Ward v. County Court of Raleigh County

• Decision Date: 03 August 1956
• Docket Number: No. 10783,10783
• Parties: John C. WARD, Sheriff, etc. v. The COUNTY COURT OF RALEIGH COUNTY et al.
• Court: West Virginia Supreme Court

Page 44

93 S.E.2d 44

141 W.Va. 730

John C. WARD, Sheriff, etc. v. The COUNTY COURT OF RALEIGH COUNTY et al.

No. 10783.

Supreme Court of Appeals of West Virginia.

Submitted April 17, 1956.

Decided May 29, 1956.

Rehearing Denied Aug. 3, 1956.

Syllabus by the Court

1. The Raleigh County Park Board, a public corporation created by Chapter 151 of the 1941 Acts of the Legislature, in the

exercise of the functions for which it was created, acts in a proprietary, not a governmental, capacity.

2. A public corporation when acting in a proprietary capacity may sue or be sued notwithstanding the Act of the Legislature creating such corporation did not so expressly provide.

Thornhill & Thornhill, Beckley, for plaintiff in error.

C. Berkley Lilly, J. W. Maxwell, Anthony J. Sparacino, Beckley, for defendant in error.

GIVEN, Judge.

John C. Ward, Sheriff of Raleigh County, as administrator of the estate of John Willard Crawford, deceased, instituted an action in the Circuit Court of Raleigh County, against the County Court of Raleigh County; H. G. Farmer, as President of the County Court of Raleigh County; and A. J. Lilly and E. Van Dorsey, members of the County Court of Raleigh County; Jack A. Nuckols, former member of the County Court of Raleigh County, and acting as such at the time of the arising of the cause of action hereinafter set forth, and the Board of Park Commissioners of Raleigh County; Walter Duncan, Harold Lambert, Nena S. Ross, Henry Lawson, Varney Harmon, Elinor Hurt, Simeon Warren and George W. Bright, Members of the Board of Park Commissioners of Raleigh County, for the recovery of damages for the death of his decedent, John Willard Crawford, by drowning, alleged to have been the result of negligence of defendants. Separate demurrers to the declaration were filed by defendants, all of which were sustained except the demurrer of defendant Raleigh County Park Board, which was overruled December 10, 1953. No appellate action was sought as to the action of the trial court in sustaining the several demurrers mentioned. The circuit court, on motion of the Raleigh County Park Board, set aside a verdict returned against the park board in the amount of $7,500 and, after again considering the demurrer to the declaration filed by the Raleigh County Park Board, sustained the demurrer and dismissed the action as to the Raleigh County Park Board. On November 14, 1955, a writ of error to that judgment was granted by this Court.

The Raleigh County Park Board was created by Chapter 151 of the 1941 Acts of the Legislature. That Act provided that the park board should consist of eight members, to be appointed by the County Court of Raleigh County, and was made a 'body corporate'. By Section 1 of the Act it was provided that 'The county court of Raleigh county shall have and is hereby given power to acquire lands or leasehold estates or other interests therein for, and to create, establish and maintain parks, parkways, bridges, playgrounds, athletic fields, stadiums, swimming pools and recreational centers, and to expend moneys for such purposes * * *'. The County Court of Raleigh County was authorized, with certain limitations, to issue and sell bonds, and to increase levies for such purposes. Section 8 of the Act provided that "Raleigh County Park Board' shall have supervisory authority over all parks, parkways, bridges, playgrounds, athletic fields, stadiums, swimming pools and recreational centers created or established under authority of this act. The county court shall appoint only such engineers, supervisors and other employees as may be recommended to it by the park board.

'No expenditures shall be made for the acquisition of any land, for the construction of any improvements, or for the maintenance and operation of any parks, parkways, bridges, playgrounds, athletic fields, stadiums, swimming pools and recreational centers created or established under authority of this act, except upon the recommendation and approval of the park board.' Section 10 provides: 'All funds realized by the county court of Raleigh county from the sale of bonds, or from increased levies, for the purposes enumerated in section one of this act, shall be expended only as approved by 'Raleigh County Park Board'. Section 12 reads: 'The county court of Raleigh county may, from time to time, authorize 'Raleigh County Park Board' to expend moneys for engineering, planning and otherwise as to the court may seem advisable, but before any expenditures are authorized to be made by the park board, the limit of such expenditures shall be fixed by the court. Neither the court nor the county shall, in any event, be liable for any expenditures made or indebtedness incurred by the park board in excess of the amounts from time to time theretofore authorized by the court.' And Section 13 contains this provision: 'In the management and operation of any of the projects enumerated in section one of this act, 'Raleigh County Park Board' may, with the approval of the county court, establish and collect fair and reasonable charges for automobile parking, use of athletic fields or other facilities for private use or where admission is charged, and for such other services and facilities as it may be determined by the park board that charges shall be made * * *'.

The pertinent allegations contained in the declaration are to the effect that the county court, pursuant to the powers granted it by the Act mentioned, at the time of the drowning of plaintiff's decedent, was the owner of and maintained a large, deep, artificial lake 'designed for and used by the public generally for swimming and boating purposes'; that supervision and control of the lake had been delegated to the Raleigh County Park Board; that the lake was 'operated on a commercial basis and for profit to the said defendants in that certain parts of said Park were rented to persons for hire and profit * * * and certain boats were for hire and profit rented to anyone who might apply therefor and pay the demanded charge'; and that plaintiff's decedent 'rented and hired from the defendants one of said power boats along with the services of an operator'; that it became and was the duty of defendant to furnish boats and equipment 'in a good state of repair'; to 'have and maintain on said boat life preservers and other safety equipment; and to keep in charge of the operation and control of said boat competent persons who would exercise reasonable and ordinary care for the safety of their passengers'. The declaration then charges the breach of such duties and resultant damages.

Certain questions are attempted to be raised as to the actions of the trial court relating to the setting aside of the verdict of the jury. Since a consideration of such questions depends on the evidence taken at the trial before the jury, which evidence has not been made part of the record before this Court by any bill of exceptions, such questions cannot now be considered. As to such questions, we must assume that the action of the trial court was correct. The pleadings, of course, are before the Court by virtue of statutory provisions, and the controlling question raised by them is whether the defendant now before the Court, The Raleigh County Park Board, a public corporation, is immune from suit as an agent, arm or subdivision of the State.

Section 35 of Article VI of the State Constitution reads: 'The State of West Virginia shall never be made defendant in any court of law or equity, except the State of West Virginia, including any subdivision thereof, or any municipality therein, or any officer, agent, or employee thereof, may be made defendant in any garnishment or attachment proceeding, as garnishee or suggestee.'

In Hamill v. Koontz, 134 W.Va. 439, 59 S.E.2d 879, 880, the Court held that a proceeding prosecuted under authority of a statute, against the State Tax Commissioner, for the recovery of a sum erroneously paid to the State as a tax, was 'a suit against the State in violation of Article VI, Section 35, of the Constitution of West Virginia, and can not be maintained'. In Schippa v. West Virginia Liquor Control Commission, 132 W.Va. 51, 53 S.E.2d 609, 9 A.L.R.2d 1284, it was held that the 'State Liquor Control Commission is an agency of the State, engaged in the performance of governmental functions', and as such immune from suit. In Mahone v. State Road Commission, 99 W.Va. 397, 129 S.E. 320, the State Road Commission was held to be 'a direct governmental agency' and 'not subject to an action for tort'. See 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.

In Miller v. State Board of Agriculture, 46 W.Va. 192, 32 S.E. 1007, it was held: '2. 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.' In Barber v. Spencer State Hospital, 95 W.Va. 463, 121 S.E. 497, the action was for recovery of damages for death claimed to have resulted from negligence of the defendant hospital, a state institution 'for insane persons, supported entirely by state funds'. The State agency was held immune from suit. In State ex rel. Gordon v. State Board of Control, 85 W.Va. 739, 102 S.E. 688, the action was in mandamus to compel the defendant to perform covenants of a contract made between it and a contractor, and it was held that 'Such a proceeding is virtually one against the state and cannot be maintained'. See Miller Supply Co. v. State Board of Control, 72 W.Va. 524, 78 S.E. 672. In City of Charleston v. Southeastern Construction Co., 134 W.Va. 666, 64 S.E.2d 676, the Court held: '1. The State Office Building Commission is a State agency, and, as such,...