State ex rel. Phoenix Ins. Co. v. Ritchie
In State ex rel. Phoenix Ins. Co. v. Ritchie, 154 W. Va. 306, 311-12, 175 S.E.2d 428, 431 (1970), the Court observed:
Article III, Section 9, of the Constitution of this State provides that "private property shall not be taken or damaged for public use, without just compensation . . . ." However, Article VI, Section 35, of the Constitution provides that "the State of West Virginia shall never be made defendant in any court of law or equity . . . ."
These constitutional provisions appear to be irreconcilable, but this Court has held that if the State Road Commissioner abuses his discretion in failing to institute an action of eminent domain against a property owner who alleges that his property has been taken or damaged as a result of the construction of a public highway, such commissioner will by this Court be directed in a mandamus proceeding to institute such action to determine whether property has been taken or damaged and, if so, the amount of damage the property owner has suffered.