215 P. 477 | Wyo. | 1923
This is an action in mandamus, brought in this court against the State Auditor, and arises out of an act of the legislature, Chapter 110, Session Laws of 1923, providing as follows:
“That the sum of three thousand dollars or so much thereof as may be necessary, is hereby appropriated from any funds in the State Treasury not otherwise appropriated for the relief of Ida Geneva McPherren, for the loss of her husband, W. S. McPherren, who was killed in line of duty in 1921, as undersheriff by parties unknown. ’ ’
The petition alleges among other things that the relator herein is, and for many years has been, a citizen and resident of the city of Sheridan, in this state; that on October 7, 1921, relator was the wife of William S. McPherren who on said date was the duly appointed and acting undersher-iff of Sheridan County, Wyoming; that on said date, acting in the course of his duty and under the instructions and orders of his superior, said W. S. McPherren participated in a raid upon and attempted the arrest of alleged and supposed violators of the prohibitory liquor act, and in so doing was shot and killed by a bulletl wound; that relator was left destitute and wholly dependent upon the charity and assistance of relatives and friends for the support of herself and two small children, and ever since the death of her husband has been and is now poor. That the legislature at its session in 1923 passed Chapter 110 above set forth for the relief of relator; that relator thereafter presented her claim and demanded of the respondent to issue to her his warrant upon the State Treasurer for the sum of $3000.00, which he has refused to do, and relator asks that a writ of mandamus issue to compel him to do so. Respondent filed a demurrer to the petition on the ground' that the petition
1. It is claimed that to hold the act in question valid would be, in effect, to increase the salary of an officer in violation of our constitution. Section 30 of Article 3 of the constitution provides:
“No bill shall be passed giving any extra compensation to any public officer, servant or employe, agent or contract- or, after services are rendered or contract made. ’ ’
Section 32 of the same article provides:
“Except as otherwise provided in this constitution, no law shall extend the term of any public officer or increase or diminish his salary or emolument after his election or appointment. ’ ’
In the case of Nichols v. State, 11 Tex. Civ. App. 327, 32 S. W. 452, the court construed a section of the Texas constitution similar to Section 30, supra, and the court said:
“That] provision evidently means that when compensation is agreed upon or fixed for certain services, no extra compensation will be allowed for the same service. It was not intended to embrace claims that arose out of extra service. If extra service was rendered by virtue of proper authority, compensation could be made therefor. ’ ’
The principle underlying this decision is, that no appropriation may be made as extra compensation after the performance of a duty to which a person was previously legally obligated, but unless such legal obligation in fact existed, extra compensation is not forbidden under the constitutional provision discussed in that case. Whatever legal duties are connected with an office must, no doubt, be performed for the emolument previously fixed. We need not define the precise limits of the field of legal duties. Prob
2. It is contended that the appropriation in question is a donation, and, therefore, contrary to the provisions of Section 6 of Article 16 of the Constitution, reading in part as follows:
“Neither the state nor any county * * * shall # * * make donations to or in aid of any individual * * * except for necessary support of the poor. ’ ’
And contrary to Sec. 36 of Article 3, reading in part as follows:
“No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state.”
“Under the provisions of the Constitution (Art. 1, Sec. 8) Congress has power to lay and collect taxes, etc. ‘to pay the debts of the United States.’ Having power to raise money for that purpose, it of course follows that it has power when the money is raised to appropriate it to the same object. What are the debts of the United States within the meaning of this constitutional provision! It is conceded, and indeed it cannot be questioned that the debts are not limited to those which are evidenced by some written obligation or to those which are otherwise of a strictly legal character. The term ‘debts’ includes those debts or claims which rest upon a merely equitable or honorable obligation, and which would not be recoverable in a court of law if existing against an individual. The nation, speaking broadly, owes a ‘debt’ to an individual when his claim grows out of general principles of right and justice; when, in other words, it is based upon considerations of a moral or merely honorary nature, such as are binding on the conscience or the honor of an individual, although the debt could obtain no recognition in a court of law. ’ ’
The principle here mentioned had been laid down by courts for many years prior to the adoption of our Constitution. Town of Guilford v. Chenango County, 13 N. Y. 143, for instance, one of the leading and oft-quoted eases on the subject, was decided in 1855; Menges v. Wertman, 1 Pa. St. 218, in 1845; Lycoming v. Union, 13 Pa. St. 166, 53 Am. Dec. 575, in 1850; New Orleans v. Clark, 95 U. S. 644, 24 L. Ed. 521, in 1877. We think that our Constitution was adopted, and must be interpreted, in the light of this principle, which, except where contrary to a specific
We have already seen that the appropriation in question cannot be considered in the light of an additional salary. Unless, therefore, it constituted a gift, the legislature had the right to make it. ■ It may not be always easy to determine when an obligation is on the one hand a moral one, which may be recognized, or when, on the other hand, it is a gift, or donation prohibited by the constitutional provisions above quoted. In attempting a definition of a moral claim, the Supreme Court of Illinois in the recent case of Hagler v. Small, 307 Ill. 460, 138 N. E. 849, said:
“It is of the essence of a moral obligation that it arise out of a state of facts appealing to a universal sense of justice and fairness, though upon such facts no legal claim can be based. The state may be said to owe a moral debt to an individual when his claim grows out of the principles of right and justice. When it is of such a nature as to be binding on the conscience or honor of an individual, it may be said to be based upon considerations of a moral or honorary nature of which the state may take cognizance. Payments to individuals in the nature of a gratuity yet having some features of a moral obligation to support them have been made by Congress since the foundation of the government, ’ ’
In the case of City of Lowell v. Oliver, 8 Allen 247, 257, quoted from with approval by the court in Gustafson v. Rhinow, 144 Minn. 415, 175 N. W. 903, it was said that there is no distinction between the right to raise money for a specific object yet to be accomplished and a right to raise
‘ ‘ If the object of the appropriation is a legitimate one, it is quite immaterial whether the money has been actually expended and the tax is laid to pay a debt previously incurred or for the reimbursement of sums advanced by third persons for a public object or whether it is to anticipate expenditures which the future requirements of the public service may render expedient or necessary. We can see no valid distinction in principle between a right to raise money for a specific object yet to be accomplished, and a right to raise it to defray the expense of the same object after it has been attained. ’ ’
If this rule should hold universally true, it would furnish a reasonable standard of what is a moral obligation, for we should then but need to determine as to whether or not the legislature could have made an appropriation for the specific object before its accomplishment. The rule would not, however, hold true in this state at least in those classes of cases clearly involving the increase of salaries of officers. Still, as to whether or not the legislature could have made an appropriation in the first place, is at least one of the criteria by which we can judge whether or not an obligation is a moral one, for it is clear that no claims could be recognized or paid if an appropriation for such purpose could not have been made in the first place. We may, therefore, for a moment consider that viewpoint of the subject. It is clear that an appropriation like that involved in this case is analogous to payments made under workmen’s compensation statutes. Laws of that kind are of comparatively recent origin but the idea is not at all new. As early as July 16, 1798 (Chap. 77, 1 Statutes at Large 606,) Congress provided for a seamen’s fund, by a tax upon the seamen at the rate of forty cents per month, to be expended under the direction of the Secretary of the Treasury for the care and relief of the sick and disabled seamen.
“That the principle thus sought to be put into effect is economically, sociologically, and morally sound, we think must be conceded. It is so treated by the learned counsel*34 who baye filed briefs in support of tbe auditor’s contentions; it is so conceded by all tbe modern statesmen, jurists, and economic writers who have voiced their opinions on the subject and the principle has been enacted into law by nearly all of the civilized countries of Europe, by Australia, by New Zealand, by the Transvaal, by the principal provinces of Canada, and in a partial form, at least, by one or more of the South American republics. Indeed so universal is the conception that to assert to the contrary is to turn the face against the enlightened opinion of mankind. ’ ’
Wyoming adopted a Workman’s Compensation Law in 1915. That was done, it is true, after amending the Constitution (Sec. 4, Article 10). But that amendment was adopted pursuant to1 the general recognition that natural justice demanded legislation of that kind. Employees, engaged in certain extra hazardous work for the state, or any county or municipality, are protected under that law now, but a number of employes, including peace officers, do not come within its purview. It is clear, we think, that if the legislature should deem it advisable to extend the provisions of the act in question to those not now protected thereby, it would do so, at least partially, pursuant to the general recognition of justice toward and moral obligation owing to them. If that is true, and we think it is, then it goes far in showing, that an appropriation made to or on behalf of employes after death or injury is also in recognition of that same duty and obligation. The courts in fact that have had occasion to pass upon the question have generally so considered it. In Munro v. State, 223 N. Y. 208, 119 N. E. 445, it appears that the plaintiff was injured during the course of his employment by a patient in a state hospital, and the legislature authorized the allowance of a claim therefor. The court said in part:
“But the equity or justice of a claim which the state may recognize is not limited by any law that I can find to personal injuries arising out of negligence as defined in the*35 law at any given time. Negligence as a basis for liability, especially as applied to the relationship of master and servant, has been constantly changing and expanding under statutory enactments. Thus we have our employer ’s liability statutes, both state and federal, and at last the Workmen’s Compensation Act making personal injury a risk of the business irrespective of negligence. Can it be that the legislature may place liability upon the employer irrespective of negligence, and that the state itself cannot recognize as a just and equitable obligation a personal injury received by one of its employes unless some legal principle the application of which has been abolished would have created liability in an individual or corporation? When a man gives his services or his property to the state under such circumstances that no liability would be created to pay therefor, even if the state were an individual or private corporation, the legislature may allow such a claim in good morals and fair dealings. (See cases cited above.) Why should there not be a like moral obligation to make some recompense to the man who in his work for the state by an unforseen accident has given his life or limb ? The moral obligation may be as urgent in the one instance as the other.”
In the case of Babcock v. State, 190 App. Div. 147, 180 N. Y. S. 3; affirmed in 231 N. Y. 560, 132 N. E. 888, a highway engineer in the employ of the state made a survey on a mountain, and in order to reach a necessary point, fastened a rope to a tree and proceeded to lower himself thereby. The rope broke and he rolled down the mountain, receiving serious injuries. The legislature authorized the allowance of a claim therefor. The Supreme Court, relying on Munro v. State, supra, among other eases, said in part:
‘ ‘ The legislature, although it may not make a gift of the moneys of the state, nor itself audit or allow a private claim against the state, may yet recognize and legalize pri*36 vate claims, which though unenforceable through the application of legal principles, are yet founded upon equity and justice, and it may empower the court of claims to audit and allow them. * # * If injuries, resulting from the hazards of caring for the insane furnished adequate grounds for legislative recognition of a claim against the state, then certainly the injuries of claimant, arising from the grave peril of descending a precipitous cliff upon a rope, under orders of a department of the state, furnished equally valid grounds for the passage of an act recognizing a claim of damages therefor.”
In the case of Mackey v. Reeves, 44 S. D. 153, 182 N. W. 700, it appears that the legislature by a special act appropriated money for plaintiff for injuries received by him while in the discharge of his duties as a militiaman of the state, the injury being received through an accidental and premature discharge of an artillery piece. The court upheld the appropriation as public and for a beneficial purpose, and not a gift within the meaning of the constitution prohibiting donations. In the case of Fairfield v. Huntington, 23 Ariz. 528, 205 Pac. 814, 22 A. L. R. 1438, it appears that plaintiff, while in the employ of the state engineer of Arizona, accidentally received an injury arising out of and in the course of his employment. The legislature of the state, by a special act, appropriated money to compensate him. Substantially the same contentions made in the case at bar were made in that case, under constitutional provisions similar to those in this state. The court held that the appropriation was not a gift, but the payment of a moral obligation, and after discussing the question as to whether a moral obligation existed, said in part:
‘ ‘ Indeed it would be difficult to imagine a case calling more strongly for the discharge of this duty than that of an employee of the state seriously injured or killed in its service without fault on his part, but for whose injury or death the state, by reason of its legislature’s omission to enact*37 a law to that effect, cannot be compelled to make any recompense whatever. Under the same circumstances an individual or corporation would be legally liable. Why then,should the discharge by the state of such an obligation be regarded as a donation or as anything other than the payment of ah honest debt, a thing that the state, as well as every good citizen should do 1 ”
See also Woodall v. Darst, 71 W. Va. 350, 77 S. E. 264, 80 S. E. 367, 44 L. R. A. N. S. 83, Ann. Cas. 1914 B. 1278,
Another, but similar line of cases, too, sustain the legislative act in question here. These eases discussed the laws providing for a bonus for soldiers of the world war. The court of appeals of New York, in People v. Westchester National Bank, 231 N. Y. 465, 132 N. E. 241, 15 A. L. R. 1344, while adhering to the rule that the legislature may recognize a moral obligation, held, by a divided court, such a bonus to be a gift within the prohibition of the constitution of that state. But this holding was based on the theory that the soldiers were employed by the nation, and not by the state. Hence that case is not an authority against the validity of the legislative act in question here. All the other courts having occasion to pass upon a bonus law, have upheld it. State v. Clausen, 113 Wash. 570, 194 Pac. 793, 13 A. L. R. 580; Hagler v. Small, 307 Ill. 460, 138 N. E. 849; State v. Handlin, 38 S. D. 550, 162 N. W. 379; State v. Johnston, 170 Wis. 251, 176 N. W. 224; State v. Johnson, 170 Wis. 218, 175 N. W. 589; 7 A. L. R. 1617; Gustafson v. Rhinow, 144 Minn. 415, 175 N. W. 903. A similar law was upheld in Opinion of Justices, 211 Mass. 608, 98 N. E. 338. In the Washington and Illinois cases, the court specifically held that the payment of a bonus was in discharge of a moral obligation. In the South Dakota case, the bonus was held to be for a public purpose and that it was not to be considered as a gift. We see no distinction between the fundamental principle underlying these cases and that underlying the case at bar. The soldier who goes
There is only one case condemning an appropriation such as was made in the case at bar. In Bourn v. Hart, 93 Cal. 321, 28 Pac. 951, 27 A. S. R. 203, 15 L. R. A. 431, a servant of the state had been injured and an appropriation made by the legislature was held to be a gift, prohibited by the constitution. Chief Justice Beatty dissented, saying:
“I dissent. In my opinion, the word ‘gift’ was not used in Section 31, Article 4, of the constitution in a sense broad enough to include compensation to a servant of the state for loss of life or limb in the discharge of his duties. Nor do I think such compensation is to be regarded as extra compensation for services, within the prohibition of the succeeding section of the same article. ’ ’
It appears from Veterans Welfare Board v. Riley (Calf.) 206 Pac. 631, that the doctrine that moral obligations may be recognized, is not, in so far as these may grow out of service to the state, in force in California. The Bourn case was decided in 1892, before the validity of workmen’s compensation acts had come to be generally recognized, and we
In view of the authorities we see but one conclusion. Law is a progressive science. It is the beauty and boast of the common law, that it is able to adapt itself to the changing conditions and requirements of society. Our constitution was adopted in the light of that fact. It does not define a gift or donation; it does not by any express language prohibit the recognition of a moral claim or obligation, and in the light of the broader understanding of natural and social duties and of equity and justice in the larger sense of those terms, we think that the legislature was not unwarranted in recognizing that the death of McPherren, sustained while in the performance of his duty, gave rise to a moral obligation which it had the right to recognize by an appropriation of money.
3. It is further contended that the legislative act in question is a special law in violation of Section 27 of Article 3 of the constitution. That section, after enumerating certain definite subjects, not in question here, on which no special laws shall be enacted, provides that “in all other cases where a general law can be made applicable no special law shall be enacted.” It is the contention of the counsel for respondent that a general law could have readily been enacted in the case at bar. The courts of many of the
In the case of Mount v. The State, supra, the court said:
“The granting of relief to individual claimants, is not within the provision of our constitution, which prohibits the enactment of special laws. Each claim stands on its own merits; a general law could not be made applicable, and when general laws are not applicable special ones may be enacted. * * * A law requiring reimbursement to an officer * * * is an act granting special relief in a particular case.”*41 “We think the subject matter of the legislation in question is such that a general law cannot be made applicable. The act in question is what in legislative parlance is denominated an appropriation act. Such acts are in their very nature local and special, as distinguished from general law. There may be a question whether under the constitution there is any legislative power to make the appropriation, but it seems to us there can be no question, if an appropriation is authorized, or rather not forbidden, by the constitution, it must of necessity be made by a special act of the legislature. ’ ’
"Again it is argued that it confers a special benefit or immunity upon, a particular individual, and is therefore invalid. This proposition is fully answered in State v. Squires, 26 Iowa 344. It is not to be assumed that there were other county treasurers in the same situation as McGrew. A general law could not, therefore, be made applicable, for the situation disclosed a novel and most unusual state of facts. The act in question is not bad because special in character. A law making an appropriation to a private individual or corporation, is not and cannot be made general, and yet it is good. Merchant’s Co. v. Brown, 64 Iowa, 275, 20 N. W. 434.”
There is at least one fundamental and controlling reason why the act in question should not be condemned as unconstitutional, though special. The legislature has the right, as we have stated, to recognize a moral claim. It is not, however, compelled to do so. And if it acknowledges any one particular claim as just and equitable, we do not think that the court has the right to say that it must also recognize all other claims of a similar nature, and do so by passing a general law. The legislature might deem one claim as just and equitable because of the particular, peculiar incidents connected therewith, while another, similar claim, but
‘! It would be difficult to enact a law applying to the various situations, under which the state’s obligation might arise, and as said by the Supreme Court of West Virginia in Woodall v. Darst, 71 W. Va. 350, 44 L. R. A. N. S. 83, 77 S. E. 264; Ann. Cas. 1914 B 1278, above: ‘There are many matters that might very justly and properly be considered by the legislature in determining the merits of claims of the same general nature as relator’s which could not well be embodied in a general law. For instance, the needs of the claimants and those dependent upon them might very properly influence the legislature in determining the amount it would apply to discharge an obligation purely moral. ’ ’
For the court to hold that a general law must be passed, if any, under which all claims of a general class of this kind could be presented and paid would, we think, unduly interfere with the legislative discretion to determine what is and what is not, in its judgment, a moral, just and equitable obligation which demands payment at its hands. The legislature might hesitate, and refuse, to pass a general law of that kind, and to that extent change the general principle of non-liability of the state. It may, however, be willing to give compensation in special cases, which demand special relief, and we are not warranted in holding that it cannot be permitted to do so in a case presenting facts like those in the case at bar.
The demurrer filed herein must accordingly be overruled, and an order to that effect will be entered.
