People v. Westchester County National Bank ( 1921 )

"The credit of the state shall not in any manner be given or loaned to or in aid of any individual, association or corporation" (Constitution of New York, art. VII, sec. 1). The purpose of the prohibition is revealed in its history (2 Lincoln, Constitutional History of New York, p. 87). The purpose was to put an end to the use of the credit of the state in fostering the growth of private enterprise and business. That is the mischief which gives understanding of the ermedy. I do not mean that the prohibition is to be limited to the particular evil that inspired it. It is limited, however, to evils of a kindred nature. The credit of the state may not be pledged in aid of an individual who has no claim in justice or morals to relief or compensation. It may be pledged in recognition of an honorable obligation to effect a proportionate and equitable distribution of the burdens of public service (Munro v. State of N.Y., 223 N.Y. 208, 216; Matterof Borup, 182 N.Y. 222; Trustees of Exempt Firemen's Benev.Fund v. Roome, 93 N.Y. 313, 326). Payments so made or promised are in one sense gifts, for they are the voluntary assumption of liabilities not theretofore imposed by law. They are not gifts, however, in the sense of the prohibition under discussion, for their animating purpose is not benefaction, but requital.

We are told that requital, if due at all, is due, not from the state, but from the nation, which summoned the host to service. I find myself unable to define by bounds so artificial the claims of equity and honor. The service that preserved the life and safety of the nation preserved at the same time the life and safety of the states (Opinion of the Justices, 190 Mass. 611,615; Gilbert v. Minnesota, 254 U.S. 325, 328; Gustafson v.Rhinow, 144 Minn. 415; 175 N.W. Rep. 903; State ex rel.Atwood v. Johnson, 170 Wis. 251; 175 N.W. Rep. 589). If something is still due beyond the letter of the bond (Opinion ofthe Justices, 175 Mass. 599), state, as well as nation, will not rest till justice has been done. Neither can silence conscience by referring the claimant to the other. I am not convinced by the argument that reparation, if due from our legislature to residents of New York, is due in equal measure to residents of Maine and California. Each state may fairly be left to take care of its own. Most have already done so. One finds it hard to believe that they have, all of them, been meddling in matters not of their concern. It is the state rather than the nation — possessing as the state does the residuary powers of government — which in our federal system is to be viewed as parens patriæ. The parent does not listen unmoved to the necessities of her sons who have fought in her defense.

I pass, then, to the question whether the legislature might reasonably hold that men who in greatly serving had also greatly suffered, gained thereby a claim to reparation for their suffering. I mean, of course, a claim in justice or equity or morals or honor. Great achievement and great sacrifice have been meagrely rewarded. The perils of battle, the hardships of camp and trench, may be poorly paid at any price; few will assert that they are recompensed at the rate of a dollar a day. Even for those who did not reach the firing line, there were the pangs of separation from home and kindred, the anxieties and the strain of a new and hazardous adventure. Legislature and people, beneficiaries of this devotion, have heard the call of a moral duty to mitigate the disparity between suffering and requital. But the catalogue of suffering does not end with pain of mind and body. There was money loss as well, or so at least a legislature, looking at average conditions, might not unreasonably believe. Its judgment in such matters must prevail unless wholly arbitrary and baseless (Matter of Stubbe v. Adamson, 220 N.Y. 459,469). Labor in the market was paid with no such modest stipend as these men received for labor in submarine and trench. Even with food and housing added to the stipend, we cannot say that there is mere caprice in a finding of the lawmakers that compensation was inadequate. Often the stipend was sent home for the benefit of relatives who, if not wholly dependent on the absent one, had need of something more if they were to be maintained in his absence according to the standards of the past. Lost also were indefinite opportunities for profit and advancement. While soldiers and sailors risked their lives abroad, wages abnormally high were the reward of those who stayed behind. The losses did not end with peace. Men who had left their callings overnight, breaking up the old relations of business and employment, found on their return that business must be rebuilt, and employment sought anew. Then, too, the shock and strain provoked a period of reaction, in which idleness was inevitable. New losses must be suffered till work could be resumed, and life adjusted to the ways of peace. It is significant, I think, that the statute limits the bonus to soldiers and sailors of the lower grades, i.e., to those whose pay was smallest, and who are most in need of aid. Of these, some may bear a loss more easily than others, but for many, if not for all, there will be loss in some degree. Legislation, in such matters, must take note of average conditions (Tenement House Dept. N.Y. City v. McDevitt,215 N.Y. 160, 167). The problem is too complex, the difficulty of proof too great, for investigation of the individual case, and adjustment of reward accordingly. We take judicial notice of these things (People ex rel. Durham Realty Co. v. La Fetra,230 N.Y. 429; People v. Schweinler Press, 214 N.Y. 395;Matter of Stubbe v. Adamson, 220 N.Y. 459). We take judicial notice, too, that since the beginnings of our history, a sense of the moral obligation to give aid to the returning soldier has been felt and acted on by government (U.S. v. Hall,98 U.S. 343, 346). The call of these and kindred equities has been heard and answered in the past. Are the equities so feeble, is their summons so plainly an illusion, that we may answer them no more?

We have held that the legislature is still free, with all the restrictions imposed by the Constitution upon gifts of money or of credit, to assume liability in law when liability may be found in equity or honor (Lehigh Valley R.R. Co. v. Canal Board,204 N.Y. 471). Equity and honor are the same as in olden days. The Constitution does not define them, nor seek to circumscribe their content. An employee in a state hospital was injured by the assault of a patient confided to his care (Munro v. State ofN Y, 223 N.Y. 208). A statute after the event declared that upon a finding by the Court of Claims that the injuries "were so sustained," damages therefor should "constitute a legal and valid claim against the state." We held that the right to reparation was so rooted in equity and fairness that the legislature was free to recognize it by assuming liability. We did not put our decision, as the legislature did not base the statute, upon any theory of negligence in the conduct of the enterprise. The claimant had been injured by an "unforeseen accident" (p. 216) as the result of service to the state, and that was thought enough, though the state was not at fault. If a hospital attendant, serving in times of peace, has a moral claim to be indemnified against the risks of an employment which he was free to accept or to reject, the soldier injured in a war has at least an equal equity. I cannot doubt that under Munro v. State of N.Y. (supra), a bonus or pension to the maimed or incapacitated would be the recognition and fulfillment of a moral obligation, and not a largess or donation, the dole of charity or benevolence. The conscience of the state would listen with little patience to the argument that wounded and disabled had no claim upon its bounty because wounds and disabilities were suffered in the service of the nation. This the prevailing opinion apparently concedes, though I cannot reconcile the concession with the logic of its theorem. Relief in such circumstances would not rest upon the narrow ground that the injured or disabled might be in danger of becoming paupers. It would be due, if so the legislature should read the promptings of morality, though all were self-supporting. Aid to men thus stricken is not benevolence to the poor. It is an attempt, however feeble, with sacrifice outweighing payment, to set the balance true.

If the account may be recast by adjusting recompense to suffering when the disparity disturbs the conscience, it is for the legislature to declare when conscience is disturbed. Not this form of sacrifice or that to the exclusion of another, but merely sacrifice unrequited, is the basis of its power. I cannot say that there is an equity in unrequited wounds, and none in other suffering of body or of mind. The grip is, indeed, weaker, and yet it can be felt. I cannot say, if there is an equity in suffering of body or of mind, that there is none in economic suffering, the loss of money or money's worth. Few would doubt this if the soldiers had received no pay at all. Pay so inadequate as to be almost nominal does not greatly change the balance. A has saved the life of B, or of B's child, and in so doing has suffered loss. Many a man in B's case would feel that the loss should be repaired. We deal here with a like service, not of one man, but of an army. "That which would have been merely a charity or a gift is not such by reason of the service given, the consideration rendered, the honorable obligation incurred" (Trustees Exempt Firemen's Benev. Fund v. Roome,93 N.Y. 326). We err when we envisage the soldier's relation to the government in the category of contract. Contract in the true sense there is none, but service conscripted by the sovereign, and, even though not conscripted, rewarded at its will. That is why payment of the wage does not always satisfy the conscience that there has been payment of the debt. The Constitution does not silence these mutterings of spiritual disquiet when sacrifice unevenly distributed oppresses those who profit by it with the sense of a burden undischarged. Our ruling in Matter of Borup (182 N.Y. 222) was founded in that truth. We held that it was in the power of the legislature by a retroactive statute to assume liability to a landowner injured by a change of grade, though at the time of the change the impairment of value was damage without wrong. Under the law before the statute, the loss was one of the incidents of life in organized society. It was part of the price which the citizen must pay for the benefits of government. We held that the legislature might readjust the incidence of the burden, might establish a more equitable distribution between the individual and the public, through the voluntary acceptance of liability for a loss which was without a remedy when suffered. I cannot yield to an appraisal of values that would find the basis of an equity there, and a mere cobweb, an illusion, here. In neither case is there legal liability unless the legislature assumes one. In each there is an unequal pressure of the burdens and the power of government upon one man and upon others. The readjustment of these burdens along the lines of equality and equity is a legitimate function of the state as long as justice to its citizens remains its chief concern (Oswego Syracuse R.R. Co. v. State of N.Y.,226 N.Y. 351).

I am led, therefore, to the conclusion that the payment of this bonus, as money earned, but not received, is not wholly without support in something which the legislature might estimate as a moral or honorary obligation. If there is any reasonable basis for such an estimate, for such a conception of equity and justice, the courts must yield to the judgment of the legislature that it is worthy of recognition. The question is then one that the legislature must determine for itself (U.S. v. RealtyCo., 163 U.S. 427, 444; Oswego Syracuse R.R. Co. v. Stateof N.Y. supra, at p. 357). "Its decision * * * can rarely, if ever, be the subject of review by the judicial branch of the government" (U.S. v. Realty Co., supra; cf. Opinion of theJustices, 175 Mass. 599, at p. 602). Some may think the service so far beyond requital that the attempt should be surrendered for mere futility. Others may think that high and unselfish sacrifice is cheapened when repaid in money. Others again may think that for the sake of the economic or financial stability of the commonwealth, losses already suffered should be left to lie where they have fallen. These are questions of political or legislative expediency. I make no attempt to answer them. I am not to substitute my judgment for the judgment of the lawmakers. The act, moreover, was either valid or invalid at the date of its enactment. Its validity cannot turn upon the hope or expectation that aid, at some indefinite period hereafter, may be granted by the nation. Impressive is the list of like statutes to be found in other states (California, Connecticut, Maine, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Jersey, New Hampshire, North Dakota, Oregon, Rhode Island, South Dakota, Vermont, Washington, Wisconsin and Wyoming) as well as in foreign countries (Italy, France, Great Britain, Canada and Australia). Impressive too is the vote in favor of our own statute, when submitted to the electors. I cannot bring myself to believe that all these concurring acts were unmoved by any conception of honor or of duty, or that the conception, if held, had no basis in reality. If there be the possibility of conflicting motives, those that vitiate are to be rejected, and those that validate presumed.

We are warned that the recognition of this equity may be followed by the recognition of others still weaker and more rarefied. All sorts of hypothetical situations are suggested in the briefs of counsel, and held before us in terrorem. I am not swerved by these forebodings. I do not know the equity that is incapable of being reduced to an absurdity when extended by some process of analogy to varying conditions. Here, as often in the law, the difference between right and wrong is a difference of degree. Most of these imaginary problems will never in fact arise. They assume a legislature and an electorate without responsibility or conscience. The public credit is not pledged in these cases by the legislature alone. The pledge is invalid unless ratified by the vote of the electors (Const. art. VII, sec. 4). I find little opportunity here for the charlatan or the cheat. Something more than a bizarre and shadowy pretense, some service stirring the deep currents of public gratitude and loyalty, will be needed before these protecting dykes and dams are overcome and flooded. But the existence of a power is not refuted by demonstrating the opportunity for its abuse. The abuse must be dealt with when it arises (Opinion of the Justices, 175 Mass. 599, at p. 602). We may not nullify a statute from mere mistrust of the capacity of legislature and people to use their power wisely. I am persuaded that hundreds of thousands of earnest men and women believe that justice and equity demand the payment of this bonus. They may be wrong. I do not know. It is enough that I cannot characterize their belief as a vagary of the mind, an idle dream or phantasy, an irrational pretense.

None of the previous cases in this state controls the case before us. Bush v. Board of Supervisors Orange Co. (159 N.Y. 212) is not decisive. The claim of drafted men or of those who had hired a substitute that they should receive, many years after the civil war, a bounty equal to that paid as a reward for volunteering, had small support in morals (cf. Opinion of theJustices, 190 Mass. 611; Opinion of the Justices, 211 id. 608). That decision, moreover, could stand on the single ground that the debt, contracted by a county, was not one for county purposes, and that there was surely no moral obligation resting on the county, even though upon some strained theory we might ascribe one to the state. The Mahon case (Matter of Mahon v.Bd. of Education N.Y. City, 171 N.Y. 263) does not control, for the teachers were servants of the municipality, who had made a voluntary contract, and the Constitution prohibits the grant of extra compensation to public officers, servants, agents or contractors of the state, or of its civil subdivisions (Art. III, sec. 28). That provision is inapplicable here, for it postulates a contract to which the state or the municipality was a party, and not submission to a mandate, issued by another agency of government, where volition is excluded. What was said in the other cases, so far as it is applicable here, wasobiter. We may even assume in accordance with the rather sweeping dictum of CULLEN, Ch. J., that there is no longer room for the play of mere gratitude and charity (Lehigh Valley R.R.Co. v. Canal Bd., 204 N.Y. 471). The dictum is coupled with the concession that room there still is for the recognition of the claims of equity and justice (pp. 475, 476). Trustees ofExempt Firemen's Benev. Fund v. Roome (93 N.Y. 313) andMunro v. State of N.Y. (223 N.Y. 208) show how plastic and comprehensive is the content of those terms. There is a difference, not to be ignored, between profit and indemnity. If the soldiers had not suffered, and the sole purpose of the bonus were to reward them above others, the reward might be said to have no basis except gratitude, a free offering of thanksgiving, untouched by the admixture of any sentiment of justice. Their service has been coupled with sacrifice, and from the union of the two there is born the equity that prompts to reparation.

The judgment should be affirmed with costs.