concurring:
I concur with the ultimate result in this case that W.Va.Code, 29-12-5, is not invalid as waiving the State’s constitutional immunity.1 However, I believe that the majority may have raised some false hopes in its lengthy discussion of “the specious tenet of law that state agencies are immune from suit under W.Va. Const, art. VI, § 35.” (Majority Opinion, p. 680) I do not believe that we can nullify a constitutional command. I recognize that a number of state courts have abandoned their common law or court-created doctrine of sovereign immunity. This is understandable and part of the continual process of court development and modification of common law principles to meet the changing needs of society. See Morningstar v. Black & Decker Manufacturing Company, 162 W.Va. 857, 253 S.E.2d 666 (1979).2 I am aware, however, of no court which has judicially abolished sovereign immunity set by its constitution.
Our constitutional immunity barring suits against the State is as firmly embedded in our law as its counterpart, the Eleventh Amendment, is in the federal law. This amendment prohibits federal courts from entertaining suits brought by citizens against any state3 and its principles were recently summarized in Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 684, 689, 102 S.Ct. 3304, 3314, 3317, 73 L.Ed.2d 1057, 1068, 1072 (1982):
“A suit generally may not be maintained directly against the State itself, or against an agency or department of the State, unless the State has waived its sovereign immunity. Alabama v. Pugh, 438 U.S. 781, 57 L.Ed.2d 1114, 98 S.Ct. 3057. If the State is named directly in the complaint and has not consented to the suit, it must be dismissed from the action. Id., at 782, 57 L.Ed.2d 1114, 98 S.Ct. 3057....
“The Eleventh Amendment does not bar all claims against officers of the State, even when directed to actions taken in their official capacity and defended by the most senior legal officers in the executive branch of the state government. ...
******
“These cases make clear that the Eleventh Amendment does not bar an action against a state official that is based on a theory that the officer acted beyond the scope of his statutory authority or, if within that authority, that such authority is unconstitutional. In such an action, however, the Amendment places a limit on the relief that may be obtained by the plaintiff. If the action is allowed to proceed against the officer only because he acted without proper authority, the judgment may not compel the State to use its funds to compensate the plaintiff for the injury.” (Footnotes omitted)4
*760Our treatment of state sovereign immunity is rather similar in that while we recognize that the State or its agencies are not subject to suit, Ohio Valley Contractors v. Board of Education of Wetzel County, 170 W.Va. 240, 293 S.E.2d 437 (1982), in certain instances state officials may be sued, Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979).5 We have also limited sovereign immunity to those agencies actually performing direct state functions utilizing state revenues. E.g., Woodford v. Glenville State College Housing Corp., 159 W.Va. 442, 225 S.E.2d 671 (1976).
The majority quotes extensively from Tompkins v. Kanawha Board, 19 W.Va. 257 (1881), and suggests it will support the erosion of sovereign immunity. I do not agree. It must be remembered that the defendant in Tompkins involved a public corporation created by a legislative act charged with certain responsibilities over the navigability of the Kanawha River. It was not under the direct control of the State and apparently received its funds from tolls. This Court held it was not immune from suit. We adopted the same view in regard to the West Virginia Turnpike Commission in Hope Natural Gas Co. v. West Virginia Turnpike Commission, 143 W.Va. 913, 105 S.E.2d 630 (1959).
Furthermore, I do not subscribe to the majority’s inference that the following provisions from Article III of the Constitution of West Virginia, viz., Section 1 (life, liberty, and pursuit of happiness); Section 9 (eminent domain); Section 10 (the due process clause), or Section 17 (open courts), might be read individually or collectively to supersede the sovereign immunity section.
This Court traced the history of the open courts provision of Section 17 of Article III in McHenry v. Humes, 112 W.Va. 432, 164 S.E. 501 (1932). See also State ex rel. Herald Mail Company v. Hamilton, 165 W.Va. 103, 267 S.E.2d 544 (1980). More recently, we discussed the genealogy of the due process clause in Markey v. Wachtel, 164 W.Va. 45, 264 S.E.2d 437 (1979). The majority’s reference in the present case to our eminent domain and general life, liberty, and pursuit of happiness provisions of our Constitution are a bit mystifying to me. In any event, I find nothing in any of the historical antecedents of these provisions which would cause me to conclude that they warrant abolishing the concept of sovereign immunity which is embodied in Section 35 of Article VI of our Constitution.
Finally, I should note a matter which is *761implicit in Syllabus Point 2 of the opinion.6 There may be occasions when the amount sued for may be in excess of applicable policy limits, or there may be deductible clauses that in effect require the State to assume some portion of a final judgment. In these situations, I would have no doubt that the State’s sovereign immunity would apply and to this extent the trial court would permit utilization of the immunity.
. In the few other states where similar statutes exist, their courts have rather uniformly upheld such statutes. E.g., Pajewski v. Perry, 363 A.2d 429 (Del.1976); Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 (1957).
. We, along with other courts, have abolished common law immunity for a variety of local governmental units which did not have the benefit of the state’s constitutional immunity. E.g., Gooden v. County Commission of Webster County, 171 W.Va. 130, 298 S.E.2d 103 (1982); Ohio Valley Contractors v. Board of Education of Wetzel County, 170 W.Va. 240, 293 S.E.2d 437 (1982); Long v. City of Weirton, 158 W.Va. 741, 214 S.E.2d 832 (1975).
. The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
. In note 17 of Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. at 683, 102 S.Ct. at 3314, 73 L.Ed.2d at 1068, the United States Supreme Court stated:
“Although the Amendment does not literally apply to actions brought against a State by its own citizens, the Amendment long has been held to govern such actions. Hans v. Louisiana, 134 U.S. 1, 33 L.Ed. 842, 10 S.Ct. 504. *760See Employees v. Missouri Public Health Dept., 411 U.S. 279, 280, 36 L.Ed.2d 251, 93 S.Ct. 1614, 1615; Edelman v. Jordan, 415 U.S. 651, 662, 39 L.Ed.2d 662, 94 S.Ct. 1347, 1355. Nor does the Amendment literally apply to proceedings in admiralty. Again, however, the Court has found it to govern certain admiralty actions. See In re New York, 256 U.S. 490, 500, 65 L.Ed. 1057, 41 S.Ct. 588, 590.”
While Florida Dept. of State v. Treasure Salvors, Inc., supra, was a plurality opinion, it is clear that the main dissent authored by Justice White and joined by Justices Powell, Rehnquist and O’Connor did not disagree as to the legal principles surrounding the Eleventh Amendment but as to their applicability under the facts.
. Syllabus Points 1 and 2 of Ables v. Mooney, supra, state:
“1. 'State officers who, under the color of the authority of unconstitutional state legislation, are guilty of personal trespasses and wrongs, may be sued, although the Constitution of this State provides that the State shall never be made defendant in any suit at law or in equity; and suits may be maintained against such officers in their official capacity, to arrest or direct their official action, by injunction or mandamus, when said suits are authorized by law, and the act to be done or omitted is purely ministerial, in the performance or omission of which the plaintiff has a legal interest; but in other cases such suit cannot be maintained when such officer is only a nominal party, for such suit is then tantamount to a suit against the State.’ [Emphasis in original] Syllabus Point 3, Blue Jacket Consolidated Copper Co. v. Scherr, 50 W.Va. 533, 40 S.E. 514 (1901).
"2. In certain instances a suit may be maintained against a State official in his individual capacity, notwithstanding the constitutional immunity provision found in Article VI, Section 35 of the West Virginia Constitution, where the relief sought involves a prospective declaration of the parties’ rights. However, where the relief sought involves an attempt to obtain a retroactive monetary recovery against the official based on his prior acts and which recovery is payable from State funds, the constitutional immunity provision bars such relief.”
. Syllabus Point 2 states: "Suits which seek no recovery from state funds, but rather allege that recovery is sought under and up to the limits of the State’s liability insurance coverage, fall outside the traditional constitutional bar to suits against the State.”