State Ex Rel. Roy H. Adkins v. Sims

• Decision Date: 30 November 1947
• Docket Number: (No. 9954),(No. 9960),(No. 9958),(No. 9959)
• Court: West Virginia Supreme Court
• Parties: State ex rel. Roy H. Adkins, Admr., etc. v. Edgar B. Sims, Auditor, etc.State ex rel. J. P. Burgess, Admr., etc. v. Edgar B. Sims, Auditor, etc.State ex rel. C. J. Jones, Admr., etc. v. Edgar B. Sims, Auditor, etc.State ex rel. Joe Surber, Admr., etc. v. Edgar B. Sims, Auditor, etc.Page 645State ex rel. Edward D. Burdette, Admr., etc. v. Edgar B. Sims, Auditor, etc.(No. 9961)State ex rel. E. W. Lively, Admr., etc. v. Edgar B. Sims, Auditor, etc.(No. 9962)

130 W.Va. 645

State ex rel. Roy H. Adkins, Admr., etc.

v.Edgar B. Sims, Auditor, etc.

State ex rel. J. P. Burgess, Admr., etc.

v.Edgar B. Sims, Auditor, etc.

State ex rel. C. J. Jones, Admr., etc.

v.Edgar B. Sims, Auditor, etc.

State ex rel. Joe Surber, Admr., etc.

v.Edgar B. Sims, Auditor, etc.

State ex rel. Edward D. Burdette, Admr., etc.

v.Edgar B. Sims, Auditor, etc.

(No. 9961)

State ex rel. E. W. Lively, Admr., etc.

v.Edgar B. Sims, Auditor, etc.

(No. 9962)

(No. 9954)

(No. 9958)

(No. 9959)

(No. 9960)

Supreme Court of Appeals of West Virginia.

Decided November Term 1947

1. Legislatre

"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." Woodall v. Darst, 71 W. Va. 350.

2. Moral Obligation

Whether an appropriation is for a public, or a private purpose, depends upon 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.

3. Moral Obligation

The failure of the state road commissioner, in the exercise of the discretion vested in him to expend public moneys, appropriated by the Legislature for the construction, maintenance and repair of the public highways of this State, to provide guard rails, place road markers or danger signals, and paint center lines on paved highways, at a particular point on any highway in this State, does not create a moral obligation on the part of the State to compensate a person injured on such highway, allegedly resulting from such failure.

Mandamus proceedings by the State, on the relation of Roy H. Adkins, administrator, etc., on the relation of J. P. Burgess, administrator, etc., on the relation of C. J. Jones, administrator, etc., on the relation of Joe Surber, administrator, etc., on the relation of Edward D. Burdette, administrator, etc., and on the relation of E. W. Lively, administrator, etc., against Edgar B. Sims, Auditor.

Writs refused.

Kenna, Judge, concurring.

T. C. Townsend and M. E. Boiarsky, and Myron R. Renick, for relators.

Ira J. Partlow, Attorney General, and Eston B. Stephen- son and W. Bryan Spillers, Assistant Attorneys General, for respondent.

Fox, President:

On the night of January 26, 1940, the decedents of the several relators in the above-styled proceedings were killed when the automobile in which they were riding went over a precipitous bank near the hard-surfaced state primary highway, known and designated as State Route No. 61, leading from Deepwater to Oak Hill, in Fayette County. No person now living saw the accident.

Some time after the death of the decedents, their several administrators, relators herein, filed with the State Court of Claims separate claims each for the sum of ten thousand dollars, basing their claims on the alleged negligence of the state road commissioner in failing to keep the highway aforesaid in a safe condition for travel, and specifically the failure of the state road commissioner to install and maintain guard rails, road markers, and painted center lines, for the protection and guidance of persons using the highway. In the year 1943, the Court of Claims', one Judge dissenting, recommended to the Legislature the payment of thirty-five hundred dollars to each of the claimants, the opinion and recommendation of the Court of Claims being made a part of the record before us, and at the Regular Session of the Legislature, 1945, an appropriation for twenty-one thousand dollars to pay the claim so recommended by the Court of Claims was included in the general budget bill enacted at that session.

There are no disputed facts in the proceedings before us. Admittedly, there was no guard rail at the point of the accident; no road markers, and no painted center line on the paved surface of the highway. On the other hand, there is no showing that the highway was otherwise in an unsafe condition. The paved portion of the highway was fourteen feet in width, and the width of the berm varied from six and one-half feet to three feet at the narrowest point and where the automobile left the highway. While neither the State Court of Claims nor the Legislature refers to the existence of a moral obligation of the State to compensate the estates of the victims of this distressing accident, it is assumed that such supposed obligation was in the minds of both, inasmuch as the State has constitutional immunity (Section 35 of Article VI of the Constitution) from a suit or action on a claim of this character.

When the claims aforesaid were presented to the Auditor of the State of West Virginia, respondent herein, in the year 1945, payment was refused, on the general ground that the Legislature was without constitutional power to make the appropriation aforesaid for their payment, and on specific grounds not now important. The action of the Auditor was taken under the provisions of Code, 12-3-1.

Following this action on the part of the auditor, one of the relators herein, Roy H. Adkins, administrator of the personal estate of Roy Herbert Adkins, deceased, sought, in this Court, a writ of mandamus against Edgar B. Sims, Auditor, to compel the issuance by him of a warrant on the state treasurer for payment of his claim, so recommended by the Court of Claims, and appropriated for by the Legislature. The other claims of like nature, five in number, were only incidentally mentioned. We awarded the rule in mandamus prayed for and heard the case on its merits. The writ was denied by a unanimous Court, but there was disagreement as to the basis on which the decision should rest. A majority of the Court based its opinion on the disputed question on the following statement in the opinion prepared by Judge Kenna:

"Returning to what we regard as the question upon which the decision here turns and not attempting to dispose of a number of the questions briefed and argued because, in our opinion, they are not relevant, we believe the question of whether the Legislature has declared this claim to be a moral obligation of the State of West Virginia is decisive. The Legislature has not so stated unless placing the item in the Budget Bill can be so applied. The wording of the bill in that regard is as follows: 'Adkins, Roy H., Admr. of Estate of Roy Herbert Adkins, Jr., deceased $3,500.00.' The Legislature did not express its judgment concerning the existence of a moral obligation on the part of the State, either in the affirmative or negative, unless that is a matter that may be arrived at by implication from the fact that it did appropriate. We think that the statement of the question of whether a moral obligation of the State may be acknowledged indirectly requires no discussion, but that necessarily a declaration of that consequence requires a distinct and express enactment based upon its own conclusion of fact, stated by the Legislature preferably in an enactment separate and distinct from the appropriation bill that carries the grant."

Two members of the Court, while concurring in the holding quoted above, would also have denied the writ on the ground that there was no such negligent conduct on the part of the state road commissioner, on which a moral obligation to pay the claims could arise as against the State, or for which the Legislature could appropriate public funds. Adkins, Admr. v. Sims, Auditor, 127 W. Va. 786, 34 S. E. 2d 585.

When the 1947 session of the Legislature convened, the appropriation made for payment of the claims mentioned above was still available. On March 8, 1947, by Senate Bill No. 221, after reciting the steps theretofore taken in respect to the claims, the Legislature made the following enactment:

"Section 1. The legislature affirms and approves the recommendation of the court of claims that there should be paid the awards listed below; and it likewise affirms the appropriations made by the legislature at its one thousand nine hundred forty-five session (contained in chapter eleven, acts of the legislature, regular session, one thousand nine hundred forty-five) to pay said awards as claims against the state road commission. The legislature therefore makes the following awards:

"To Roy H. Adkins, Administrator, for the death of Roy Herbert Adkins, Jr., the sum of three thousand five hundred dollars;

"To J. P. Burgess, Administrator, for the death of Edward Sinclair Burgess, the sum of three thousand five hundred dollars;

"To Edward D. Burdette, Administrator, for the death of Edward D. Burdette, Jr., the sum of three thousand five hundred dollars;

"To C. J. Jones, Administrator, for the death of Esther Jones, the sum of three thousand five hundred dollars;

"To E. W. Lively, Administrator, for the death of Ruth Ann Lively, the sum of three thousand five hundred dollars;

"To Joe Surber, Administrator, for the death of Marguerette Frances Surber, the sum of three thousand five hundred dollars;

and authorizes the payment of each of said awards from funds in the state treasury pursuant to a valid appropriation bill separate and apart from this act.

"Sec. 2. The legislature hereby declares, as a finding of fact, that each of the foregoing awards, and the payment thereof, under the circumstances involved in each claim, constitutes a moral obligation of the State of West Virginia."

The relators herein, relying on the legislative enactment last aforesaid, and upon the interpretation of the effect of this Court's decision in Adkins, Admr. v. Sims, Auditor, supra, again presented their claims to the auditor, and requested that he issue warrants on the state treasurer for their payment. This he refused to do; whereupon the relators filed separate petitions in mandamus, in which they prayed that the state auditor be compelled...