Adkins v. Sims , 127 W. Va. 786 ( 1945 )

I concur in the opinion prepared by Judge Kenna, both as to the result, and, in general, with the views expressed therein, but I would not rest the decision solely on the failure of the Legislature, by specific enactment, based on its own conclusion of fact, to declare whether or not a moral obligation exists to pay the claim asserted by the relator. I would go to the heart of the issue presented, and base the decision upon what I conceive to be a proper basis on which it should rest, namely, that the failure of the State Road Commission to install and maintain guard rails and danger signals, and provide and maintain a marked center line at the point of the accident here involved, is not negligence on the part of the Commission on which it can be said that a moral obligation arises therefrom for which the Legislature has the right to appropriate public funds.

It is settled law that the Legislature may appropriate money for a moral obligation where some public purpose is served; but it is equally well settled that it may not appropriate public funds for a private purpose. Within constitutional limits, the Legislature is vested with very broad power in the appropriation of public funds, and only in extreme cases will Courts interfere with the exercise of such powers. What is a public or a private purpose is, ordinarily, within the discretion of the Legislature to decide; but in case of abuse of that discretion may become a judicial question. InWoodall v. Darst, 71 W. Va. 350, 77 S.E. 264, 80 S.E. 367, this Court held:

"Whether an appropriation is for a public, or a private, purpose is a judicial question; but if it does not clearly appear from the act of appropriation that it is for a purely private purpose, the court can not so decide. If any doubt exists as to whether it is for a public or a private purpose, the court must uphold the legislative act."

The Legislature may not declare that a public purpose which is clearly a private one. It cannot, by its mere fiat, make black white. Ohio Oil Co. v. Wright, 386 Ill. 206, 53 N.E. 966.

In the case before us, unless a moral obligation is shown to exist, the challenged appropriation must fall. In the peculiar situation here presented no moral obligation can be said to exist, unless we hold that there was a non-conformance of some specific duty resting upon the State Road Commission, furnishing a basis for the contention that the failure to perform such duty was negligence. A moral obligation to appropriate money may arise in other ways, but not in the case under consideration.

Therefore the question is: Was the failure of the State Road Commission to install and maintain guard rails and danger notices at the point of the accident, and to mark, at the same place, the center line, negligence of any kind or character? I do not think that it was. In the first place, no statute requires the Commission to install and maintain guard rails, notices of danger, and to paint center lines, at any point on any state highway, primary or secondary, and no decision of this or any other Court, which is cited or can be found, places that duty on the State. The case of Wells v. County Court,85 W. Va. 663, 102 S.E. 472, relied upon by the relator, is not applicable to this case, for the reasons set out in Judge Kenna's opinion. Aside from this, the very nature of the obligation of the State, in respect to the construction and maintenance of its highways, precludes the idea that its failure to exercise discretion in respect to a particular location, as to whether it will or will not provide guard rails, center lines or danger signals, is an act of negligence. It is, of course, a matter of common knowledge that our system of state highways, primary and secondary, covers many thousands of miles. The Road Commission, in its discretion, has embarked upon a plan of installing guard rails at what are supposed to be dangerous points on highways of both classes, and of painting center lines and using danger signs; but, as stated above, it is merely carrying out its general duties to make the roads of the State as safe as possible, as distinguished from some mandatory duties imposed upon it by the Legislature. It is limited in the amount of money it can spend on the construction and maintenance of highways and the protection of those who use them. In this situation, it must necessarily exercise a discretion as to what roads, or points on roads, should be protected by guard rails, danger signs and painted center lines. It is also well known that places of danger exist at innumerable locations along our public highways, particularly our secondary roads. This being a mountainous country, many of these roads are narrow, with steep grades and sharp curves. Considering the financial limitations placed upon the Road Commission, it would seem to be impossible to take care of all of these defects at one time, or even in one year, even if the labor and supplies situation made it otherwise possible. In the very nature of things, the Road Commission must be permitted to exercise a discretion as to where public money should be expended in providing guard rails, danger signals and center lines. All these considerations, and many others which might be mentioned, seem to me to call for a holding that the mere failure of the Commission to place guard rails, danger signs and painted lines at any particular point among the literally thousands of points in the State where such protection should be afforded, is not negligence on which any contention may be made that a moral obligation rests upon the State to compensate persons injured by reason of such failure. Certainly where the Road Commission is vested with the discretion, in matters of this character, it cannot be negligence that it selects for safety measures one point over another. I do not mean to say that situations may not arise where the failure of the Road Commission to properly maintain a highway and guard against accidents, occasioned by the condition of the road, may not be treated as such positive negligence as to create a moral obligation for which the Legislature may appropriate money to cover damages which proximately result therefrom. But here we have a simple proposition: No fault was found with the road, but only that certain precautions had not been taken to guard against accidents at the particular point, that point being only one of many points, some possibly of even greater danger. If we should award this writ the Legislature would hereafter be given authority, and, if this precedent be followed, would be required to compensate every person injured on the highways of this State resulting from the failure to maintain, in a safe condition, every mile of highways, primary and secondary. There is no halfway place. I would, therefore, deny the writ on the additional ground that the State was guilty of no negligence which could be made the basis of a moral obligation, to meet which the Legislature would be authorized to appropriate public funds.

I am authorized to state that Judge Lovins concurs in the views herein expressed.