City of Morgantown v. Ducker

Decision Date17 June 1969
Docket NumberNo. 12806,12806
Citation153 W.Va. 121,168 S.E.2d 298
CourtWest Virginia Supreme Court
PartiesThe CITY OF MORGANTOWN, a municipal corporation v. The Honorables Henry Lakin DUCKER, W. Lyle Jones and A. W. Petroplus, Judges of the State Court of Claims.

Syllabus by the Court

1. The Board of Governors of West Virginia University is a State agency, and, as such, is an arm of the State and, under Article VI, Section 35 of the Constitution of West Virginia, is immune from suit to enforce payment of a claim against such board.

2. By reason of the immunity of the Board of Governors of West Virginia University from suit, the State Court of Claims, under Section 13, Article 2, Chapter 14, Code, 1931, as amended, which provides, in part, that its jurisdiction shall extend to claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the State or any of its agencies, which the State should in equity and good conscience satisfy and pay, has jurisdiction of a monetary claim against the Board of Governors of West Virginia University.

3. Mandamus is the proper remedy to require the State Court of Claims to assume jurisdiction of a monetary claim against the Board of Governors of West Virginia University.

Mike Magro, Jr., Donald E. Price, Morgantown, for relator.

Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, Asst. Atty. Gen., Charleston, for respondents.

HAYMOND, President:

In this mandamus proceeding instituted in this Court in February, 1969, the petitioner, The City of Morgantown, a municipal corporation, seeks a writ to require the defendants, The Honorables Henry Lakin Ducker, W. Lyle Jones and A. W. Petroplus, Judges of the State Court of Claims, to assume jurisdiction of a certain claim of the plaintiff in the amount of $40,886.22 against the Board of Governors of West Virginia University, a corporation, for fire protection fees for the fiscal year 1966--67, assessed by the plaintiff against the board, which claim the board on November 22, 1967, refused to pay.

Upon the verified petition and its exhibits this Court issued a rule returnable April 22, 1969. On that day this proceeding was submitted for decision upon the petition and its exhibits and the demurrer of the defendants to the petition, and the briefs in behalf of the respective parties, and the brief of William E. Dixon, Harry H. Meeks, John H. Junkins and Robert H. Law, joint venturers, trading as Beechhurst Avenue Joint Venture, as amici curiae, leave to file such brief having previously been granted by this Court.

On December 20, 1967, the petitioner filed its claim against the Board of Governors of West Virginia University with the Court of Claims and on April 19, 1968, the board filed an answer in which it denied liability for the claim and refused to pay it. A hearing upon the claim was held July 11, 1968 and on November 8, 1968, the Court of Claims rendered its decision by which it disallowed the claim of the petitioner on the ground that the Board of Governors of West Virginia University was not an agency of the State of West Virginia and that the Court of Claims was without jurisdiction to consider or to approve the claim.

In connection with its decision the court, in an opinion prepared by the Honorable Henry Lakin Ducker, Presiding Judge, set forth the reasons for its refusal to assume jurisdiction and to consider the claim. A copy of the opinion is filed as an exhibit with the petition in this proceeding.

The facts are undisputed and the questions presented for decision are questions of law.

The controlling question to be determined in this proceeding is whether the Board of Governors of West Virginia University is a State agency within the meaning of Section 13, Article 2, Chapter 14, Code, 1931, as amended, and as such is a public and governmental body which, as an arm of the State, is immune from suit within the meaning of Article VI, Section 35 of the Constitution of West Virginia which provides that 'The State of West Virginia shall never be made defendant in any court of law or equity, except the State of West Virginia, including any subdivision thereof, or any municipality therein, or any officer, agent, or employee thereof, may be made defendant in any garnishment or attachment proceeding, as garnishee or suggestee.'

The petitioner contends that the board is a State agency and that a suit against it is a suit against the State which can not be maintained. On the contrary the defendants insist and the Court of Claims has held that the board is not a State agency within the meaning of Section 13, Article 2, Chapter 14, Code, 1931, as amended, and is not immune from suit under the provisions of Article VI, Section 35 of the Constitution of this State.

Section 13, Article 2, Chapter 14, Code, 1931, as amended, provides: 'The jurisdiction of the court, except for the claims excluded by section fourteen ( § 14--2--14), shall extend to the following matters:

'1. Claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the State or any of its agencies, which the State as a sovereign commonwealth should in equity and good conscience discharge and pay.

'2. Claims and demands, liquidated and unliquidated, ex contractu and ex delicto, which may be asserted in the nature of set-off or counterclaim on the part of the State or any State agency.

'3. The legal or equitable status, or both, of any claim referred to the court by the head of a State agency for an advisory determination.'

The excluded claims above referred to are claims for loss, damage, or destruction of property or injury or death incurred by a member of the militia or national guard when in the service of the State; disability or death benefit under chapter twenty-three of the code; for unemployment compensation under chapter twenty-one-A of the code; for relief or public assistance under chapter nine of the code; and a claim with respect to which a proceeding may be maintained against the State, by or on behalf of the claimant in the courts of the State.

Section 1, Article 11, Chapter 18, Code, 1931, as amended, relating to West Virginia University and its board of governors, provides, to the extent here pertinent that 'The business and educational affairs of the university shall be under the control, supervision and management of the board of governors, which shall be a corporation, and as such may contract and be contracted with, sue and be sued, plead and be impleaded, and have and use a common seal.'

Section 1a of the same article and chapter contains these provisions: 'The control of the financial, business and all other affairs of the West Virginia University and of Potomac State school is hereby transferred from the State board of control to the board of governors. The board of governors shall, in respect to the control, management and property of such institutions, have the same rights and powers and shall perform the same duties as were heretofore exercised or performed by the State board of control. The title to all property of such institutions is hereby transferred to and vested in the board of governors.'

The board of governors is a public and governmental corporation. Its members, which are nine in number, are appointed by the governor with the advice and consent of the senate for a nine year term; no more than five members shall belong to the same political party; no member may be removed from office by the governor except for official misconduct, incompetence, neglect of duty, or gross immorality, and then only in the manner prescribed by law for the removal by the governor of State elective officers; and before exercising any authority or performing any duties as a member of the board each member must qualify as such by taking and subscribing to the oath of office prescribed by Article IV, Section 5 of the Constitution. From the foregoing statutory provision it is clear that the members of the board are appointive public officers and that with respect to the business and affairs of the West Virginia University the board of governors acts for and in behalf of the State of West Virginia and in so doing exercises the sovereign power and authority of the State.

Though the title to all property of the university is vested in the board of governors the board holds such property in trust for the State and not as a separate or independent corporate entity. Previously and until 1947, the title to the property of the university was in the State board of control and the action of the Legislature by statute at different times in transferring the title to public property from one State agency to another indicates that the particular agency vested with the title at any time holds the property for the State which is the rela and beneficial owner, for if the particular agency vested with the title to the property were an agency separate and independent of the State the transfer of the title could not be made by action of the Legislature but instead could be made only by a conveyance by such separate or independent entity. Moreover, the board of governors is entirely dependent on the Legislature for its financial support as the governing body of the university and all its departments. Moneys received and administered by the board of governors are public moneys and such moneys, whether derived from admission fees to athletic contests, from tuition fees, from medical and hospital services, and from appropriations by the Legislature, are public moneys. State ex rel. Board of Governors of West Virginia University v. Sims, 134 W.Va. 428, 59 S.E.2d 705, and when accepted, received or collected by the board must be paid into the State treasury and credited to the proper fund as provided by Section 2, Article 2, Chapter 12, Code, 1931, as amended, and can be withdrawn from the proper fund in the State treasury only upon a warrant issued by the auditor...

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33 cases
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    ...Treasury "Moneys paid to or held by [a] [u]niversity are state funds." Rodriguez, 543 F. Supp. 2d at 533; see City of Morgantown v. Ducker, 168 S.E.2d 298, 301 (W. Va. 1969) ("Moneys received and administered by the board of governors are public moneys."); State ex rel. Board of Governors o......
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