
    No. 402
    GEORGE COY, JR., an infant, by GEORGE COY, SR., his next friend, Claimant, v. STATE BOARD OF CONTROL, Respondent.
    
      Opinion filed January 24, 1945
    
    
      Lee, Blessing & Steed (Howard B. Lee), for claimant;
    
      Ira J. Partlow, Attorney General and W. Bryan Spitlers, Assistant Attorney General, for respondent.
   ROBERT L. BLAND, Judge.

Claimant, George Coy, Jr., of Kessler, Greenbrier county, West Virginia, by George Coy, Sr., his next friend and father, filed his'claim in this court on September 10, 1944, in the sum of $5,000.00, which amount, in equity and good conscience, he maintains should be discharged and paid by the state of West Virginia.

His petition alleges that on April 29, 1943, when he was fifteen years of age, by an order entered by the circuit court of Greenbrier county, he was duly committed to the West Virginia industrial school for boys, at Pruntytown, in Taylor county, -West Virginia; and that on June 4, 1943, while in said school he was assigned and directed by the proper authorities thereof to work in the laundry, maintained and operated by the state of West Virginia on the premises of said school; that at the time he was so assigned and directed he was a youth of fifteen years of age, and had never had any prior experience in working in a laundry or with or about machinery of any kind, and that he did not know and did not appreciate or understand, nor was his attention drawn or directed to the extremely dangerous and hazardous character of the work which he was required to do. He charges that it became and was the duty of the state, through its agents and servants in charge of said school, and laundry, by reason of his extreme youth and inexperience, to advise and inform him fully of the risk, danger and hazard incident to his work in the operation of said laundry, and to warn him against the danger to which he would be subjected in the performance of such work. He says that notwithstanding such duty, neither at the time of said assignment and direction nor while he was so employed in the said laundry did any person or persons connected with the school and laundry give him any instructions respecting the operation of the machinery and appliances used in and about the operation of the laundry, or warn him of the risks, danger and hazard to him in the operation of said machinery and appliances.

Claimant further alleges that notwithstanding the duty of the state and its agents and servants, he was assigned to operate what is known as an “extractor" which is in itself a dangerous instrumentality, and without any instructions or warning as to such danger; that at one time such extractor had been equipped with a lid or cover, but the same had been removed or lost for a number of months, and that while so operating said extractor he got his left arm caught in its machinery and mechanism, and the same was so bruised and mangled that it had to be amputated very near the shoulder, thus crippling him for life.

The attorney general has moved to dismiss the claim upon the ground that it is a claim for injury to an inmate of a state penal institution, which is excluded by section 14, article 2, chapter 14 of the code.

Claimant, in his petition, has seen fit to allege that said industrial school for boys is not a penal institution within the contemplation of section 14, of the act creating the Court of Claims.

Section 14, article 2, chapter 14, of the code, provides as follows:

"'I he jurisdiction of the court shall not extend to any claim:
2. For injury to or death of an inmate of a state penal institution.”

Counsel for claimant has filed an able brief, citing many authorities in support of the proposition that the industrial school for boys at Pruntytown is not a penal institution. Counsel for the state have likewise filed able briefs in support of the motion to dismiss the claim on the ground that said school is, in truth and fact, a penal institution. .Members of the court have devoted much time to the consideration of the question, and are not in agreement.

We deem it unnecessary to discuss the various authorities cited by counsel for claimant and counsel for the state.

Majority members of the court are cf opinion that the West Virginia industrial school for boys at Pruntytown, is a penal institution within the contemplation and meaning of section 14 of the court act. and that the jursdiction of the Court of Claims to entertain the claim in question is excluded by the act.

Judge Schuck does not agree with the judgment of majority members of the court and will file a dissenting opinion.

The motion of the attorney general to dismiss the claim will be sustained, and the claim is accordingly dismissed.

CHARLES J. SCHUCK. Judge,

dissenting.

As set forth in the petition filed with this claim and further outlined in the majority opinion, the claimant. George Coy. Jr., was committed to the Pruntytown school for boys, on April 2°. I'M?. when he was fifteen vears of age: and shortly thereafter, or about June 4th of the same year, while engaged or employed in doing certain laundry work, and at a time when the petition alleges that he had never had any previous experience in working in and about machinery of any kind, and which machinery, according to the petition filed, was of a dangerous and hazardous character, claimant was so badly injured by having his arm mangled in the said machinery as to necessitate its amputation, and thus make him a cripple throughout the remainder of his life.

The sole question presented here for our determination, upon the motion to dismiss heretofore interposed by the state, is whether or not the boys’ industrial school at Pruntytown is a penal institution, since the act creating the Court of Claims, prohibits us from considering any claim for damages that has arisen in any manner by reason of injury to an inmate while confined in a penal institution.

The seriousness of the claim and the nature of the injuries require that most careful consideration be given to the determination of the question involved in order that justice may be done.

An examination of all the various acts, beginning with the act of 1889, creating the Pruntytown institution and following through with the Acts of 1908, 1913, 1919 and the subsequent acts, show conclusively to my mind that the Pruntytown school is purely a correctional institution where boys of tender years who may have, by reason of their acts, become a detriment or a menace to society, can be put in the custody of the state authorities, where parental care shall be administered in such a fashion and manner as to regenerate and rebuild the boy in qestion and seek to make him a worth-while citizen when he stands on the threshold of manhood.

An impartial investigation of the provisions of these several statutes, now combined into the juvenile delinquency statute, shows beyond all question that it was the intention of the various legislatures, as well as of the authorities of the state in charge of the institution, to have boys committed there after a hearing by the juvenile court authorities and without a formal conviction for some criminal offense in the criminal courts of our state. It is true that it is also provided that where a minor under the age of sixteen years has been convicted of a felony or of a misdemeanor, the judge of the said court is vested with the discretion of committing such minor to the reform school at Pruntytown, having in mind particularly the character of the reform school as a place of reform, and not of punishment, and so may order the boy so convicted, removed to and confined in said reform school. This language following the statute is, of itself, in my judgment, sufficient to establish the fact that in the minds of the legislators first creating the institution, it was treated wholly and solely as a reformatory and not as a place of punishment. This is further shown by subsequent acts, the whole tenor of which is the matter of reformation and reform and not of punishment for crimes that may have been committed.

Perhaps it would be well to consider the definition of the word "penal” in connection with the determination of the involved question. Webster, in the International Dictionary, defines the word “penal” in part as follows:

"Of or pertaining to punishment or penalties; as: a Designed to impose punishment; . . . c Inflicted as, or constituting, punishment or penalty, or used as means of punishment; ...”

Words and Phrases, Vol. 31, p. 579, defines penal as follows:

“The words ‘penal’ and ‘penalty’ strictly and primarily denote punishment, whether corporal or pecuniary, imposed and enforced by the state for a crime or offense against its laws.”

Surely from these definitions no comfort can be obtained in relation to their application to the institution at Pruntytown by simply saying that a school intended by the various legislatures and the officials of the state to be one created for the purpose of helping a child or a boy of immature age, could possibly fall within the meaning of those definitions. It is very plain to my mind, therefore, that no state institution may be classed as a "penal institution” within the meaning of the statute referred to, unless it is established and presently maintained as a place of “punishment” for those who intentionally violate the laws of the state. It is my contention that impartial examination of our statute, relating to. the creation and establishment of this industrial school, inevitably leads to the conclusion that it was never intended that the school should be a place of punishment or a penal institution in the sense understood by the definitions given above, but rather a place where, through the gentle and proper administration of quasi-parental authority the boy’s habits and disposition may be so changed as to make him a worthwhile citizen.

The majority opinion simply makes the unqualified statement that in the judgment of the judges rendering the opinion, Pruntytown is a penal institution and contemplated as such within the meaning of section 4 of the act creating the Court of Claims, but offers no authorities whatsoever to sustain such conclusion. I have looked in vain, in a rather extensive examination of the authorities of other states, this matter never having been decided by our state courts before, for any conclusion or opinion that would sustain the majority opinion, but have found none. On the other hand, I have found that where this matter has been tested, the courts have been unanimous in holding that an industrial school is not a penal institution. See House of Refuge v. Ryan, 37 Ohio State, 197; Roth & Boyle v. House of Refuge, 31 Md. 329; Milwaukee Industrial School v. Milwaukee County, 40 Wis. 328; 22 Am. Rep. 702; Commonwealth v. Fisher, 62 Atlantic 198; 213 Pa. 48; Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 651; 79 N. W. 422.

In House of Refuge v. Ryan, 37 Ohio State, supra, at p. 203, the court said when referring to the commitment to the house of refuge:

“The commitment is not designed as a punishment for crime, but to place destitute, neglected and homeless children, and those who are in danger of growing up as idle and vicious members of society, under the guardianship of the public authorities, for their proper care, and to prevent crime and pauperism.”

In Roth & Boyle v. House of Refuge, 31 Md. supra, the Court said:

“The House of Refuge is not a prison, but a school where reformation and not punishment is the end; . .

The court in this case further indicated that the mere fact that the institution in question may be used as a prison for juvenile convicts did not change it from a reformatory to a prison. The Ohio court also said in House of Refuge v. Ryan, supra, that the institution in question was a home and a school, not a prison. In Milwaukee Industrial School v. Milwaukee County, 40 Wis., supra, the Court said (point 6 of syllabi and at p. 333):

"The commitment of the child to an industrial school, as authorized by (he statute, is not an imprisonment.
"... When children must be confined for crime, common humanity to them, common regard for the future welfare of the State, requires, in many cases, that they should be sent to some place of detention . . . where they may have a reasonable opportunity of becoming better, instead of worse, by their confinement; where the prison authorities are not their mere jailers, but are charged with parental duty as well as with parental authority; and where education for good is not only not excluded, but is made a condition of their restraint.”

Under the force of these authorities, each one of them applicable to the condition that is presented to this court in the petition as filed in this claim, and considering further the attitude of our own state authorities, in classifying these institutions, must we not justly and properly contradict the statement that Pruniytown is a penal institution?

It is fundamental that persons sent to or committed to a penal institution must first be tried and convicted of a criminal offense in the manner provided for by the constitution and laws of a state and sentence duly and lawfully imposed in accordance therewith.

No state can legally condemn or imprison criminals in any other way, and to do so would be a gross violation of the constitutional rights of even the lowest and meanest criminal.

May I ask, then, docs the record before us prove that claimant has ever been convicted of a crime in a court of competent jurisdiction and given a sentence accordingly, to a penal institution? We look in vain for an answer so far as the proceedings in the instant claim are concerned, and we are rewarded only by the contention that there are bars on some of the windows at Pruntytown and therefore those detained there arc criminals, no matter how young and immature, irrespective of home environments that led to their confinement and notwithstanding the fact that they had never been convicted as provided by our own state constitution and criminal statutes; and notwithstanding that further no authority can be found (hat sustains the proposition or assumption that schools similar to Pruntytown are penal institutions. The state board of control, in charge of this institution, itself in its reports, does not classify this school as a penal institution; nor docs our own "Blue Book” classify it as such.

If Pruntytown is a penal institution, which by reason of the very term brands those confined there as criminals, and puts upon them an everlasting stigma that will be detrimental throughout (he remainder of their lives, then by the same line of reasoning the girls’ school at Salem and other similar institutions that we have for the reformation of youth throughout the state must be likewise classed. This conclusion shocks the conscience and makes us appreciate full well the significance of the phrase “man’s inhumanity to man.”

I cannot lend my judgment to the conclusion of the majority; not only is this now sixteen year old boy crippled for life, seemingly through no fault of his own, but we would now put upon him a further stigma at his tender age of being a criminal by reason of the fact that the juvenile court committed him to Pruntytown for reformation, instruction and further education.

I would overrule the motion heretofore made and filed by the state and hear the claim on its merits.  