Maxwell, Judge:
The circuit court of Summers County overruled a demurrer to the plaintiffs’ bill, sustained a demurrer to and dismissed defendants’ plea in abatement and attempted to certify to us both bill and plea. ' As the plea was dismissed, we cannot consider its sufficiency on certification; but that inhibition is of no real consequence in this proceeding as the demurrer to the bill presents the same question raised by the plea.
Stripped of redundancy, the bill alleges that plaintiffs are users and patrons of a toll bridge across New River at Hinton; that the bridge was constructed in 1906 at a cost not exceeding $42,000; that it has been in constant use ever since
but has not been kept in proper repair and that tbe expenditure of $55,000 is requisite now to repair and strengthen it; that it was built for light traffic such as horses, buggies and wagons, and its structure is much too light for modern heavy motor cars; that it was located without reference to the state highway (route No. 3) now leading into Hinton and is not convenient thereto; that a modern and adequate bridge could be constructed at a suitable location at a cost not exceeding $160,000; that New River at Hinton is not a navigable river within the meaning of the statute; yet the defendant, West Virginia Bridge Commission, secretly negotiated the purchase of the bridge from its owner, the defendant, Hinton Toll Bridge Company, in December, 1931, at the price of $325,000, payable in bridge revenue bonds; and that the transaction is fradulent, illegal and void. Cancellation of the purchase is sought.
The allegations of secret purchase at $325,000 of an antiquated and inconvenient bridge costing only $42,000 a quarter of a century ago, and upon which $55,000 must be spent for immediate repairs, when a modern, .adequate and convenient structure could be built for $160,000, make a sufficient charge of constructive fraud. We are not unmindful that it appears from the bill the tolls from the bridge have been averaging some $60,000 annually in recent years. But the imposition of excessive tolls by a public utility does not add to the real worth of its property.
The Act establishing the Bridge Commission (in both title and body) confines the authority of the commission in the purchase of bridges to such only as span “navigable” rivers. Acts 1929, chapter 8, section 3. The allegation that the New River at Hinton is not navigable involves a direct charge of the unlawfulness of the contract, irrespective of fraud.
In view of the statutory provision that bridge bond issues are to be paid from bridge tolls, the allegation that plaintiffs use the bridge and pay tolls shows sufficient interest to sustain their suit.
All of the members of the court are of opinion that the allegations of the bill present a case for equity determination. Also, that the State Bridge Commission cannot obtain constitutional immunity from suit, on the matters herein involved.
on the ground that it is an arm of the state. The Constitution provides: “The State of West Virginia shall never be made defendant in any court of law or equity.” W. Va. Cons., Art. VI, sec. 35. Immunity is peculiarly applicable where financial liability is sought to be fastened on the state through some branch of its government. Such cases present a situation ‘ ‘ where the state, though not named, is the real party against which the relief is asked and judgment will operate.”
Miller
v.
Bd. of Agriculture,
46 W. Va. 192, 32 S. E. 1007, 1008. If a mere ministerial duty is to be performed by a state official, board or commission, mandamus will lie to compel action.
Gordon
v.
State Board of Control,
85 W. Va. 739, 102 S. E. 688. While suits against state boards and commissions for the purpose of establishing liability which would be borne by the state are held to be against the state itself and therefore inhibited by the said constitutional
provision
—Miller v.
Bd. of Agriculture, supra; Supply Co.
v.
Board of Control,
72 W. Va. 524, 78 S. E. 672;
Mahone
v.
State Road Commission,
99 W. Va. 397;
Barber
v.
Spencer State Hospital,
95 W. Va. 463, 121 S. E. 497—such immunity does not apply where the official action in suit is unlawful.
Downs
v.
Lazelle, Judge,
102 W. Va. 663, 136 S. E. 195. Where there is adequate charge of unlawfulness, there is presented a question for judicial determination.
However, a majority of the court is further of opinion that, under the statute, Code 1931, 14-2-4, jurisdiction of the subject matter of this suit may be entertained only in the circuit court of Kanawha County. The statute reads:
“All suits in which it may be necessary and proper to make any of the following public officers a party defendant as representing the State, to-wit: The governor, attorney general, treasurer or auditor; or in which it may be necessary or proper to make any of the following corporations parties defendants, to-wit: The board of public works or any other public corporation composed of officers of government, of the funds and property of which the State is sole owner; and all suits in which it shall be attempted to enjoin or otherwise suspend or affect any judgment or decree on behalf of the State, obtained in the circuit court of the county in which the seat of
government is, or elsewhere, or any execution issued on such judgment or decree, shall be brought and prosecuted in the circuit court in which the seat of government is.”
In our view, inasmuch as the facts determinative of jurisdiction appear on the face of the bill, the trial chancellor should have sustained the demurrer to the bill and have dismissed the same without prejudice to the plaintiffs’ right to prosecute suit in the circuit court of Kanawha County.
We are impressed that the obvious meaning of that statute is that suits against state officials, boards and commissions, with respect to state funds and property and involving official action, shall be prosecuted only in the circuit court of Kanawha County. The manifest purpose of the statute is to prevent the great inconvenience and possible public detriment that would attend if functionaries of the state government should be required to defend official conduct and state’s property interests in sections of the commonwealth remote from the capital.
The essence of the statute is that a suit against certain named officials, the board of public works, ‘ ‘ or any other public corporation composed of officers of government, of the funds and property of which the State is sole owner” shall be prosecuted only in the circuit court of the county of the seat of government.
That bridges bought or erected by the bridge commission are property of the state seems obvious. Though there may be a trust imposed, there is sole ownership by the state for all practical intents and purposes. (This, without reference to the particular bridge in suit.) No refinement of reasoning can submerge the fact that such bridges are acquired by the state to become important parts of its highway system.
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Maxwell, Judge:
The circuit court of Summers County overruled a demurrer to the plaintiffs’ bill, sustained a demurrer to and dismissed defendants’ plea in abatement and attempted to certify to us both bill and plea. ' As the plea was dismissed, we cannot consider its sufficiency on certification; but that inhibition is of no real consequence in this proceeding as the demurrer to the bill presents the same question raised by the plea.
Stripped of redundancy, the bill alleges that plaintiffs are users and patrons of a toll bridge across New River at Hinton; that the bridge was constructed in 1906 at a cost not exceeding $42,000; that it has been in constant use ever since
but has not been kept in proper repair and that tbe expenditure of $55,000 is requisite now to repair and strengthen it; that it was built for light traffic such as horses, buggies and wagons, and its structure is much too light for modern heavy motor cars; that it was located without reference to the state highway (route No. 3) now leading into Hinton and is not convenient thereto; that a modern and adequate bridge could be constructed at a suitable location at a cost not exceeding $160,000; that New River at Hinton is not a navigable river within the meaning of the statute; yet the defendant, West Virginia Bridge Commission, secretly negotiated the purchase of the bridge from its owner, the defendant, Hinton Toll Bridge Company, in December, 1931, at the price of $325,000, payable in bridge revenue bonds; and that the transaction is fradulent, illegal and void. Cancellation of the purchase is sought.
The allegations of secret purchase at $325,000 of an antiquated and inconvenient bridge costing only $42,000 a quarter of a century ago, and upon which $55,000 must be spent for immediate repairs, when a modern, .adequate and convenient structure could be built for $160,000, make a sufficient charge of constructive fraud. We are not unmindful that it appears from the bill the tolls from the bridge have been averaging some $60,000 annually in recent years. But the imposition of excessive tolls by a public utility does not add to the real worth of its property.
The Act establishing the Bridge Commission (in both title and body) confines the authority of the commission in the purchase of bridges to such only as span “navigable” rivers. Acts 1929, chapter 8, section 3. The allegation that the New River at Hinton is not navigable involves a direct charge of the unlawfulness of the contract, irrespective of fraud.
In view of the statutory provision that bridge bond issues are to be paid from bridge tolls, the allegation that plaintiffs use the bridge and pay tolls shows sufficient interest to sustain their suit.
All of the members of the court are of opinion that the allegations of the bill present a case for equity determination. Also, that the State Bridge Commission cannot obtain constitutional immunity from suit, on the matters herein involved.
on the ground that it is an arm of the state. The Constitution provides: “The State of West Virginia shall never be made defendant in any court of law or equity.” W. Va. Cons., Art. VI, sec. 35. Immunity is peculiarly applicable where financial liability is sought to be fastened on the state through some branch of its government. Such cases present a situation ‘ ‘ where the state, though not named, is the real party against which the relief is asked and judgment will operate.”
Miller
v.
Bd. of Agriculture,
46 W. Va. 192, 32 S. E. 1007, 1008. If a mere ministerial duty is to be performed by a state official, board or commission, mandamus will lie to compel action.
Gordon
v.
State Board of Control,
85 W. Va. 739, 102 S. E. 688. While suits against state boards and commissions for the purpose of establishing liability which would be borne by the state are held to be against the state itself and therefore inhibited by the said constitutional
provision
—Miller v.
Bd. of Agriculture, supra; Supply Co.
v.
Board of Control,
72 W. Va. 524, 78 S. E. 672;
Mahone
v.
State Road Commission,
99 W. Va. 397;
Barber
v.
Spencer State Hospital,
95 W. Va. 463, 121 S. E. 497—such immunity does not apply where the official action in suit is unlawful.
Downs
v.
Lazelle, Judge,
102 W. Va. 663, 136 S. E. 195. Where there is adequate charge of unlawfulness, there is presented a question for judicial determination.
However, a majority of the court is further of opinion that, under the statute, Code 1931, 14-2-4, jurisdiction of the subject matter of this suit may be entertained only in the circuit court of Kanawha County. The statute reads:
“All suits in which it may be necessary and proper to make any of the following public officers a party defendant as representing the State, to-wit: The governor, attorney general, treasurer or auditor; or in which it may be necessary or proper to make any of the following corporations parties defendants, to-wit: The board of public works or any other public corporation composed of officers of government, of the funds and property of which the State is sole owner; and all suits in which it shall be attempted to enjoin or otherwise suspend or affect any judgment or decree on behalf of the State, obtained in the circuit court of the county in which the seat of
government is, or elsewhere, or any execution issued on such judgment or decree, shall be brought and prosecuted in the circuit court in which the seat of government is.”
In our view, inasmuch as the facts determinative of jurisdiction appear on the face of the bill, the trial chancellor should have sustained the demurrer to the bill and have dismissed the same without prejudice to the plaintiffs’ right to prosecute suit in the circuit court of Kanawha County.
We are impressed that the obvious meaning of that statute is that suits against state officials, boards and commissions, with respect to state funds and property and involving official action, shall be prosecuted only in the circuit court of Kanawha County. The manifest purpose of the statute is to prevent the great inconvenience and possible public detriment that would attend if functionaries of the state government should be required to defend official conduct and state’s property interests in sections of the commonwealth remote from the capital.
The essence of the statute is that a suit against certain named officials, the board of public works, ‘ ‘ or any other public corporation composed of officers of government, of the funds and property of which the State is sole owner” shall be prosecuted only in the circuit court of the county of the seat of government.
That bridges bought or erected by the bridge commission are property of the state seems obvious. Though there may be a trust imposed, there is sole ownership by the state for all practical intents and purposes. (This, without reference to the particular bridge in suit.) No refinement of reasoning can submerge the fact that such bridges are acquired by the state to become important parts of its highway system. If the actual ownership does not thus come to be in the state, where is it ? The fact that a toll bridge purchased by the commission had been operated as a private enterprise, in our judgment tends to accentuate the thought that after acquisition by the commission there is presented a different situation, namely the operation of a publicly owned bridge for public benefit.
But it is suggested that the act fixing jurisdiction in Kanawha County does not apply to the bridge commission because the state is not the "sole owner” of the funds under
the jurisdiction of the commission. This construction is too narrow and results in defeating the broad purpose of the act. It seems to embody a total disregard of the spirit and purpose of the act, and to ignore the letter, too.
The funds of the bridge commission are derived from bridge tolls. Of course the larger portion of such tolls is applied by the commission to discharge bonds issued by it. True, such bonds are not underwritten by the state
(Bates
v.
State Bridge Com.,
109 W. Va. 186, 153 S. E. 305), but that fact is not important here. For the collection and application of such portion of its revenue as is applied to the discharge of bonds, the commission functions as a sort of trustee, and, let it be'conceded that such portion of its funds is not the sole property of the state. But all funds coming to the commission are not thus applied. A substantial portion is applicable to the de-frayment of the expenses of the commission (Acts 1929, chapter 8, section 2) and to the repair, maintenance and operation of bridges (Acts 1929, chapter 8, section 10). As to this portion of the commission’s revenue, there would seem to be no doubt of the state’s sole ownership. "We are of opinion that this fact, together with what we conceive to be the fact of the state’s sole ownership of bridges erected or purchased by the commission, brings the commission within the meaning and spirit of the law limiting jurisdiction to the county in which the state capítol is located.
Excepting funds passing through the custody of the commission for the benefit of bondholders, we are of opinion that the state stands as the sole owner of all funds and property in the custody of the commission, just the same as of the funds and property in the custody of, for example, the state board of control. Therefore, the very letter of the law seems to be fulfilled. We are impressed that the status of the commission should be thus appraised, that is, with reference to the funds and property in the custody of the commission, belonging to the state, and not appraised solely with’ reference to funds passing under the control of the commission as a sort of transmitter or. temporary depository. Wherefore, it would seem to be unsound to say in effect that the statute fixing jurisdiction in Kanawha County is inapplicable because certain funds pass
through the trusteeship of the commission for the benefit of bondholders.
Neither are we of opinion that allegations of fraud are determinative of jurisdiction. Maybe those allegations are not true. We are impressed that the commission is entitled to have those charges judicially settled in the forum fixed by the statute for the hearing of controversies involving state officials, boards and commissions. If mere allegations of fraud are sufficient to avoid the statute, then the governor or the board of public works may be sued in any county of the state if charges of fraud be involved..
Therefore, entering here such decree as in our opinion the circuit court of Summers County should have entered, we sustain the demurrer to the bill and dismiss the same, without prejudice to the plaintiffs’ rights to prosecute in the circuit court of Kanawha County such proper suit as they may be advised.
Reversed cmd dismissed.