dissenting in part.
In the majority opinion it is stated that the question presented for decision by the pleadings (the petition and demurrer) “is whether mandamus is the appropriate remedy to be pursued by petitioner in the relief prayed for in its petition.” (Emphasis added.) The opinion concludes by sustaining the demurrer and dismissing the petition. It thus holds that mandamus is not the appropriate remedy to be invoked, yet it does not indicate the proper remedy.
I take no issue with the opinion insofar as it holds that an action by mandamus is not an appropriate remedy. I think a proceeding under the declaratory judgment act, § 8-578, et seq., Code 1950, offers a more appropriate means to determine the rights of the several litigants than does an action of mandamus. The demurrer should have been sustained solely on that ground and the petition dismissed, and nothing should have been said about the powers and rights of the litigants. 34 Am. Jur., Mandamus, § 42, p. 835; 12 M. J., Mandamus, § 9, p. 346. However, as the powers of the State Highway Commission, (hereinafter at times called the Commission) under the questioned legislation are stated, the rights of litigants discussed, and the case, in reality, decided upon its merits, I am constrained to express my disagreement with that part of the opinion.
The majority opinion is a significant sequel to the decision in Almond v. Day, 199 Va. 1, 97 S. E. 2d 824, from which I dissented. It was there held that § 33-253, as amended by Acts 1954, ch. 319, did not violate § 185 of the Constitution of Virginia, and that the Commission was empowered to provide and operate a garage and terminal facilities and a fleet of busses for the transportation of passengers for hire over the bridge-tunnel project. There the court quoted as follows from Code § 33-253, as amended by Acts 1954, ch. 319, p. 389.
“ t* * # For the purposes of this § 33-253 the word “project” shall, in' relation to the project described in said paragraph (j), include * * * bus facilities for the transportation of passengers through or *155over said project if the Commission shall deem it advisable to * * * acquire such bus facilities, and the term “cost of the project” shall, * * * include the cost of * # * providing bus facilities if the Commission shall deem it expedient to * # # acquire such facilities as a part of the project described in said paragraph (j). # * *’ ” (Emphasis added.)
Mr. Justice Eggleston speaking for the majority then said:
“Pursuant to this authority the State Highway Commission proposes to provide and put into operation a shuttle bus system running from a terminal on LaSalle avenue in the city of Hampton to a terminal either at Willoughby Spit or at Ocean View in the city of Norfolk. The proposed bus operation will extend a distance of from six to nine miles, depending upon the location of the Norfolk terminal. The location of these terminals will afford passengers using the bridge-tunnel project access to the local transit system. Six busses will be required to provide the necessary service upon schedules varying with traffic conditions. A single garage, located in the city of Hampton, will be provided for the storage, servicing and maintenance of the equipment. It is estimated that the total cost of constructing the garage and acquiring the busses will amount to $315,000, and that thirty-one employees will be required to operate and maintain the bus system.” (Emphasis added.) Almond v. Day, supra, at page 4.
It will be observed that in the paragraph quoted by the court from § 33-253 it omitted some language, the pertinency of which now appears from that part italicized in the margin.1 The significance of the omitted language is now manifest for it clearly indicates that *156the legislative intent was that those operating the bus facilities would be employees of the Commission, thus disclosing that it was intended that the Commission would acquire and operate the facilities itself.
Even with the expressive and meaningful italicized language omitted, certainly from what was quoted by the court from § 33-253, as amended, Acts 1954, ch.319, and what was said immediately following the quotation, it is clear that the court then construed the statute under the belief (and rightly so from the exhibits in evidence and arguments at bar) that the Commission intended to construct the garage facilities, acquire the necessary busses by purchase and operate the “shuttle bus system” itself.
The bridge-tunnel project is a work of internal improvement and the source of the State’s right to construct, maintain and operate it is by virtue of the exception in § 185 of the Constitution which excludes “public roads” from the prohibition forbidding the State to “become interested in any work of internal improvement, except roads and public parks, or engage in carrying on any such work; * * *”
The majority opinion in Almond v. Day, supra, determined and held that the acquisition and operation of the garage and bus facilities were necessary to the maintenance and operation of the bridge-tunnel project and were a part of the internal improvement.
It must also be kept in mind that the Commission’s right to acquire the garage facilities and busses, and operate the busses over this stretch of road are dependent upon the fact that the shuttle bus system was held to be a part of this unique stretch of “public roads.”
In Almond v. Day, supra, in comparing the maintenance and operation of the shuttle bus facilities by the Commission to the maintenance and operation of a ferry as a part of the road, the court said:
“* * * Both operations are incidental and necessary to the main purposes of the highway, both are in the exercise of the State’s governmental functions, and not within the restrictive provision of Section 185.
“Indeed, we agree with the Attorney General that the acquisition and operation of the proposed bus facility are just as much an integral part of the highway as are the acquisition and operation of a ferryboat. Without such an adequate bus facility the bridge-tunnel project, as an essential link in the State highway system, will be incomplete and fall short of its full purpose in that it provides no facilities for the passage of pedestrians over it.” (Emphasis added.) At page 10.
*157The exception in § 185 of the Virginia Constitution, which excludes public roads from the category of internal improvements in which the Staté may not be interested, and thus allows the State to build, maintain and operate public roads; the fact that public roads are works of internal improvement and the maintenance and operation of public roads are governmental functions; the purpose of § 33-252, as amended, and its provision for payment of severance benefits to the Commission’s employees rendering services in connection with the project; and the evident meaning accorded the word “acquire” in interpreting § 33-253 in Almond v. Day, supra, where it was said at page 4 that the “total cost of constructing the garage and acquiring the busses will amount to $315,000 and thirty-one employees will be required to operate and maintain the bus system” constrain me to believe that “acquire” as used in the statute was'not intended to be accorded the same connotation as the word “procure.” Nor can I agree that “acquire,” as used in the statute,- authorizes the Commission to contract with a private enterprise to provide the shuttle bus service as its agent.
Yet in the majority opinion at hand, it is now said that the word “acquire” as used in the statute authorizes the Commission to “procure” the necessary busses by purchase or lease or by contracting with the Citizens Rapid Transit Company to provide and operate the shuttle busses as the agent of the Commission.
The meaning now accorded the word “acquire” and the interpretation of the language of the statute by the court presents an incongruous situation indeed. The Commission was, under the majority opinion, in Almond v. Day, supra, held to be authorized to operate the shuttle bus system because it is incidental to and a part of this stretch of public road. But now the Citizens Rapid Transit Company, said at bar to enjoy the charter powers of a common carrier of passengers, is operating the shuttle bus system as the Commission’s agent.
In this undertaking, the Commission, as principal, is engaged in the exercise of governmental powers and functions and enjoys the immunity of the State from suit for tortious injury to a passenger. 17 M. J., State, § 25; Wilson v. State Highway Commissioner, 174 Va. 82, 4 S. E. 2d 746; Hicks v. Anderson, State Highway Commissioner, 182 Va. 195, 28 S. E. 2d 629. Citizens Rapid Transit Company may not be held to the degree of care owed by a common carrier to a passenger, for it is likewise engaged in the performance *158of governmental functions, i.e., maintenance and operation of a highway as agent of the Commission. In fact, on principle it is doubtful if the company may be held liable at all for the negligent injury of a passenger while acting within the scope of its agency and employment. 17 M. J., State, § § 25, 26, and cases cited.
This presents a typical example of the undesirable results that may be expected when the State is permitted to exceed its true governmental powers (in this instance, the construction, maintenance and operation of public roads allowed by § 185 of the Constitution) and undertakes to engage in private enterprise, i.e., the operation of a bus system for the transportation of passengers for hire.
The opinion in Almond v. Day, supra, liberalized and broadened the meaning of the words “public roads” beyond their accepted and historical scope, and thereby placed the State in the transportation business under the guise of maintaining and operating a public road. The present opinion gives to the word “acquire” as used in § 33-253 a more inclusive and broader meaning than deserved or intended by the legislation. In each of these decisions the court has failed to envision its ultimate legal effect or to weigh its consequences upon the scales of reality.
It may be now pertinently asked: Since when have common carriers of passengers been empowered, either in their own right or as agents of the State Highway Commission, to acquire, maintain and operate a part of the “public roads” (which these shuttle bus facilities were held to be in Almond v. Day, supra), and thus exercise governmental powers and functions?
“* * * For the purposes of this § 33-253 the word ‘project’ shall, in relation to the project described in said paragraph (j), include approach highways thereto and bus facilities for the transportation of passengers through or over said project if the Commission shall deem it advisable to construct such approach highways or acquire such bus facilities; and the term ‘cost of the project’ shall, in relation to the projects described in said paragraphs (b) and (j), include an amount sufficient to reimburse the Commission for expenditures or advances theretofore made by the Commission on account of the cost of either or both of said projects, and shall, in relation to the project described in said paragraph (j) include provision of a stmt, deemed by the Commission to be sufficient for the purpose, to be utilized by the Commission for the payment of employment severance benefits to employees of the Commission rendering services in connection with the projects mentioned in paragraphs (g) and (i) of subsection (2) of said § 33-228, and shall include the cost of constructing approach highways and of providing bus facilities if the Commission shall deem it expedient to construct such approach highways or acquire such facilities as a part of the project described in said paragraph (j). * * *"