Stewart v. State Road Commission of West Virginia

• Decision Date: 28 April 1936
• Docket Number: 8402.
• Citation: 185 S.E. 567,117 W.Va. 352
• Parties: STEWART v. STATE ROAD COMMISSION OF WEST VIRGINIA.
• Court: West Virginia Supreme Court

185 S.E. 567

117 W.Va. 352

STEWART v. STATE ROAD COMMISSION OF WEST VIRGINIA.

No. 8402.

Supreme Court of Appeals of West Virginia.

April 28, 1936

Submitted April 8, 1936.

Syllabus by the Court.

1. Under present procedure, section 35, article 6, of the Constitution of West Virginia (declaring the state immune from suit), is absolute.

2. The constitutional immunity of the state from suit extends to its governmental agencies. Downs v. Lazzelle, 102 W.Va 663, 136 S.E. 195 is overruled to the extent that it holds the state road commission, as such, may be sued.

Original proceeding in mandamus by Otway C. Stewart against the State Road Commission of West Virginia. On demurrer to the petition.

Writ refused.

Worrell & Worrell, of Roanoke, Va., for relator.

Homer A. Holt, Atty. Gen., and J. F. Bouchelle, Asst. Atty. Gen for respondent

HATCHER President.

Relator seeks a writ of mandamus to compel the payment of a judgment for $766 in his favor against respondent which he obtained on account of land allegedly appropriated by respondent in 1935 for road purposes without purchase or condemnation. Respondent demurs to the petition herein mainly for the reason that respondent is an arm of the state and that the judgment is invalid because the Constitution article 6, § 35, forbids a suit against the state. Relator would maintain this proceeding on the grounds that governmental bodies may be compelled by mandamus to perform ministerial functions, and that in 1933 the Legislature enacted that "'the State Road Commission of West Virginia' shall be a corporation, and, as such may sue and be sued." Acts First Extraordinary Session 1933, ch 40, art. 2, § 1.

Our Constitution, article 6, § 35, provides: "The State of West Virginia shall never be made defendant in any court of law or equity." There is no specific exception to this inhibition. Such a provision is ordinarily construed to be "absolute and unqualified." Hampton v. State Board, 90 Fla. 88, 105 So. 323, 42 A.L.R. 1456; Alabama Industrial School v. Addler, 144 Ala. 555, 42 So. 116, 113 Am.St.Rep. 58; 25 R.C.L., subject States, § 50. We recognize that the constitutional inhibition against taking private property for a public use without just compensation (article 3, § 9) is of equal dignity with the inhibition against suing the state. If necessary to maintain the rights of a citizen under the former, the two provisions would be construed together and the former treated as an exception to the latter. This has been done in some states. See Chick Springs Water Co. v. Highway Dept., 159 S.C. 481, 157 S.E. 842. Our procedure, however, affords ample protection to one in the position of petitioner without resorting to that necessity. (1) He may enjoin the state road commissioner, and his representatives, personally, from unlawfully invading his property. Coal & Coke Railway Co. v. Conley, 67 W.Va. 129, 146, 147, 67 S.E. 613. (2) He may recover damages from the commissioner and his representatives, personally, for unlawfully entering upon and taking his property. The constitutional immunity of the state is not extended to its officials and their representatives in the performance of an unlawful act. Coal & Coke Railway Co. v. Conley, supra. (3) He may mandamus the commissioner in person, to condemn his land. Draper v. Anderson, 102 W.Va. 633, 135 S.E. 837; Haycock v. Jannarone, 99 N.J.Law, 183, 122 A. 805; 20 C.J., subject Em. Domain, § 521. "It is settled," says the Supreme Court of the United States, "that in such a case a suit brought by the person entitled to the performance of the duty against the official charged with its performance is not a suit against the government." Houston v. Ormes, 252 U.S. 469, 472, 40 S.Ct. 369, 370, 64 L.Ed. 667. Accord: Fidelity & Deposit Co. v. Shaid, 103 W.Va. 432, 438, 137 S.E. 878; 59 C.J., subject States, § 466.

We are aware that when the Legislature has established a corporate entity and provided it with funds to conduct an enterprise for the state, some jurisdictions with constitutional provisions similar to ours have held that the entity is separate from the state and is subject to suit. See State v. Bates, 317 Mo. 696, 296 S.W. 418; Arkansas Commission v. Dodge, 181 Ark. 539, 26 S.W.2d 879, 885. But as was...