dissenting:
I find myself unable to concur in the decision of the majority in this proceeding. I have come to the conclusion that an act of negligence by an officer, agent, servant or employee of the State, arising out of the performance of a purely governmental function, in connection with highway maintenance, does not furnish a sound basis for a legislative finding of a moral obligation, on the part of the State, to compensate a person who suffers injury to his person or property by reason of such negligence or authorize the appropriation of public funds of the State to provide for the payment of such compensation. I concede that this position departs from principles laid down in certain recent decisions of this Court, in which I participated, and from which holdings I did not dissent, the latest being State ex rel. Catron v. Sims, Auditor, 133 W. Va. 610, decided at this term. However, mature consideration of the question now convinces me that such decisions can not be supported in logic or sound reasoning. Having stated that much, I think it appropriate to discuss the cases which have been decided by this Court on questions of moral obligation of the State, and to point out the danger of the application of the principles heretofore announced to acts of simple negligence on the part of officers, agents, servants or employees of the State in connection with the construction and maintenance of the highways of the State. I offer no apology for my present views, and the gratuitous emphasis placed on the position taken by me in other cases does not affect me. I have not sought to evade my responsibility, in part, for those holdings.
The basis, and supposed necessity, of the principle that a Legislature may appropriate money to redeem a moral obligation of the State, arises from the provisions of *192Section 35, Article VI, of the Constitution of this State, which now reads:
“The State of West Virginia shall never be made defendant in any court of law or equity, except the State of West Virginia, including any sub-division thereof, or any municipality therein, or any officer, agent, or employee thereof, may be made defendant in any garnishment or attachment proceeding, as garnishee or suggestee.”
The effect of these provisions was, of course, to close the courts of the State to any suit, action or proceeding, the purpose of which would be to impose liability upon the State of any character, except in garnishment or attachment proceedings. It follows, therefore, that should a case arise wherein a person suffers damage through an agency of the State or the negligence of its employees, the only resort would be to that division of the State government which has control of its public funds, and power to appropriate the same for a public purpose. This is the basis of the moral obligation theory which, with increasing frequency, has been advanced in recent years.
While the question has recently become more important, it was raised early in the history of the State in the case of Slack v. Jacob, 8 W. Va. 612. The Legislature appropriated a sum of money to meet the cost of removing the records and archives of the State from Charleston to Wheeling, shortly after the adoption of our present Constitution, which provided that:
“The Seat of Government shall be at Charleston, until otherwise provided by law.”
The Legislature, at its 1875 session, passed an act to remove the seat of government temporarily to Wheeling, and following that enactment the records, papers and archives of the State were removed to Wheeling, involving some expense which the State was undertaking to assume and pay. By the act of removal of the Capital, the Governor was authorized to cause suitable accommodations to be prepared in the City of Wheeling for the several departments of the State government, and to remove *193thereto the public records and other State property then in the City of Charleston to the City of Wheeling. It was argued that one of the provisions of Section 38 of Article VI of the Constitution which provided:
“* * * nor shall any Legislature authorize the payment of any claim or part thereof, hereafter created against the State, under any agreement or any contract made, without express authority of law; and all such unauthorized agreements shall be null and void.”
did not authorize such a contract. In that connection, the Court said:
“But whether it does authorize such contract, or not, it is not uncommon for persons to supply the needs of the government or its different departments without contracts, relying on the voluntary justice of the State to pay reasonably therefor. And such transactions have been regarded as not within the true meaning of the said thirty-eighth section, and such voluntary payments have been made with the approval of all departments of the government. According to our understanding, that part of the said thirty-eighth section only applies to claims based on agreements or contracts made without express authority of law, and the section declares such unauthorized agreements null and void. It does not apply to claims predicated upon simple justice and. right, and never was intended to prevent the Legislature from voluntarily doing justice and right where the claim is not predicated on a contract made without express authority of law. An opposite construction, it seems to us, would be against the spirit and policy of the provision itself, if not its very letter, and would necessarily operate great evil and injury in the daily as well as periodical operations, of the government in its different departments; and would in fact, necessarily greatly embarrass, if not completely obstruct, the successful operation of the government, which was not intended by said section.”
It will be observed that the situation with which the Court was then dealing was a matter of contract, express or implied, through which the State would receive bene*194fits, and, which, we may assume, created a moral obligation to pay a fair compensation for any services rendered. There was not involved in that case, and there is no reference therein, to any obligation of the State to compensate for the negligent act of any officer, agent, servant or employee of the State. I think the case of Slack v. Jacobs, supra, should be interpreted as applying to the situation then presented to the Court, and not be treated as the basis for creation of a moral obligation in distinguishable situations.
The next case in which the subject of moral obligation was considered was that of Woodall v. Darst, 71 W. Va. 350, 80 S. E. 367. It was there held that the Legislature was without the power to levy taxes or appropriate public revenues for purely private purposes; but that it had power to make an appropriation to a private person in the discharge of a moral obligation of the State, and that such an appropriation was for a public and not a private purpose. In that case the moral obligation was supposed to arise from an injury sustained by a member of the West Virginia National Guard who was injured while on duty. There was no question of the negligence of any officer, agent, servant or employee of the State. Furthermore, there was a statute in existence which provided that provision should be made for any member of the national guard who might become incapacitated while on duty, “or who shall without fault or neglect on his part be wounded or disabled while performing any lawfully ordered duty.”, and it was held that this policy, and the provisions quoted, covered the case of the petitioner in that proceeding.
The next case was that of Glover v. Edgar B. Sims, Auditor, 121 W. Va. 407, 3 S. E. (2d) 612. That was a case where the Legislature had appropriated money “for full payment of all outstanding open accounts of the Athletic Department of West Virginia University, to be expended as the Board of Control may direct.” It was developed in that proceeding that the athletic department of the University had contracted debts for services and supplies fur*195nished to it of which the people of the State had accepted the benefit, and it was held that, in such circumstances, the Legislature could declare the same to be a moral obligation of the State and appropriate money to meet the cost thereof.
It will be observed that up to this point the theory of moral obligation had never been applied to cases of negligence of any character, on the part of any officer, agent, servant or employees of the State. But in the case of State ex rel. Cashman v. Edgar B. Sims, Auditor, 130 W. Va. 430, 43 S. E. (2d) 805, decided in 1947, a claim based in part on alleged negligence of the State was presented. Cashman, while employed as a physician in Hopemont Sanitarium, an institution for the treatment of tubercular patients, contracted tuberculosis. It is not clear that he based his claim upon any allegation of any particular act of negligence on the part of the State or its employees, but the case did present an opportunity to define the limits to which the Legislature might go in appropriating public funds, and it was there held that:
“To constitute a valid declaration by the Legislature of the existence of a moral obligation of the State for the discharge of which there may be an appropriation of public funds in the interest of the public welfare, it is necessary, as a general rule, that there be an obligation or a duty, by prior statute created or imposed upon the State, to compensate a person for injury or damage sustained by him by reason of its violation by the State or any of its agencies, or to compensate him for injury, damage or loss incurred by him in or by his performance of any act authorized or required by such statute; or 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.”
In that case, it was found that the facts did not, under the rule therein announced, authorize the appropriation sought to be enforced in that case.
The next case was that of State ex rel. Davis Trust Co., *196Admr., etc. v. Edgar B. Sims, Auditor, 130 W. Va. 623, 46 S. E. (2d) 90. In that case, the officers and agents of the State, in control of a prison, permitted an inmate, convicted of murder, to have certain privileges, resulting in the murder of an aged lady by such inmate, and an award of compensation, to her personal representative, based upon a legislative declaration of a moral obligation to pay the same, was upheld by this Court, ostensibly, on the theory of the negligence of the officers and agents of the State. There was a dissent from that decision by Judge Lovins. It may be that the holding in that case sustained the theory that the Legislature has authority to appropriate public funds to compensate for negligence on the part of officers and agents of the State.
The next case considered was that of State ex rel. Adkins, Admr., etc. v. Edgar B. Sims, Auditor, 130 W. Va. 645, 46 S. E. (2d) 81. That case involved the death of six persons when an automobile in which they were travelling went over a precipitous bank on a state highway, and it was contended that this event resulted from the failure of the State to properly construct and maintain guard rails along the highway, provide markers, and paint a center line thereon at that point. It may be argued that these contentions involved a claim of negligence on the part of the State Road Commission, and its employees, in failing to provide such guard rails, markers and painting of such center line. In that case, we held that:
“The failure of the state road commissioner, in the exercise of the discretion vested in him to expend public moneys, appropriated by the Legislature for the construction, maintenance and repair of the public highways of this State, to provide guard rails, place road markers or danger signals, and paint center lines on paved highways, at a particular point on any highway in this State, does not create a moral obligation on the part of the State to compensate a person injured on such highway, allegedly resulting from such failure.”
It was held in that case that the failure to provide guard rails, place road markers, and paint center lines on the *197paved portion of the highway did not constitute negligence, but it is stated in the body of the opinion that in making this holding:
“We do not mean to say that situations may not arise where the failure of the road commissioner properly to maintain a highway, and guard against accidents, occasioned by the condition of the road, may not be treated as such positive neglect of duty as to create a moral obligation against the State, for which the Legislature may appropriate money to pay damages which proximately resulted therefrom. But this is not such a case. * * *”
In the case of State ex rel. Bennett, v. Sims, Auditor, 131 W. Va. 312, 48 S. E. (2d) 13, Bennett was injured by an explosion of dynamite while engaged as an employee of the State Road Commission, and while working on a State highway. In this case the rule in the Cashman case was adopted and applied. It was there held:
“Injuries sustained by an employee of the State, in the course of his employment, in circumstances which would entail liability for damages on a negligent private employer, in an action therefor, may provide the basis for a declaration of a moral obligation on the part of the State to compensate such employee for his injuries, and justify a legislative appropriation for that purpose.”
This, of course, is a clear use of the doctrine laid down in the Cashman case. It was held that the facts did not warrant the appropriation made to Bennett, an'd the writ which would have made such appropriation effective was denied. Judges Kenna and Riley dissented, being of the opinion that the facts and circumstances of the case justified the issuance of the writ.
As stated earlier in this dissent, the cases based on alleged negligence, referred to above, plainly recognize the power of the Legislature to appropriate public funds to compensate persons injured in their person or property through the negligent acts of officers, agents, servants and employees of the State; and the Cashman and Bennett cases, in particular, adopted the principle that such appro*198priation can be made if in similar litigation between private persons a recovery could be had. Each member of this Court who joined in those decisions is, in part, responsible therefor. However, recent developments, evidenced by the case at bar, and others submitted at this term, convince me that, in so far as the rule laid down in the Cashman case creates the test for legislative appropriations as being, in all cases, that existing between private litigants, the same is erroneous, and ought to be reconsidered. A moment’s thought will convince anyone that the position of the State as a litigant, even if the constitutional immunity of the State from suit or action were removed, would be entirely different from that of private litigants. Private litigants have no immunity from suit as between each other. In private litigation, if it be shown that a negligent act has been committed, and injury results therefrom, the injured person is entitled to recover damages; whereas, between a private litigant and the State, if an action between them were possible, under our Constitution, there could be no liability imposed on the State for the negligent acts of its officers, agents, servants and employees, while engaged in the performance of a purely governmental function. That principle was last announced by this Court in the case of Hayes v. The Town of Cedar Grove, etc., 126 W. Va. 828, 30 S. E. (2d) 726, and is recognized as settled law in this State. This being true, the test laid down in the Cashman case cannot be properly applied to a case involving negligence on the part of an officer, agent, servant or employee of the State. It may be proper to apply it to other cases wherein charges of negligence are not involved.
The general theory of the Cashman case has given rise to the belief that the Legislature has plenary power to make appropriation of public funds to compensate individuals who suffer injury and damage by reason of the negligent acts of the officers, agents, servants and employees of the State; and the claim has been so far extended as to include alleged negligence in maintaining the highways of the State. This theory is in direct con*199travention of the express provisions of Section 37, Article 4, Chapter 40, Acts of the Legislature, First Extraordinary-Session, 1933, (1949 Michie’s Code, 17-4-37), which reads: “The State shall not be made the defendant in any proceeding to recover damages because of the defective construction or condition of any state road or bridge.”, although it is fair to state that Section 33 of the same Article provides that: “The commissioner shall inspect all bridges upon state roads. If any bridge is found to be unsafe, the commissioner shall promptly condemn, close and repair it.” The language employed is plain and simple and cannot be explained away as is attempted to be done in the majority opinion, or nullified by the creation of the Court of Claims. Of course, the failure to inspect a bridge at reasonable intervals might be termed negligence, for which, under general law, there could be no recovery against the State, both by reason of constitutional immunity against suit or action, and the rule that a governmental body is not liable for the negligent acts of its officers, agents, servants and employees while engaged in the performance of purely governmental functions.. These rules are not new. The immunity of the sovereignty against being called into its own court to answer for breaches of contract or for a tort was fully established at common law, and the principle is one of the landmarks of the law.
The majority decision in this case supports the proposition that while a person injured through the negligent act of an officer, agent, servant or employee of the State may not recover damages for such negligence, if the same-arises from his performance of a purely governmental function, nevertheless, the Legislature may appropriate public moneys to compensate persons so injured. Of course, such a claim cannot be tested in courts until the-State’s constitutional immunity from suit or action is. removed. If the State’s constitutional immunity from suit, or action should be removed, and the right of individuals, to sue the State recognized, there could be no recovery in the courts of the State for acts of negligence on the-*200part of officers, agents, servants and employees of the State while engaged in the performance of purely governmental functions, unless the rule against liability for such negligence was also destroyed by legislative act or otherwise; and yet in the absence of any such change in our Constitution, we permit these constitutional and legal inhibitions to be completely nullified, by indirect methods, on the theory of a moral obligation.
I do not believe it has ever been the intention of the Legislature of this State, even if it had the power to do so, to assume liability for negligence of employees of the State, and, particularly, the employees of the State Road Commission, in the construction and maintenance of the highways of this State, yet the rule announced in the majority opinion, if followed by the Legislature, will inevitably lead to that result. The appalling loss of life and damage to property, resulting from highway accidents in this State, ought to cause responsible public officials of the State to pause in the application of doctrines which inevitably lead to the assumption of full responsibility by the State for negligence of State employees who are connected with our highway system. It is public knowledge that accidents, many times involving loss- of life, are occurring every day of the year in this State. These accidents may be attributed to different causes, but in many cases they may be fairly attributed to the condition of the highway. The fact that the driver of an automobile may himself be negligent does not preclude a claim before the Legislature that it was not his negligence that caused the accident and damage, but the condition of the highway caused by the negligent act of some State employee. Of course, each case would have to stand upon its own facts; but experiences so far have not created the impression that the Legislature would be too strict in the application of rules of law which ordinarily prevail when negligence cases are'brought before the courts of the State. In saying this I do not mean to reflect on the Legislature. I am merely recognizing one of the “facts of life.” I do not accept as permissible the obvious pur-. *201pose of the majority opinion to charge those not agreeing therewith with lack of confidence in the Legislature to honestly perform its duty. I regret that such suggestion has been made, as well as the language employed in making it. In effect, we are permitting the Legislature to supersede the courts in the determination of liability for negligence in, all cases where the courts are powerless to grant relief under constitutional, statutory or general law. This amounts to the exercise of judicial power by the Legislature, in plain violation of constitutional provisions respecting the powers of the separate branches of our State government.
In the case at bar, there is evidence which tends to show negligence on the part of employees of the State Road Commission in failing to inspect and keep in repair the bridge where the damage to claimant occurred. I raise no question on that point. My point is that the Legislature does not possess the power to declare that the negligence of an officer, agent, servant or employee of the State can be made the basis of a declaration of a moral obligation of the State to pay a claim, which, under well recognized rules of constitutional and statutory law, and the decisions of this Court cannot be made the subject of recovery by any suit, action or proceeding against the State. In this connection, I do not believe that the Legislature can, by an act for the special benefit of a particular person, repeal by implication, or otherwise, a general act embodying the general policy of the State, and in so doing nullify a constitutional provision.
It is idle to say that the proceeding in the case at bar is not, in effect, a proceeding against the State. In Mahone v. The State Road Commission of West Virginia, 99 W. Va. 397, 129 S. E. 320, it was held that:
“The State Road Commission of West Virginia is a direct governmental agency of the State, and as such is not subject to an action for tort.”
In Stewart v. The State Road Commission of West Virginia, 117 W. Va. 352, 185 S. E. 567, it was held that:
*202“The constitutional immunity of the state from suit extends to its governmental agencies. * * *”
No one will contend that the Auditor of the State does not perform a governmental function, or is not an agent of the State having control of its public funds. The present proceeding is one which directly involves- the State, inasmuch as it seeks to compel the State Auditor to recognize a requisition which withdraws money from the State Treasury. If the statutory provisions, cited above, to the effect that the State shall not be made the defendant in any proceeding to- recover damages because of the defective condition of any State road or bridge means anything, it means that the State may not, through a ‘mandamus proceeding, be compelled to deplete its treasury by the payment of claims arising from defective conditions of any State road or bridge.
I think the time has come to face anew the application of the doctrine of moral obligation to alleged negligent, conduct on the part of the State and its agencies, in respect, particularly, to claims based on alleged negligence-of the State Road Commission and its employees. It may be that the constitutional provision inhibiting the State from being made the defendant in any of the courts of the State, is an unwise provision, and should be discarded for one which will permit suits against the State by citizens, allegedly wronged by negligent conduct of agents, and employees of the State. But, if this were done, there could be no recovery on claims of such negligence, so long, as the rule of law that a State is not liable for the negligence of its officers, agents, servants and employees while-engaged in the performance of a purely governmental function remains in force. If the constitutional inhibition was removed, the power of the Legislature to authorize suits or actions against the State, and to change the rule so as to allow recovery for negligence in the performance-of governmental functions would be full and complete. If that were done, then claims for damages could be settled in the courts of the State as disputes between private litigants are settled in such courts. But, until these-*203changes are made, it seems to me that the safe and sound rule is to apply the Constitution as it is written, and to apply legal rules as they are settled and established. There is no halfway position which we can take with any logic or consistency; either we must hold, as settled law, that the State cannot, under any pretense, compensate citizens for acts of negligence on the part of its agents and employees, or go to the other extreme and permit the Legislature to appropriate money for every negligent act committed by an employee of the State, which the Legislature may think justifies an award of compensation. This Court has attempted to retain some control over this character of appropriations under the theory that when a situation becomes judicial in its nature, it has power to overrule the finding of the Legislature. I do not think that this asserted power is sufficient to control the situation as it now is, and as it promises to be in the future.
The questions involved in this case are among the most important with which this State is confronted at the present time. There never will be a time when it will be possible to keep the highways, including bridges, in an absolutely safe condition. Accidents are bound to happen, as is evidenced by the continuing record of disaster pictured in the press from day to day. I do not deem it a wise policy for the State ever to assume full responsibility for the condition of the highways. I think the Legislature has plainly said that the State is not liable for accidents due to the condition of its highways. The general law is that the State is not liable for negligent acts of its servants and employees performing governmental functions. Yet in the face of what the Legislature has enacted, and in the face of controlling legal rules, it is now embarking upon a policy, approved by this Court, of allowing compensation for every mishap on the public highways of this State, due in any degree to the negligence of a State employee, for which, at the moment, it seems appropriate to compensate for, by the use of public funds. I think the course laid down by the majority opinion in this case involves grave consequences as it effects public funds *204in the State Treasury, and by this dissent I register my protest against it.
I am authorized to state that Judge Lovins joins in this dissent.