Schippa v. West Va. Liquor Control Comm'n

Citation132 W.Va. 51
Decision Date16 November 1948
Docket Number(No. 10049)
CourtSupreme Court of West Virginia
PartiesAlbert Schippa v. West Virginia Liquor Control Commission

State

The State Liquor Control Commission is an agency of the State, engaged in the performance of governmental functions and duties, and, as such, is, under Section 35 of Article VI of the Constitution of this State, immune from suit.

Error from Circuit Court, Kanawha County.

Action by Albert Schippa against the West Virginia Liquor Control Commission, by way of notice of motion, to recover price paid for undelivered liquor. To review a judgment dismissing the notice of motion, plaintiff brings error.

Affirmed.

Riley and Kenna, Judges, dissenting.

Patrick J. McGwire, and Robert G. Kelly, for plaintiff in error.

Ira J. Partlow, Attorney General, and W. C. Marland, Assistant Attorney General, for defendant in error.

Fox, Judge:

Albert Schippa, plaintiff in error, instituted his action against the West Virginia Liquor Control Commission, a corporation, by way of notice of motion, in the Circuit Court of Kanawha County, on the 11th day of June, 1946, seeking the recovery of the sum of $576.00 with interest from January 11, 1943, based on a transaction by which he allegedly purchased from an employee of the defendant twenty-five cases of whiskey, for which he paid the sum of $800.00, but of which liquor so purchased only seven cases were delivered, leaving a balance of 8576.00 for which the plaintiff obtained nothing. This statement of the claim is based upon a bill of particulars, to which an affidavit was attached, filed with the notice of motion.

On the 19th day of June, 1946, the defendant appeared and filed its counter affidavit, denying that anything was due the plaintiff. On the 29th of June, the defendant filed its demurrer and special plea, which demurrer was afterwards amended on the 8th day of September, 1947. Both demurrers rely upon Section 35, Article VI of the Constitution of West Virginia, and the amended demurrer also relies upon the provisions of Chapters 4 and 5 of the Acts of the Legislature, 1935, now appearing in Michie's Code, 1943, as Chapter 60. The special plea so filed pleads the two statutes aforesaid, and asks that they be read in connection with Article VI, Section 35 of the Constitution, the effect of which plea was to deny that there was any liability on the defendant, by reason of the fact that neither said Commission nor its agents had any legal right or authority to do the act complained of in the notice of motion, that is, to make the sale of liquor out of which this controversy arises, and that the plaintiff, participating therein, could not recover thereon.

The case was heard upon the said demurrers and special plea, and on December 2, 1947, the said demurrers were sustained, and the defendant not desiring to amend his notice of motion, the same was dismissed.

The bottom question in this case is whether the West Virginia Liquor Control Commission should be treated as an arm and agency of the State, and as such immune from suit under the provisions of Section 35 of Article VI of our Constitution; or whether it should be treated as engaged in a business separate and distinct from the exercise of governmental power, usually termed proprietary, and subject to suit to the same extent as if it were a private corporation. Chapter 4 of the Acts of the Legislature, 1935, creating said commission provides that it might sue and be sued, but this provision is not important, because if it is an arm and agency of the State, a suit against it is equivalent to a suit against the State, and the provision of the Constitution aforesaid that: "The State of West Virginia shall never be made defendant in any court of law or equity. * * *" is clearly applicable, and the Legislature exceeded its Constitutional power when it authorized suits against said commission.

Since our Constitution was adopted there have been many boards and commissions brought into being by the Legislature, and many of them termed corporations, with the provision that they might sue and be sued. Generally speaking, these corporations have been treated as agencies of the State, and suits against them not permitted. In Supply Co. v. Board of Control, 72 W. Va. 524, 78 S. E. 672, it was held: "The State Board of Control is a direct governmental agency of the state; an action on a contract made by that board in the line of its state agency is in reality and substance a suit against the state itself and can not be maintained." Reference was made in that case to the case of Miller v. State Board of Agriculture, 46 W. Va. 192, 32 S. E. 1007, in which The Board of Agriculture was held to be a state agency though not incorporated. Reference was also made therein to Railway Co. v. Conley, 67 W. Va. 129, 67 S. E. 613, in which it was held that suit against a state officer could not be construed as a suit against the State; but in Miller v. State Board of Agriculture, supra, it was held that the State could not be sued by mandamus or other judicial proceedings: "As the state cannot be sued, mandamus or other judicial process will not lie against state officers or boards to compel them to execute an executory contract between an individual and the state. Though the state is not in name a party, such suit is against it, within the meaning of the provision of the Constitution prohibiting suit against the state." To the same effect is State ex rel. Gordon v. State Board of Control, 85 W. Va. 739, 102 S. E. 688. In State v. Chilton, 49 W. Va. 453, 39 S E. 612, it was held that the acts of a private agent might bind his principal if acting within the apparent scope of his authority, but that such was not the case as to a public officer, as the State was bound only by authority actually vested in the officer, and his powers are limited and defined by its laws, and that a State is not bound by the unauthorized acts of public officers, and their misconduct is no estoppel against the State.

A number of cases hold that the State Road Commission is an agency of the State and can not be sued. Among these are Mahone v. State Road Commission, 99 W. Va. 397, 129 S. E. 320; Stewart v. State Road Commission, 117 W. Va. 352, 185 S. E. 567; Watts v. State Road Commission, 117 W. Va. 398, 185 S. E. 570; Hardy v. Simpson, State Road Commissioner, 118 W. Va. 440, 191 S. E. 47. A municipality, a creature of the State may not, in the absence of express statutory authority, be sued for acts performed in a purely governmental capacity. Hayes v. Town of Cedar Grove, 126 W. Va. 828, 30 S. E. 2d 726. But against a corporation, created by the State, which acts in a proprietary capacity, and in which the State exercises no governmental powers, and in cases where, under our statute, a municipality or other public body is required to maintain roads and streets in a reasonably safe condition, and is by statute made liable in damages for failure to do so, suits or actions may be maintained. Tompkins v. The Kanawha Board, 19 W. Va. 257. Suits may also be maintained against State officials in respect to the performance of their duties, in connection with matters as to which the State has no direct governmental interest to preserve, and such suits are held not to be suits against the State. Railway Co. v. Conley, supra. See also Poindexter v. Green- how, 114 U. S. 270.

Reference to the above authorities is made to show the general trend of authority with respect to suits and actions against public corporations. Many such corporations are organized, and illustrative are corporations organized for purposes not strictly governmental, such as those organized for the operation of water and power plants, swimming pools, parks and other recreational facilities, which come under the classification of proprietary as distiguished from governmental enterprises. The question now arises whether a public corporation, organized for the purpose of engaging in the business of selling intoxicating liquors should be treated as an agency of the State, exercising governmental authority, or merely as one operating in a proprietary or non-governmental capacity.

All authorities agree that a State has particular duty to perform with respect to the regulation and sale of intoxicating liquor. In 30 Am. Jur. 260 it is stated:

"From the earliest times it has been found expedient to control, not only the use of intoxicating liquors, but more especially the traffic therein. Such control is justified under the police power. It embraces both regulatory and prohibitory measures. It may assume various forms, such as the imposition of license taxes upon manufacturers or dealers, restrictions as to the class of persons to whom liquors may be sold, and as to the hours of the day and the days of the week during which places of sale may be open; a total prohibition of all manufacture or sale whatever, or the assumption by the state itself of power exclusively to supply liquors to its inhabitants. The form of control is a matter for the state to decide as a question of public expediency and morality. The exercise of regulation and control of the liquor traffic has become so general that it has been said that courts may judicially notice that most free governments have made the business of selling liquor a subject of regulation."

In Hinebaugh v. James, Tax Commissioner, 119 W. Va. 162, 192 S. E. 177, sale of non-intoxicating beer was said to be analogous to the traffic in hard liquor, and it was there stated that: '"As to the regulation whereof under the police power there can be no doubt." This theory was sustained in Morris v. Sevy, 129 W. Va. 331, 40 S. E. 2d 874. We do not think there can be any doubt that the State of West Virginia, and its Legislature, in exercising the police power vested in the State, has always assumed a high degree of power in connection with the regulation and sale of intoxicating liquors. During the State's...

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  • Walter Butler Bldg. Co. v. Soto
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    ...to recover a money judgment against the State in an action of assumpsit on a contract; and Schippa v. West Virginia Liquor Control Commission, 132 W.Va. 51, 53 S.E.2d 609, 9 A.L.R.2d 1284, which was an action at law to recover from the liquor control commission money which the plaintiff had......
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    ...99 W.Va. 397, 129 S.E. 320, Hardy v. Simpson, 118 W.Va. 440, 190 S.E. 680, 191 S.E. 47 and Schippa v. West Virginia Liquor Control Commission, 132 W.Va. 51, 53 S.E.2d 609, 9 A.L.R.2d 1284, that the immunity of the state in a court of law or equity with the exception therein provided applies......
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    ...officers; and all persons must take note of the legal limitations upon their power and authority. Schippa v. West Virginia Liquor Control Commission, 132 W.Va. 51, 54, 53 S.E.2d 609, 611; Armstrong Products Corporation v. Martin, 119 W.Va. 50, 53, 192 S.E. 125, 127, 111 A.L.R. 1229; State v......
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    ...to recover a money judgment against the State in an action of assumpsit on a contract; and Schippa v. West Virginia Liquor Control Commission, 132 W.Va. 51, 53 S.E.2d 609, 9 A.L.R.2d 1284, which was an action at law to recover from the liquor control commission money which the plaintiff had......
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