State ex rel. Cashman v. Sims

• Decision Date: 11 July 1947
• Docket Number: 9952.
• Citation: 43 S.E.2d 805,130 W.Va. 430
• Parties: STATE ex rel. CASHMAN v. SIMS, State Auditor.
• Court: West Virginia Supreme Court

43 S.E.2d 805

130 W.Va. 430

STATE ex rel. CASHMAN v. SIMS, State Auditor.

No. 9952.

Supreme Court of Appeals of West Virginia.

July 11, 1947

Dissenting Opinion July 29, 1947. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Syllabus by the Court.

1. Within its constitutional powers the Legislature may conduct investigations for the purpose of obtaining necessary or proper information to enable it to discharge its legislative functions and in so doing it may employ its usual and ordinary methods of procedure or proceed by means of any of its duly constituted instrumentalities.

2. The State Court of Claims is a special instrumentality of the Legislature, and its finding of facts in any duly authorized hearing held by it may be adopted by the Legislature as its own determination of such facts without an independent investigation conducted by it, by one of its committees, or by any of its other duly constituted agencies or instrumentalities.

3. A finding by the Legislature of the existence of a moral obligation of the State, based upon facts whaich give rise to a juristic condition, is subject to investigation and consideration by the courts; and the determination of the existence of such obligation is a judicial, not a legislative, function.

4. To constitute a valid declaration by the Legislature of the existence of a moral obligation of the State for the discharge of which there may be an appropriation of public funds in the interest of the public welfare, it is necessary as a general rule, that there be an obligation or a duty by prior statute created or imposed upon the State, to compensate a person for injury or damage sustained by him by reason of its violation by the State or any of its agencies, or to compensate him for injury, damage or loss incurred by him in or by his performance of any act authorized or required by such statute; or an obligation or a duty, legal or equitable, not imposed by statute, but created by contract or resulting from wrongful conduct, which would be judicially recognized as legal or equitable in cases between private persons.

5. An appropriation by the Legislature of public funds for a purely private purpose is beyond the scope of its legitimate powers of legislation and is, for that reason, null and void.

KENNA, J., dissenting.

Ralph L. Miller, of Wheeling, for relator.

Ira J. Partlow, Atty. Gen., Easton B. Stephenson and W. Bryan Spillers, Asst. Attys. Gen., for respondent.

HAYMOND Judge.

In this original proceeding in mandamus the petitioner, Harold H. Cashman, seeks a writ from this Court to compel the defendant, the Honorable Edgar B. Sims, Auditor of West Virginia, to issue a warrant in due form upon the State Treasurer for the payment of an award made by the State Court of Claims on November 18, 1946, in favor of the petitioner, for $2,000. The award was based upon his claim for compensation for disability resulting from tuberculosis alleged to have been contracted by him during his employment by the West Virginia Board of Control during the year 1944 as a member of the medical staff at Hopemont Sanitarium, an institution for the treatment of tubercular patients, maintained by the State of West Virginia near Terra Alta, in Preston County, West Virginia.

At its regular session of 1947, by Senate Bill No. 266, passed March 8, 1947, effective from passage, and approved by the Governor, the Legislature of West Virginia, in considering a number of claims by various persons against the State and some of its agencies, including the claim of the petitioner, adopted as its own the findings of fact of the State Court of Claims as to his claim, declared it to be the moral obligation of the State to pay the claim, and directed the auditor to issue a warrant for its payment from available funds appropriated for that purpose. Chapter 24, Acts of the Legislature of West Virginia, 1947, Regular Session. The Legislature also made an appropriation sufficient to pay the award. Chapter 27, Acts of the Legislature of West Virginia 1947, Regular Session. Following the action of the Legislature, the West Virginia Board of Control issued a requisition upon the auditor to issue a warrant for the payment of the claim and the petitioner also made demand that he pay it. By written communication to the West Virginia Board of Control, dated May 2, 1947, the auditor declined to pay the claim for the assigned reason that its payment would constitute an unauthorized gift of state funds to the claimant.

After this action of the auditor, the claimant instituted this proceeding and filed his petition for a writ of mandamus in this Court on May 20, 1947. On the day to which the rule issued upon the petition was made returnable, the defendant appeared and filed his written demurrer to the petition. On June 10, 1947, the issues arising upon the petition and the demurrer were submitted for decision upon oral arguments and briefs filed in behalf of the respective parties.

The facts, which appear from the petition and by stipulations of the parties, are not in dispute. The stipulations contain the opinions of the State Court of Claims and final orders of the State Compensation Commissioner and of the Workmen's Compensation Appeal Board. These orders denied the claim filed by the petitioner for compensation in a prior proceeding before the State Compensation Commissioner.

The petitioner, a resident of this State, is a duly licensed physician. In January, 1944, he accepted employment by the West Virginia Board of Control as a member of the Medical staff at Hopemont Sanitarium, a state institution located near Terra Alta in Preston County, West Virginia. As an incident of his employment he was required, by a rule of the American Medical Association, to remain in that position for a period of at least one year. Under the rule termination of his employment before the expiration of the minimum period would operate to bar him from rendering professional medical services afterwards at any other similar institution. He was, however, aware of the existence and the operation of the rule when he entered the institution in January, 1944. When serving at Hopemont Sanitarium he was stricken with pulmonary tuberculosis in October, 1944, before the expiration of one year from the commencement of his employment. He was disabled and made bedfast by the disease. The exact length of the period of his disability is not disclosed. It lasted for a considerable time, however, as he was confined to bed and unable to attend the hearings held by the State Court of Claims in 1946, and in the opinion of one medical witness, the doctor in charge of the sanitarium, the probable duration of his disability was from two to two and one-half years from the inception of the disease.

When he accepted employment at Hopemont Sanitarium he was in good health and he contends that the performance of his duties as a physician at the sanitarium brought on his illness. He was required to attend eighty tubercular patients, and in this work he was assisted by only three nurses. More nurses were available but the services of any additional number were not obtained because the wages paid to nurses at Hopemont Sanitarium were lower than those paid for similar services at like institutions in other States. There were not enough doctors on the staff of the institution or a sufficient number of nurses in attendance for the proper supervision of the treatment, and for the care, of eighty patients. Due to the dangerous and infectious nature of tuberculosis, which can be communicated from an infected patient to doctors, nurses, and others present, by the transfer of its germs through the air from the one to the others, recognized current medical standards required a larger staff of doctors and not less than thirty-two nurses to care for eighty patients.

According to a survey of experts the annual minimum sum of $270,000 in salaries was necessary to care for the needs of the institution, but the sum available for that purpose for one year was only $192,000. Due to inadequacy of funds the required number of nurses was not provided during the period of the employment of the petitioner. A report which dealt in detail with the conditions at Hopemont Sanitarium, based upon inspection and examination, was made by a qualified nurse experienced in the supervision of institutions of that character. Her conclusion, stated in the report, was that the medical care was excellent, the clinical material was abundant, and the physical plant was adequate, but that the nursing department, though possessed of excellent leadership, was too limited to meet the needs of the large number of patients.

The claim was twice considered by the State Court of Claims. Upon the first hearing which, because of his illness, the petitioner was unable to attend to testify in his own behalf and at which only a few of the facts detailed above were established, the claim was denied in April, 1946. Later in 1946 a rehearing was had. Upon the rehearing the foregoing facts were presented and the petitioner, though still unable to attend in person, submitted his testimony in the form of a deposition. The State Court of Claims reversed its order rendered upon the first hearing and held, by a vote of two to one, that the State of West Virginia had failed to discharge its duty to the claimant to provide him a safe and sanitary place of employment and was morally bound to compensate him for his loss of services and the suffering endured by him as a result of the disease which he contracted during the period of his employment. The minority member of the Court of Claims filed a dissenting opinion. In it he adhered to the conclusion reached by the court, in rejecting the claim on the...