State ex rel. Catron v. Sims, 10221

• Decision Date: 31 January 1950
• Docket Number: No. 10221,10221
• Parties: STATE ex rel. CATRON, v. SIMS.
• Court: West Virginia Supreme Court

Page 465

57 S.E.2d 465

133 W.Va. 610

STATE ex rel. CATRON, v. SIMS.

No. 10221.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 11, 1950.

Decided Jan. 31, 1950.

Syllabus by the Court

1. 'Whether an appropriation is for a public, or a private purpose, depends on whether it is based upon a moral obligation of the State; whether such moral obligation exists is a judicial question; and a legislative declaration, declaring that such moral obligation exists, while entitled to respect, is not binding on this Court.' Pt. 2, Syl., State ex rel. Adkins v. Sims, Auditor, 130 W.va. 645 .

2. A moral obligation of the State in favor of a private person such as would ground a valid appropriation of public funds exists where there is '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.' State ex rel. Cashman v. Sims, Auditor, 130 W.Va. 430, 442 .

3. 'One setting fire upon his premises is charged with the duty of exercising ordinary care and skill in preventing it from spreading and being communicated to the property of another, and if he fails to exercise such care, and by reason thereof the fire is communicated to the property of another, causing him damage, he is liable for the damages sustained by reason thereof.' Mahaffey v. J. L. Rumbarger Lumber Company, 61 W.Va. 571 . Pt. 1, Syl.

John T. Keenan, Charleston, for petitioner.

William C. Marland, Atty. Gen., W. Bryan Spillers, asst. Gen., for defendant.

RILEY, Judge.

This is an original proceeding in mandamus to compel Edgar B. Sims, Auditor of the State of West Virginia, to issue a warrant upon the state treasurer for the payment to relator, S. P. Catron, of twelve hundred fifty dollars, for which the Legislature at its Regular Session in 1949 had appropriated in its Budget Bill, enacted into law on march 12, 1949. This appropriation was included to satisfy relator's claim for damages for the alleged wrongful and negligent destruction by fire of relator's growing 'Christmas' trees caused by a hostile fire started and maintained along West Virginia-United States Route No. 60, for the purpose of burning trees and brush thereon.

The relator asserted his claim against the State Road Commission of West Virginia before the state court of claims in the amount of sixty-two thousand two hundred forty dollars, which relator contended was due him by way of compensation for the destruction by fire of approximately one hundred forty-one thousand evergreen 'Christmas' trees. The court of claims by unanimous decision found that there was a moral obligation on the part of the State to pay relator the sum of twelve hundred fifty dollars. The Legislature of 1949 by enactment of Chapter 12, Acts of the Legislature, 1949, adopted as its own the findings of fact of the court of claims as to various claims, including that of reator, against the State and the agencies thereof, and declared it to be the moral obligation of the State to pay each of such claims in specified amounts. By specific legislative direction, contained in Section 2 of the Budget Bill (Chapter 9, Acts of the Legislature, 1949), the appropriation to pay the award to relator remains in effect until June 30, 1951. The State Road Commission of West Virginia, acting upon such legislative fiat, executed and delivered to the respondent, Edgar B. Sims, state auditor, a requisition for the payment of relator's claim, but the auditor refused to issue his warrant therefor, assigning as grounds for his action that '* * * the State cannot insure the public against torts committed by its agents or employees in the absence of statute or constitutional provision. It is my contention that State funds can be expended only if the State receives some benefit--goods, services or land.'

The record before the court of claims, and as set forth in the allegations of relator's petition in this proceeding shows that relator, during the years 1937 to 1945, inclusive, had purchased approximately one hundred forty-one thousand evergreen trees, and was engaged in cultivating them on the boundary of land of approximately seventy acres owned by Nelson and Williams, trustees, and leased by relator. This tract was contiguous to West Virginia- United States Route No. 60. The record discloses that relator had a market for the growing trees, many of which were several years of age, and that he was wont to sell the trees on the land for sixty-five cents each.

On April 17, 1947, the State Road Commission of West Virginia, acting through its servants and employees, was engaged in clearing the right of way of state route No. 60, by removing from the area on each side thereof trees and brush which had accumulated thereon. In order to clear said right of way, the state road commission's servants and employees started and maintained fires for the purpose of destroying the trees and brush so collected. Relator charges, and the record discloses, that the state road commission permitted and caused a fire on the right of way in close proximity to relator's evergreen trees, and so managed and supervised the same that the fire was communicated to relator's trees quickly causing a conflagration, which burned nearly over the entire boundary of land, and consumed and destroyed all of relator's trees.

The court of claims found that 'It is abundantly and very satisfactorily shown by the evidence that the fire which destroyed claimant's evergreen trees originated from the point on the road or highway where brush and other debris was burned by employees of the state road commission. The fire on the highway was within six feet of claimant's growing trees.' After the fire had been started, the road supervisor placed two employees to watch it. One of these employees has since died, but the other testified in the case to the effect that he and his companion remained on the highway until everything placed on the fire had burned to ashes. However, an impartial witness, whose deposition on behalf of relator was taken at the United States Training Center, Great Lakes, Illinois, testified that he resided on the leased land at the time the evergreen trees were destroyed, and that when the fire was reging he saw burning embers of logs at the point where the fire was started on the right of way of the highway. On the basis of this testimony the state court of claims held that 'No precaution whatever is shown to have been taken by the state in order to prevent the fire on the road right of way from communicating to the premises of claimant.'

The initial and cardinal principle which should guide us in the appraisement of this case is succinctly stated by this Court in point 3 of the syllabus in Woodall v. Darst, Auditor, 71 W.Va. 350, 77 S.E. 264, 80 S.E. 367, 44 L.R.A.,N.S., 83 Ann.Cas.1914B, 1278: 'The Legislature is without power to levy taxes or appropriate public revenues for purely private purposes; but it has power to make any appropriation to a private person in discharge of a moral obligation of the state, and an appropriation for such purpose is for a public, and not a private, purpose.' So whether the appropriation is for a public or private purpose depends upon the existence of a moral obligation of the State. Whether, notwithstanding the legislative declaration in the instant case, a moral obligation exists is a judicial question. State ex rel. Adkins v. Sims, Auditor, 130 W.Va. 645, pt. 2 syl., 46 S.E.2d 81, which question has been set at rest by the principles enunciated by this Court in the recent cases of State ex rel. Cashman v. Sims, Auditor, 130 W.Va. 430, 43 S.E.2d 805, 172 A.L.R. 1389; and State ex rel. Davis Trust Co., v. Sims, Auditor, 130 W.Va. 623, 46 S.E.2d 90. In the Cashman case the general rule, subject to certain exceptions specified in the opinion, is stated to be that a moral obligation of the State in favor of a private person such as would ground a valid appropriation of public funds requires at least: (1) A prior statute creating or imposing upon the State an obligation to compensate a person for injury or damage resulting from the violation of a statute by the State or by any of the State's agencies; or (2) '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.' [130 W.Va. 430, 43 S.E.2d 814]

There being no prior statute governing the instant case, and no contract between the relator and the State, or any of its agencies, the appropriation in relator's favor will fail under the rule in the Cashman case, unless the fire which destroyed relator's trees was so negligently started and maintained in such dangerous proximity to relator's land as would ground an action for negligence had private parties been involved. As heretofore stated, the court of claims evidently believed the testimony of the disinterested witness, Richard L. Weaver, that at the time the fire was raging on...