
    (No. 138
    JESS E. MILLER, Claimant, v. THE BOARD OF EDUCATION of Lewis County, a Corporation, Respondent.
    
      Opinion filed July 29, 1942.
    
    
      A. Jerome Dailey, for the claimant;
    
      Eston B. Stephenson, special assistant to the Attorney General, for the respondent.
   ROBERT L. BLAND, Judge.

This is a claim filed by Jess E. Miller, claimant, on the 10th day of June 1942, against the board of education of the county of Lewis, a corporation, for injuries sustained by him on the 7th day of October 1941, while he was regularly employed by said board and engaged as a laborer in work being done on the Junior high school (Weston Central School) building. In his petition claimant avers that previous to said 7th day of October 1941, he had been regularly employed by said board of education, receiving the sum of forty cents per hour for his services, his wages or earnings while so employed amounting to $4.00 per day; that on the date last aforesaid and while so employed, and acting under the direction and instruction of the superintendent of laborers, engaged in said work, he was, without fault on his part, injured by being struck by a large “jim pole” used in and about certain construction being done by said board of education on said school building, in the city of Weston, Lewis county, West Virginia. He alleges that while in the course of his employment said “jim pole” left its mooring or base, and fell, striking him, knocking him to the ground, breaking his leg just below the knee joint, causing a compound fracture, and doing him other bodily injury from which he still suffers. He further alleges- th'át he was removed to the City hospital in the city of Weston, for treatment of his injuries, where he remained as a patient for three weeks, at which time he was allowed to return to his home, using crutches. He avers that from the date of his injury until April 28,1942, he was under care of physicians, and when discharged from the hospital he was informed that he could do light work only. He claims that on account of his injuries he has lost, in actual time, work that would have yielded him $708.00 in wages, and incurred hospital bills amounting to $133.00. Claimant says that said two sums totaling $841.00 do not include his mental suffering and physical pain caused by said injuries, nor take into consideration his head injury and suffering therefrom.

Claimant asks an award of $1000.00 which sum he avers “is wholly due him, is unpaid, and. is, as claimant is advised, a proper claim for damages against the board of education of Lewis county, a corporation, and as such is a state agency, and by reason of the statute a proper claim to be presented to the state court of claims for consideration and action.”

It is apparent that said claim is asserted and sought to be maintained against the state upon the theory that the board of education is a “state agency.” The statute creating the court of claims is limited specifically to claims “against the state or any of its agencies,” acts 1941, chapter 20, section 15, subsection 1. Such claims must be deemed to be claims against the state of West Virginia and the several departments of the state government, and not to those of local government.

The question raised by claimant’s petition, therefore, is whether personal injuries chargeable to the board of education of Lewis county is a claim “against the state or any of its agencies.”

As said by Judge Woods, in the opinion in Krutili v. Board of Education, 99 W. Va. 466, “School districts in this state are a part of the educational system of the state, established in compliance of article 12, section 1 of our constitution, which makes it the duty of the Legislature ‘to provide, by general law, for a thorough and efficient system of free schools.’ They are involuntary corporations, organized not for the purpose of profit, or gain, but solely for the public benefit, and have only such limited powers as were deemed necessary for that purpose. Such corporations are but the agents of the state, for the sole purpose of administering the state system of public education.” Such a board is a quasi municipal corporation, “a public agency and an arm of the law,” but it is not a direct governmental agency.

Although a board of education is a unit or subdivision of the state and exorcises sovereinty as a branch of the state government, it seems clear that an act charged to a county board of education does not come within a claim against the state. The statute defines the words “stage agency” as meaning “a state department, board, commission, institution or other administrative agency of the state government.” Acts supra chapter 20, section 2, and among other matters extends the jurisdiction of the court of claims to those claims “against the state or any of its agencies which the state as a sovereign commonwealth should, in equity and good conscience discharge and pay.”. Acts supra, chapter 20, section 13, subsection 1.

The court act covers claims against the state as a sovereign entity only and not against the state and its several branches and subdivisions, except, of course, the state agencies specifically brought within the act and defined in section 2 thereof.

For the reasons herein set out wé are of opinion that the claim in question is not prima facia within the jurisdiction of the court of claims, and an order was accordingly so made, and the said claim dismissed.

WALTER' M. ELSWICK, Judge,

dissenting.

A majority of the court refused to docket this claim, and after doing so refused to permit the claimant to show cause that the claim should be docketed, and assigned as the reason for its action that a county board of education is not a state agency within the meaning of the act creating the state court of claims. No effort was made to distinguish between the status of an employee of a board of education who is injured while in the course of his employment and a pupil injured while attending one of the public schools of the state. In the case of an employee contracting for employment it can be said that he assumes the risk and hazard of his employment, and since the Legislature has not provided by general law for a remedy he is presumed to know the law. It cannot be said that a pupil or his parents assume the risk and hazards of being injured by negligence of the officers and employees of the free school system of the state, in view of the provisions of article 12, section 1 of the constitution, namely: “The Legislature shall provide, by general law, for a thorough and efficient system of free schools,” and in view of code of West Virginia chapter 18, article 8, section 1, making it compulsory for a child between the ages of seven and sixteen years to attend a school.

It has been the practice of the Legislature to provide a remedy by special laws to employees of boards of education injured during the course of their employment. The gist of these special acts of the Legislature was to authorize individual boards of education, in their discretion, to make settlement with the employees injured as will appear from the following special acts of the Legislature of 1941, namely: (1) House Bill No. 185, chapter 138 authorizing Gilmer county board of education to make settlement with Rolla Yerkey for injuries received while an employee of said board; (2) Senate Bill No. 85, chapter 139 authorizing Greenbrier county board of education to settle claim of Mabel Fulwider for injuries received from the explosion of a stove while employed as janitor of said board; (3) House Bill No. 11, chapter 140 authorizing Jefferson county board of education to compromise and make settlement with Mrs. W. P. Engbrecht for the death of her husband, who fell while he was washing windows in the high school building in Harpers Ferry district of said Jefferson county; (4) House Bill No. 279, chapter 132, authorizing Boone county board of education to pay James Midkiff a monthly sum for life, or to make a settlement with him, for permanent injuries received by him while in the employment of said board.

Article 12, section 5 of the constitution pertaining to raising in each county or district a proportion of the amount required for the support of free schools provides that the same “shall be prescribed by general laws.” It is, therefore, doubtful if such special acts comply with this provision of the constitution although our courts have held that this provision was not applicable to a special act providing for the establishment of a high school. Casto v. Upshur County High School Board, 94 W. Va. 513, 119 S. E. 470.

As pointed out in the majority opinion in the claim of J. C. Richards, et al, (Court of Claims, Case Number 48) there is no such limitation or restriction in the constitution requiring appropriations by the Legislature to be made by general laws. The Legislature has the discretion as to whether or not its purpose in making an appropriation could be best accomplished by a general or by a special act. See cases cited in the Richards case, supra. It is also to be observed that the constitution makes a distinction with reference to aid and credit between counties and boards of education. Article 10, section 6 of the constitution provides:

‘■‘The credit of the State shall hot be granted to, or in aid of any county, city, township, corporation or person; nor shall the state ever assume, or become responsible for the debts or liabilities of any county, city, township, corporation or person; . . .”

It is to be observed that a district board of education is a part of the state educational system created by the Legislature under article 12 and does not come within the limitation of section 6, article 10 quoted above. On the contrary, article 12, section 5 makes it mandatory for the Legislature to provide for the support of free schools by direct appropriations to be levied by general taxation of persons and properties or otherwise throughout the state.

This court by majority decisions has made two awards to claimants who were pupils injured while attending the public free schools of the state, whose claims were filed in the same manner and form as the claim in the instant case, being claim of J. C. Richards, et al, number 48, in which case I wrote the majority opinion, and claim of William, Johnson, Jr., number 55, in which case Judge Bland wrote the majority opinion confirming the opinion in the Richards case by stating that the award was made for the reasons and upon the grounds set forth in the opinion of a majority of the court filed in the case of claim number 48, J. C. Richards, et al, v. Board of Education of Calhoun County and State Board of Education. The district boards of education involved in each of these claims were named respondents along with the state board of education, and these claims were filed in the same manner as the instant claim of Jess E. Miller. In this case the claimant, Jess E. Miller, was injured in the course of his employment while engaged as an employee in the construction of a high school building in Lewis county. There is nothing appearing from claimant’s petition to show that the state was not interested in the work being done, that the state was not contributing or did not owe a duty to contribute its proportion of the amount required for the support of free schools therein as is required by article 12, section 5 of the constitution. This section makes it obligatory upon the Legislature to provide for the support of free schools, and it is given plenary, if not absolute, power for this purpose. Kuhn v. Board of Education, 4 W. Va. 499.

There was nothing appearing from the pleadings to indicate that claimant had a remedy under chapter 23 of the code of West Virginia.

The reasoning of the majority opinion filed in this case cannot be reconciled with the majority opinion in the Richards and Johnson cases, supra. The issue was clearly drawn by the reasoning of Judge Schuck in his dissenting opinions in these cases. They were cases of such grave importance that where there was a diversity of thought, issues should be made clear and explicit, with the hope, as expressed in the minority opinion, that the Legislature would see cause to enact laws affording a remedy in those and like- cases. Certainly that should be our aim regardless of the mode or manner of the remedy that may be afforded. It can be said that he is consistent in his view for the majority opinion in this case is based upon the reasoning expressed in his dissenting opinion in the Richards and Johnson cases.

The majority opinion in this case does not undertake to distinguish the decisions in the Richards and Johnson cases or to reconcile them with the majority opinion filed herein and therefore, the issue is left befuddled and the question as to the status of the Richards and Johnson cases is left in doubt and confusion. Claimants who are pupils injured in like manner as in the Richards and Johnson cases, through negligence of officers and employees of the public free school system of the state while attending public schools, would not know whether to file claims in the face of the majority opinion in this case adopting the reasoning of the dissenting opinion filed in the Richards and Johnson cases. Such claimants, having similar claims, although just, would be persuaded not to file their claims, by every logical conclusion of the reasoning in the majority opinion in this case. This situation would work an injustice upon them if the awards in the Richards and Johnson cases should be ratified by the Legislature and paid. Can it be said with reason when a claim is filed, without permitting a claimant to be heard upon the pleadings or otherwise, that a district board of education is not a state agency as contemplated by the act creating the court of claims, and for that reason alone this court does not have jurisdiction, and in other cases that the court has jurisdiction to hear claims arising through negligence of the officers and employees of such board? I recognize a distinction between that of an emplyee who contracts for employment with a board of education and, who, it might be said, assumes the risks and hazards of his employment, and that of a pupil, under the compulsory attendance law who is compelled to attend school without discretion on the pupil’s part as to the assumption of risks and hazards by his or her presence at the school.

The Supreme Court of our state in the case of Rogers v. Jones, 115 W. Va., 320, 175 S. E. 781 ha dto deal with the question as to whether the terms of county school officers, including members of county or district boards of education should commence on the first day of January as provided for county officers under the constitution of West Virginia, article 4, section 7, when the act of 1933 creating county or district units, as interpreted by the court, fixed the first Monday in July as the beginning of the official term of members of the board. In that case the petitioner contended that the statute made county officers of members of the board. The court in its opinion referring to section 7 of article 4 of the constitution said:

“That section provides that the terms of county officers ‘not elected, or appointed to fill a vacancy, shall, unless herein otherwise provided, begin, on the first day of January.’ We are not in entire accord on whether the board members are county officers within the meaning of the constitution. We consider accordance thereon not of major importance, however, in view of the following provisions of article 12 of the constitution: Section 1. ‘The Legislature shall provide, by general law, for a thorough and efficient system of free schools’ ... We cannot conceive that the constitution would repose such absolute confidence in the judgment of the Legislature as Article 12 demonstrates, yet at the same time disallow legislative discretion regarding the one minor matter of when the terms of certain school officers should commence. Section 7, su-pra, itself, contemplated that the beginning of official terms would be ‘otherwise provided’ by the constitution. We are of opinion that the sweeping terms of Article 12, Sections 1 and 3, make such other provision.”

As was said by our Supreme Court in the Rogers case, supra, when the court stated that the members were not in entire accord on whether the board members are county officers, we should not consider accordance thereon of major importance in carrying out the intent of the Legislature with respect to creating the court of claims and complying with the sweeping and mandatory terms of article 12, sections 1 and 3 of the constitution.

It certainly should be of interst to the Legislature that we be consistent with our reasoning or at least reconciling our views, in making our reports to it, and to the public when decisions are announced, to enable all claimants of the same class injured by negligence of the same class of agency to be of equal status in all our decisions and recommendations, so that there shall not be confusion among those within the same class, as -to whether or not they have a right to file their claims before this court for final determination to be made by the Legislature.

For the reasons herein set forth I dissent to the majority opinion filed in this case.  