriate money for a moral obligation where some public purpose is served; but it is equally well settled that it may not appropriate public funds for a private purpose. Within constitutional limits, the Legislature is vested with very broad power in the appropriation of public funds, and only in extreme cases will Courts interfere with the exercise of such powers. What is a public or a private purpose is, ordinarily, within the discretion of the Legislature to decide; but in case of abuse of that discretion may become a judicial question. InWoodall v. Darst,
"Whether an appropriation is for a public, or a private, purpose is a judicial question; but if it does not clearly appear from the act of appropriation that it is for a purely private purpose, the court can not so decide. If any doubt exists as to whether it is for a public or a private purpose, the court must uphold the legislative act."
The Legislature may not declare that a public purpose which is clearly a private one. It cannot, by its mere fiat, make black white. Ohio Oil Co. v. Wright,
In the case before us, unless a moral obligation is shown to exist, the challenged appropriation must fall. In the peculiar situation here presented no moral obligation can be said to exist, unless we hold that there was a non-conformance of some specific duty resting upon the State Road Commission, furnishing a basis for the contention that the failure to perform such duty was negligence. A moral obligation to appropriate money may arise in other ways, but not in the case under consideration. *793
Therefore the question is: Was the failure of the State Road Commission to install and maintain guard rails and danger notices at the point of the accident, and to mark, at the same place, the center line, negligence of any kind or character? I do not think that it was. In the first place, no statute requires the Commission to install and maintain guard rails, notices of danger, and to paint center lines, at any point on any state highway, primary or secondary, and no decision of this or any other Court, which is cited or can be found, places that duty on the State. The case of Wells v. County Court,
I am authorized to state that Judge Lovins concurs in the views herein expressed.