The opinion
KeNNa, Judge,
concurring:
Upon the former hearing of this case in this Court we did not consider the effect of a finding by the Legislature
*662
that the State was morally obligated to pay a part or all of the claim because at that time and upon that record there was no legislative finding on that question before the Court.
Adkins, Admr.
v.
Sims, Auditor,
127 W. Va. 786 , 34 S. E. 2d 585 . Therefore, the principle of the law of the case plainly does not apply. The decision in the
Adkins
case in determining the question of whether the claim was a moral obligation of the State, turned upon the effect to be given, first, to a finding of the State Court of Claims and, second, to an actual appropriation in the amount of that finding which followed with no legislative declaration. We held that neither determined that question.
I am not in accord with the reasoning of the majority, particularly the fear expressed that a different decision, if followed, would result in compensating every one injured upon a State highway not maintained in “an absolutely safe condition.” True, the Legislature would be given quite a broad discretion in determining when the State is morally obligated. That is where the discretion should rest. If exercised, it should be held conclusive unless shown to be arbitrary, capricious, or improperly influenced. Those views, however, 1 attempted to express in my dissent in the case of
State
v.
Sims,
130 W. Va. 430 , 43 S. E. 2d 805 , called the
Casbman
case, and so I am not dissenting here.