It is with some reluctance that I dissent from the opinion of the Court in this proceeding. The facts of the case are appealing, involving as they do the torture and murder of an aged woman by a brutal convict. Nevertheless, such facts do not justify the award of a writ of mandamus against the respondent. This proceeding involves the power of the Legislature to tax and appropriate money, derived therefrom, for public purposes. Thus consideration should be given to the constitutional powers of that body. *Page 640
Except as limited by the Constitution, the Legislature is vested with legislative powers which are almost plenary.Road Commission v. County Court, 112 W. Va. 98, 163 S.E. 815. Among such powers is the power to tax and appropriate the money so derived for public purposes. If the Legislature has no power to tax, it has no power to appropriate money. The powers of taxation and appropriation are coordinate. 1 Cooley, Taxation, 4th ed., Section 177. The Legislature of this State has no power to tax and appropriate money for private purposes.Woodall v. Darst, 71 W. Va. 350, 77 S.E. 264. Was the appropriation made by the Legislature in the instant case for a public or private purpose? If such appropriation was made to discharge a moral obligation, it was for a public purpose, notwithstanding that the money is to be paid to, and expended by a private person. Woodall v. Darst, supra.
I apprehend no material advantage will accrue to the public from the appropriation so made, as the money derived therefrom will be distributed to the persons entitled thereto under the will of Miss Ward, or distributed in accordance with the applicable statute. There is a line of authorities which clearly indicates that the moral obligation of a state must relate solely to a public matter. I have found few cases decided by this Court where a moral obligation was upheld, and in instances where it has been upheld, it would seem that a public benefit had accrued to the state, or the acts of the claimants were performed in furtherance of a public policy.
In Woodall v. Darst, supra, the principal question for decision was whether a member of the National Guard of this State should be compensated for the injury suffered by him in line of duty and without fault on his part. It is disclosed in the Woodall case that prior to the injury suffered by claimant, the Legislature had provided by statute that members of the National Guard injured without fault on their part should be provided for "in a monetary way." That statute, providing for compensation to a member of the National Guard, was in furtherance of the *Page 641 well-established duty and public policy concerning a military establishment for this State. It is a matter of history that even before the Revolution, and particularly since the establishment of the United States of America, a militia was provided for the maintenance of order and protection of the citizens. Woodall was assisting in carrying out that public policy, in the course of which he suffered injury. The State, having promised by legislative enactment to compensate him, was under a moral obligation of the highest type to do so.
In the case of Glover v. Sims, 121 W. Va. 407, 3 S.E.2d 612, this Court upheld a moral obligation providing for the payment of compensation for property from which the State or one of its agencies had derived benefit. A similar situation existed in the case of Slack v. Jacobs, 8 W. Va. 612.
In other jurisdictions the question of moral obligation frequently arose in connection with the payment of bounties to persons volunteering for service in the Army of the United States during the Civil War. In almost every instance where the public interest was so involved, the courts upheld the appropriations as valid and as resting on a moral obligation. See Taylor v. Thompson, et al., 42 Ill. 1; City of Lowell v.Oliver, 90 Mass. 427. On the other hand there is a line of decisions which unerringly holds that the Legislature had no right to make provision for donations out of public funds, or to compensate people for purely private expenditures. Freeling,et al. v. Hastings, et al., 10 Mass. 570; Mead v.Inhabitants of Acton, 139 Mass. 341, 1 N.E. 413.
Depending upon constitutional provisions, actions or suits are permitted against the sovereign in some jurisdictions. But in this State the Constitution forbids the State of West Virginia to be made a defendant in any court of law or equity. Constitution, West Virginia, Article VI, Section 35. Nor shall the credit of the State be granted "to, or in aid of * * * any * * * person." Constitution, West Virginia, Article X, Section 6. *Page 642
I do not think that the facts in the instant case show that a moral obligation existed for which an appropriation of public funds could lawfully be made. Admittedly, the failure to confine and supervise the convict gave him an opportunity to commit the crime which gave rise to this litigation. But it cannot be controverted that the confinement and supervision of the convict was a governmental function of the highest character. To say that a moral obligation calling for the payment of money arises out of the failure of the sovereign, through its officers, agents, and employees, properly to exercise the powers of government is to create needless confusion. Such action gives rise to an intolerable state of affairs, and the government would be reduced to the extremity of defending in court every act, every policy and every course of conduct adopted by its constitutional officers and agencies.
In Cashman v. Sims, 130 W. Va. 430, 43 S.E.2d 805, the rule for determining a moral obligation is stated in the following language:
The sound and just general rule by which a moral obligation of the State in favor of a private person may be recognized, and for the payment of which a valid appropriation of public funds in the interest of the public may be made by the Legislature, requires the existence of at least one of these components in any particular instance: (1) An obligation or a duty, by prior statute created or imposed upon the State, to compensate a person for injury or damage resulting to him from its violation by the State or any of its agencies, or to compensate him for injury, damage, or loss sustained by him in or by his performance of any act required or authorized by such statute; or (2) an obligation or a duty, legal or equitable, not imposed by statute but created by contract or resulting from wrongful conduct, which would be judicially recognized as legal or equitable in cases between private persons."
Although I assented to that rule, I think the second proposition stated in the above quoted rule is inaccurate where an obligation arises in the performance of a governmental *Page 643 function, for the reason that there is no analogy between a private person and a sovereign state in relation to the exercise of such functions and powers. To that extent I am not in agreement with the rule stated in the Cashman case.
The gravamen of the majority opinion will be found in that part discussing scienter or knowledge of the officials and employees of the penitentiary and Huttonsville Medium Security prison relating to the criminal tendencies of the convict who killed Miss Ward, as evidenced by his prior criminal acts. I do not think that it necessarily follows that, because those officials and employees knew of such criminal tendencies, they are charged with responsibility for the acts of that person in committing a vicious crime.
Moreover, in every instance wherein a person is sentenced to a jail, penitentiary, or other penal institution in this State, the officials in charge of such jail, penitentiary or other penal institution, must, of necessity, know that the person has been convicted of a certain type of crime. Carrying the reasoning of the majority opinion to its logical and ultimate conclusion, such knowledge would import that if a person has been convicted of a crime of a certain character that he must be carefully supervised and controlled, even after his discharge from confinement, so that he cannot commit a similar crime. The vague nature of the duty imposed by the majority opinion would hint that the administrative and executive officers of the State, having such knowledge, should continue to supervise and control a discharged prisoner to prevent his committing a similar crime, and in the absence of such supervision and control the State would incur a moral obligation. Nor do I believe that the public should be required to pay for the acts of prisoners when confined, or of a prisoner who has been discharged. It will not do to say that supervision and surveillance should continue only so long as a prisoner is in custody, as such an entry into the realm of moral obligation of the State has few, if any limitations. *Page 644
I think that even if we consider the failure of the officials and employees in charge of the convict in this case properly to confine him, to constitute negligence, such negligence is not the efficient and proximate cause of the death of Miss Ward. Although the majority opinion attempts to draw an analogy between the convict and a dangerous animal, that analogy is not well taken. An animal, so far as science has been able to ascertain, has little, if any, reasoning powers and is guided solely by instinct. The convict in this case was a human being, capable of thinking and reasoning, and when he was free from the custody of his lawful keepers, could voluntarily carry out any objectives which might occur to his mind. Of course, it may be said that the past conduct of a person is a fairly reliable guide for prediction of his future actions, but that is not necessarily so, since the future conduct of a human being cannot be gauged with accuracy. The mental processes of the convict and his acts in pursuance thereof were independent acts, not caused by the negligence of the officials of the State. The causal connection between the negligence of the officials and employees of Huttonsville Medium Security Prison having been broken, the proximate cause of the injury to Miss Ward was the act of the convict himself. The negligence of the officials and employees above mentioned afforded him an opportunity to perform the independent act done by him, but did not cause it. Thomas v. Sloss-Sheffield Steel Iron Co. (Ala.), 39 So. 715; Henderson v. Dade Coal Co. (Ga.),28 S.E. 251. See Stuck v. Railway Company, 76 W. Va. 453, 86 S.E. 13;Anderson v. Railroad Co., 74 W. Va. 17, 81 S.E. 579; Donald v.Coal Co., 86 W. Va. 249, 103 S.E. 55.
The result reached in this case will be a starting point for the assertion of a moral obligation against the State, incurred in performing governmental functions. I do not think that this State, even with the assent of, or in obedience to, the Legislature, should be required to pay for the acts of persons escaped from public penal institutions. If compensation be paid to persons for injury, inflicted by *Page 645 a convict after he has been tried, why should not the State compensate the person injured by the original act constituting the crime? It would be almost as reasonable to say that a person injured by a second offender, after discharge of that offender from imprisonment, should be compensated.
I believe that public funds raised, as they are, by taxation which, in some instances, is burdensome, should not be dissipated by the assumption of a moral obligation when none exists.
Therefore I would deny the writ.