Tompkins v. The Kanawha Bd.

• Decision Date: 17 December 1881
• Citation: 19 W.Va. 257
• Court: West Virginia Supreme Court
• Parties: Tompkins v. The Kanawha Board.♦(Patton, Judge, Absent.)

19 W.Va. 257

Tompkins

v.The Kanawha Board.

♦(Patton, Judge, Absent.)

Supreme Court of Appeals of West Virginia.

Submitted January 23, 1880.

Decided December 17, 1881.

Although the State of West Virginia owns the property under the control and supervision of the Kanawha Board, yet said Kanawha Board is liable to a suit for damages occasioned by its negligence in failing to discharge its duties; and such suit is not against the Siate within the meaning of section 35 of Article V of the Constitution, which declares: "The State of West Virginia shall never be made defendant in any court of law or equity."

Motion to dismiss a writ of error and supersedeas which had been allowed by this Court in an action on the case pending in the circuit court of the county of Kanawha, wherein William H. Tompkins was plaintiff, and the Kanawha Board was defendant, allowed upon the petition of said Board. The motion was made by the said Tompkins.

The facts of the case are stated in the opinion of the Court.

S. A. Miller for the motion cited the following authorities: Acts of Ya. 1829 pp. 50, 52; Session Acts of Va, 1832-3 p. 73; Session Acts of Va. 1857-8 p. 93; Acts of Va. 1862 p. 53; Id. p. 64; Id. p. 151; Acts of W. Va. 1869 p. 75; 10 Leigh 452; 6 Gratt. 160; 13 Gratt, 541; Acts of Va. 1859-60 p. 115; Acts of Va. 1862 p. 56.

C. Hedrick against the motion cited the following authorities: 10 Leigh 454; 6 Gratt. 160; 13 Gratt. 549.

William A. Quarrier against the motion:

1.This case having been properly dismissed at the Rules, it is error in the circuit court to reinstate it and set aside the dismission after the 15th day of the term that next succeeded the dismission. Code, section 7, section 60, section 46 of chapter 125; Enders v. Birch, 15 Gratt. 64.

2. The Kanawha Board is a peculiarly West Virginia creation. It inherits none of the duties or liabilities of the old James River and Kanawha Company. Its powers, duties and liabilities are only those prescribed in the Acts of its organization. Acts of W. Va. 1869 p. 75.

3. The Kanawha Board is a branch or department of the State government. It cannot be sued by an individual in the State courts at all, and particularly not in an action ex delicto to recover remote and consequential demages. Sayre v. Northwestern Turnpike Co., 10 Leigh 454; Dunnington v. Same, 6 Gratt. 160.

4. The court erred in refusing defendant's instructions as asked, and in amending them, and giving the instructions asked by the plaintiff.

5. The court erred in rejecting evidence of the institution of the suit of the Plaintiff v. Steamer Lookout.

Johnson, President, announced the opinion of the Court:

W. H. Tompkins brought an action on the case against the Kanawha Board for an injury to his property occasioned, as he alleges in his declaration, by the negligence of the defendant. After alleging in his declaration the incorporation of the defendant and its duties, and that under its charter it was required to keep the channel of the Kanawha river at the place, where the injury occurred, free from obstructions, and the damage suffered by him &c, proceeds: "And the plaintiff avers, that said barge and said one thousand five hundred barrels of salt were lost by the negligence of the defendant in this, to wit: that it negligently and carelessly permitted the said chute to be so obstructed by logs driftwood, &c, &c, concealed from ordinary observation of navigators and especially those navigating the said steamer Look Out and barges aforesaid, as to cause the said barge aforesaid with its cargo aforesaid to be wholly lost and destroyed to the great injury and loss of the plaintiff. Therefore the plaintiff sues, &c."

The suit was brought in the circuit court of Kanawha county in March, 1879. On the 4th day of June, 1879, the defendant demurred to the declaration, which demurrer was overruled, and the defendant pleaded "not guilty." The case was tried before a jury on the 17th day of June, 1879, and the jury found for the plaintiff and assessed his damages, at §1, 987.59. The court refused upon motion to set aside the verdict and entered judgment thereon. On the 10th day of July, 1879, a petition was presented to one of the judges of this Court, praying a writ of error and supersedeas to said judgment and averring, that inasmuch as your petitioner is representing and acting for the State and has no personal interest in this controversy, it prays, that such supersedeas be allowed without security. The question being a novel one, the judge granted the writ of error and supersedeas without bond. Thereupon the plaintiff below, defendant in error, gave notice of a motion to dismiss the writ of error and supersedeas, if a supersedeas-bond was not given. The motion was made and resisted, on the ground that no action lies against the Kanawha Board, that it cannot be sued, as suing it is in effect suing the State of West Virginia, and the board representing the State could not be required to give a bond before being heard in this Court. That motion we must first consider. Will such an action as this lie against the said defendant? And if it will, should a supersedeas-bond be required, before this Court will review the judgment of the circuit court? The act of the Legislature of West Virginia entitled "An act to enlarge the power and define the duties of the Kanawha Board and to authorize them to prosecute the improvement of the Kanawha river" provides in section 1 of said act, that the "Board of Public Works shall annually appoint five directors for the Kanawha Board with power to sue and be sued as a body politic and corporate, who shall have control and supervision of the Kanawha river according to the provisions of the act providing more effectual means for the improvment of the Kanawa river, passed February 15, 1858, and an act to amend the charter of the James River and Kanawha Company, passed March 23, 1860, so far as the same may be consistent with the provisions of this act. The said board of directors shall hold their offices for one year and until their successors are appointed, and shall have all the powers pertaining to the said board as fully, as if they had been appointed according to the provisions of said act passed February 15, 1858," &c. For a history of the various acts of the State of Virginia and their powers in reference to the James River Company and the James River and Kanawha Company, see Judge Lee's opinion in James River and Kanawha Co. v. Early, 13 Gratt. 541, and Judge Green's opinion in Swann, adm'r v. Summers, supra. Only three cases bearing upon this question have been decided in the Court of Appeals of Virginia, to which we will refer.

In Sayre v. Northwestern Road, 10 Leigh 454, the action was against the company for "so negligently, defectively and unskilfully planning and constructing a bridge across Middle Island creek, that it was washed away and destroyed the grist-mill of the plaintiff." The court by Tucker, President, said:" The court not deciding the other questions argued in this cause at the bar are unanimously of the opinion, that the action does not lie in this case against The Northwestern Turnpike Company, composed as it is exclusively of officers of the government having no personal interest in it or in its concerns, and only acting as the organ of the commonwealth in effecting a great public improvement."

In Dunnington v. Same Co., 6 Gratt. 160, the action was assumpsit for work and labor and material furnished for the corporation. The defendants demurred, and the demurrer was sustained, and judgment was rendered for the defendants, to which judgment the plaintiffs obtained a supersedeas. Allen, judge, in delivering the opinion of the whole court said:" It appears from the act of incorporation, that the officers of the company are mere trustees for the commonwealth, and the road was to be constructed entirely at the public expense. It is not pretended, that an individual can maintain an action against the State, unless she consents to submit herself to the jurisdiction of the courts, but this exemption the State may waive and in fact has done so by authorizing individuals to proceed against her in certain designated courts for claims against her. When for her own convenience and to effect some specific object she creates an agency under a corporate name and invests it with corporate powers, she may also subject it to responsibilities of ordinary corporations. * * It was forseen, that individuals might be aggrieved, as soon as the company commenced operations, by the location of the road and the erection of bridges, buildings and other, works necessary for the construction and preservation of the road; and provision was made by the 5th section, authorizing the party aggrieved to institute proceedings in the county or superior court, where the land was situated, against the company to recover his damages. The existence of the company did not cease on the completion of the road; it is charged with the duty of preserving it, and to do so must employ labor, procure materials, and of course enter into contracts to effect these objects. Should controversies grow out of these proceedings, and individuals be aggrieved, considerations of justice as well as of convenience required, that a remedy should be afforded. This it seems to me has been done in the act of incorporation by investing...