Since it appears from the allegations of the declaration that recovery is sought from the Board of Education for death by wrongful act incurred by the plaintiff's decedent as a result of negligence of the Board's servants while driving a school bus engaged in taking children to *Page 240 and from school, it would seem clear that the Board of Education was then engaged in the discharge of a governmental duty and hence exercising in part the sovereignty of the State, under our West Virginia cases which are cited in the Court's opinion, and consequently the first certified question should be answered in the affirmative. However, the Court's opinion, in discussing this point, notes with approval the holding in the case of Krutili v. Board of Education, 99 W. Va. 466,129 S.E. 486, that in the absence of a statute making them so, boards of education are not liable for negligence that occurs in the performance of a governmental function, indicating quite clearly that the Legislature can make them liable for a tort committed while exercising the right of sovereignty. I believe that this theory, if carried to its logical conclusion, will undermine our constitutional provision against suing the State and many previous holdings of this Court. In Stewart v.Commission, 117 W. Va. 352, Syl. 1, 185 S.E. 567, we held, without citing the Krutili case, that Section 35, Article VI of our Constitution is "absolute", and the concluding paragraph of the opinion reads as follows: "It should go without saying that the legislature is without capacity to pass a law affecting the constitutional immunity from suit of the state or one of its governmental agencies. Alabama Industrial School v. Addler, supra." That principle is expressly approved in Sims v. Fisher,125 W. Va. 512, 538, 25 S.E.2d 216, citing, among others, theStewart case. To my mind it is clear that if the Legislature has power to encroach upon an absolute constitutional provision, it may then abolish it. With that I do not agree.
With the first question answered in the affirmative and the case of Utz v. Board of Education, 126 W. Va. 823,30 S.E.2d 342, having decided the point involved in the second question certified, the third question becomes entirely academic. Since a board of education cannot be sued in tort for the negligence of the drivers of its school busses in the performance of their duty in *Page 241 transporting children to and from school, it is not necessary to decide what the effect of alleging insurance under Code,18-5-13, in a declaration filed in such an action is, and whether it is reached by demurrer.