
    (No. 612-S
    ZACKWELL COCHRAN, Claimant, v. STATE ROAD COMMISSION, Respondent
    
      Opinion filed January 16, 1948
    
   MERRIMAN S. SMITH, Judge.

The state road commission, in October 1946, established a rock quarry at Turkey River on route 20, about seven miles east of New Martinsville, Wetzel county, West Virginia, which it maintained over a period of eight months, or until June 9, 1947. During this time road commission employes blasted the rock with regularity.

Claimant Zackwell Cochran’s store building, service station and dwelling were situated about two hundred fifty feet away from the quarry and on the same strata of rock. By reason of this blasting over such a long period of time the walls of his store building, which were built of concrete blocks, shook loose from the foundation. There also were holes and near-holes on the roofs of the buildings, which necessitated repair and paint.

After a thorough investigation by the state agency involved an agreement was entered into wherein claimant, Zackwell Cochran, for the sum of forty dollars would release the state road commission for all damages to his property by virtue of the blasting operations.

The state road commission concurred in the payment of this claim and it was approved by the attorney general. Therefore, a majority of this court recommends that an award in the sum of forty dollars ($40.00) be made to claimant, Zackwell Cochran.

ROBERT L. BLAND, Judge,

dissenting.

The constitution of West Virginia provides that the state shall never be made defendant in any court of law or equity. However, on March 6, 1941, the Legislature passed an act creating the state court of claims as a special instrumentality of that body, for the purpose of providing a simple and expeditious method for the consideration of claims against the state, which, by reason of its constitutional immunity from suit, cannot be determined in a court of law or equity, and recommending the disposition thereof to the Legislature. The jurisdiction of the court is limited to the consideration of such claims and demands against the state as it should, as a sovereign commonwealth, in equity and good conscience discharge and pay. I do not regard the present claim as one belonging to that category. If the state were suable the claimant could have no recovery in a court of law. There is no evidence in the record to support the claim or give it dignity or standing in any court. Only by the widest stretch of fanciful imagination can it be held that the state should be responsible for the alleged damages sustained by claimant on account of the atomic reverberations of the blasting operations of the road commission. Seemingly the award made overlooks the inferior and insecure construction of claimant’s concrete block buildings, and the effect of the elements upon them. The road commission is without authority of law to enter into a contract providing for the payment of the claim before it is considered by the court of claims or the Legislature. A state is not bound by the unauthorized acts of public officers. State v. Chilton, 49 W. Va. 453. The head of a state agency may concur in a claim against the state, but the court of claims is not obliged to be bound by such concurrence, especially when it appears from the record that it is not one for which the Legislature should make an appropriation of the public funds. My conception of duty in the premises forbids my concurrence in the award in this case made by majority members.  