Boggs v. Board of Ed. of Clay County

• Decision Date: 07 April 1978
• Docket Number: No. 13824,13824
• Citation: 161 W.Va. 471,244 S.E.2d 799
• Court: West Virginia Supreme Court
• Parties: Frances Alice BOGGS, an infant, etc., et al. v. The BOARD OF EDUCATION OF CLAY COUNTY, West Virginia, et al.

Page 799

244 S.E.2d 799

161 W.Va. 471

Frances Alice BOGGS, an infant, etc., et al. v. The BOARD OF EDUCATION OF CLAY COUNTY, West Virginia, et al.

No. 13824.

Supreme Court of Appeals of West Virginia.

April 7, 1978.

Dissenting Opinion May 16, 1978.

Syllabus by the Court

1. County commissions (formerly county courts) are not instrumentalities of the State of West Virginia such as to bring them within the constitutional immunity from suit of W.Va.Const., art. 6, § 35.

2. W.Va.Code, 17-10-17 (1969) which makes county commissions (formerly county courts) liable to suit as a result of injury occasioned by reason of any road or bridge under their control being out of repair is constitutional.

3. County boards of education are instrumentalities of the State of West Virginia, created by statute in furtherance of a State purpose mandated by W.Va.Const., art. 12, § 1, receive substantial funds from the State, and are under such direct State control and supervision as to bring them within the constitutional immunity from suit of the State of West Virginia established by W.Va.Const., art. 6, § 35.

DiTrapano, Mitchell, Lawson & Field, Robert W. Lawson, III, Charleston, for appellants.

Wayne King, Clay, for appellees.

NEELY, Justice:

This appeal requires us to reexamine the doctrine of governmental immunity as it relates to county commissions and county boards of education. The case arises from an accident in which an infant child fell from a footbridge while traveling to school in Clay County. The infant, Frances Alice Boggs, and her father, Dennis S. Boggs, as next friend, filed suit in the Circuit Court of Clay County against the County Court of Clay County ¹ and the Board of Education of Clay County, both of which governmental bodies, it was alleged, maintained control of the footbridge. The circuit court dismissed the complaint, with prejudice, on the basis of the doctrine of governmental immunity asserted by the defendants. We affirm the circuit court's ruling that the Board of Education is immune from suit, but we reverse the ruling that the County Court of Clay County enjoys the same immunity.

On October 30, 1973 Frances Alice Boggs was seven years old and a second grade pupil at Bomont Elementary School in Clay County. On that day Frances boarded a county school bus in front of her home. She and other pupils were later discharged from the bus on State Secondary Road 1 at a point which required them to walk across a wooden footbridge to reach the school building. Apparently, the school bus could have driven closer to the school building by crossing a vehicular traffic bridge but did not do so that day.

While walking across the footbridge, Frances stepped on a broken board and fell into the creek below. As a result of the fall, Frances suffered injuries including a broken left arm, a bruised kidney, and bruises and contusions over much of her body.

The complaint alleged that the infant plaintiff's injuries were caused by the negligence of the defendants, the County Court of Clay County and the Board of Education of Clay County, in failing to keep the bridge in repair and allowing its use by school children without sufficient warning or protective devices. The infant plaintiff sought damages for personal injury, and her father sought special damages for medical expenses and the loss of his daughter's probable earnings during her minority. On October 23, 1975 the defendants asserted the doctrine of governmental immunity by filing a motion to dismiss the complaint for failure to state a claim. As noted above, the circuit court granted this motion and dismissed the complaint with prejudice.

I

The appellants rely on W.Va.Code, 17-10-17 (1969) to establish that the county court is subject to suit arising from the bridge accident. ² Code, 17-10-17 (1969) states that:

Any person who sustains an injury to his person or property by reason of any road or bridge under the control of the county court . . . being out of repair due to the negligence of the county court . . . may recover all damages sustained by him by reason of such injury in an action against the county court . . .

With respect to matters within the scope of this statute the Legislature has clearly limited the county court's right to raise the shield of governmental immunity, and we hold that the statute applies in the case before us to make the county court susceptible to suit.

Our application of Code, 17-10-17 (1969) depends on its constitutionality, a question we must squarely face. If the source of the county court's governmental immunity is in the common law, then the Legislature would certainly be entitled to limit that immunity as it sees fit. If the source is W.Va.Const., art. 6, § 35, however, then the Legislature's statutory limitation of governmental immunity would be unconstitutional.

The language of W.Va.Const., art. 6, § 35 is simple ³ but determining the proper extent of its applicability is indeed complicated. Given a multitude of governmental objectives, and the seemingly limitless number of agencies and instrumentalities created to accomplish them, it would be futile to establish rigid criteria governing the application of constitutional sovereign immunity to all conceivable situations. Stating definite standards for entitlement to such immunity would easily dispose of the instant case, but might create more problems than it would solve. The better approach is to undertake a functional analysis of recent well-reasoned immunity cases in an effort to extract some principles which can help resolve the case before us. In this regard we turn to the cases of Hope Natural Gas Co. v. West Virginia Turnpike Commission, 143 W.Va. 913, 105 S.E.2d 630 (1958); City of Morgantown v. Ducker, 153 W.Va. 121, 168 S.E.2d 298 (1969); and Woodford v. Glenville State College Hous. Corp., W.Va., 225 S.E.2d 671 (1976).

Dependency upon the State, while not designated as controlling, is one important factor which has consistently been used to evaluate whether a particular governmental body may invoke the constitutional immunity of the State. The proper inquiry is "Is it the State or the alter ego of the State?" Hope Natural Gas v. West Virginia Turnpike Commission, 143 W.Va. 913 at 926, 105 S.E.2d 630 at 638 (1958). In cases where an instrumentality of government has successfully invoked constitutional immunity there has been, almost uniformly, a large degree of dependence by the instrumentality upon the State coffers for its establishment, maintenance, and operation. The elements of dependency include reliance upon the Legislature for financial support, compulsion to pay funds received into the State treasury, retention of title to property in the State's name, and reliance on a State source for the payment of debts. An examination of the sources of county revenues and the manner of county government operation reveals that none of these elements applies to county courts.

The basic funds for the operation of county courts are not appropriated by the Legislature, which must adhere to the limitations of W.Va.Const., art. 10, § 6 forbidding the State to pledge its credit for the benefit of counties. The primary source of monies for county court operation is the county's proportional share of the property tax. The property tax, while imposed by legislative action, is administered and distributed on a purely local level.

Although it is true that the Legislature appropriates some funds for counties, all such appropriations are founded upon W.Va.Const., art. 10, § 6a which is the exception and not the rule. ⁴ Provision of necessary matching funds to federal grants, permitted under W.Va.Const., art. 10, § 6a, is a practical way to give West Virginia citizens the benefit of numerous federal programs; it is not intended to open the door for the State to become primarily responsible for county finances. Mere receipt of categorical funds from the State treasury under W.Va.Const., art. 10, § 6a does not establish dependency of a large degree.

Other factors also indicate that county courts are not governmental bodies entitled to share in the State's constitutionally imposed sovereign immunity. County funds are not deposited in the State treasury but are entirely administered on a county level. The property of the county is its own. State action is not required for the expenditure of county funds or the disposition of county property.

Our analysis indicates that county courts are fundamentally independent of the State, and accordingly, for purposes of W.Va.Const. art. 6, § 35 immunity, county courts cannot be considered arms of the State. Since the governmental immunity of county courts is not of constitutional dimension, W.Va.Code, 17-10-17 (1969) is constitutional and legitimately subjects county courts to liability for claims within the scope of the statute. This can hardly be regarded as a radical departure from existing law, as this Court, without addressing the issue of constitutionality, has consistently upheld the application of W.Va.Code, 17-10-17 (1969) and its predecessors to county courts (now county commissions). Cunningham v. County Court of Wood County, 148 W.Va. 303, 134 S.E.2d 725 (1964); Petros v. Kellas, 146 W.Va. 619, 122 S.E.2d 177 (1961); Clayton v. County Court of Roane County, 96 W.Va. 333, 123 S.E. 189 (1924); Parsons v. County Court of Roane County, 92 W.Va. 490, 115 S.E. 473 (1922); Watkins v. County Court, 30 W.Va. 657, 5 S.E. 654 (1888). These cases implicitly recognize that county court governmental immunity is founded only in the common law and therefore is subject to statutory limitation.

Since we have held that Code, 17-10-17 (1969) is constitutional, that statute will prevent the county court in this case from asserting the bar of governmental immunity against the appellants' claim. It is, therefore, unnecessary to address the appellants' contention that the logic used to abrogate municipalities' common law...