State Ex Rel. Cashman v. Sims

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Kenna, Judge,

dissenting:

With the full emphasis that is permitted by proper deference to the opinion of my associates I desire to disagree with both the reasoning and conclusion of the majority opinion.

It is quite clear to my mind that in first resting a moral obligation of the State upon: (1) Breach of an existing statute on the part of the State, or injury resulting to an individual by reason of the performance of a duty thereby imposed; or (2) what would be civil liability but for the State’s immunity, and following those conclusions by holding that cases where a condition- is involved which would give rise to an obligation predicated upon simple right and justice such as a fair and just man should assume in his own affairs even though not compelled by law to do so, as an exception to the general rule first pronounced, is approaching backwards the solution of the problem involved. The stated exception

is

the general rule in jurisdictions which approve appropriations to satisfy “moral obligations” of the sovereign, according to the clear weight of authority. See 42 Am. Jur., page 763,

et seq.

The opinion of the Court recognizes that a moral obligation, as distinguished from a legal obligation is, “* * * a condition which would give rise to an obligation predicated upon simple right and justice such as a fair and just man should assume in his own affairs even though not compelled by law to do so, * * In its conclusion.of fact concerning Cashman’s claim, the Court’s opinion says this: “* * * With full knowledge of the obvious risks which attended his work he voluntarily elected to continue his employment. For this he is to be commended and admired. By so doing he rendered, at a risk which became a reality, a noble service to afflicted humanity. * * Would not “a fair and just man” discharge a debt of gratitude nobly created? The State of West Virginia was the beneficiary of that service. According to the record, Cashman went to Hopemont in robust health. He went at a time that many members of the medical profession were serving their country in a desperate war, which made doctors in civilian

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service few and far between. He went knowing that tuberculosis is' infectious and highly dangerous. He knew that the danger was increased by the fact that the hospital at Hopemont was understaffed and the work of both doctors and nurses was more than doubled. It must be assumed that he went with the realization of the legal non-liability of the State of West Virginia if he should contract the disease. I do not believe that it requires “a fair and just man” to look upon the payment of $2,000.00 by the State as a discharge of a moral obligation” to a man who became bedridden for between eighteen months and two years as a result of performing “a noble service to afflicted humanity” in the name of the State of West Virginia.

To discuss Cashman’s so-called assumption of risk under these circumstances' in my opinion is rather case hárd-ened as well as erroneous. Assumption of risk is in the nature of a plea of confession and avoidance. It is brought into play only where liability of the defendant otherwise exists. See 38 Am. Jur. 845 . Therefore, to speak of assumption of risk is' to admit the fault of the State, and to take the position that the claimant knew it and that his contract of employment and compensation were based upon working under known dangerous conditions and therefore that he is adequately compensated for the result which he is presumed to have anticipated. The majority opinion denies negligence on the part of the State which would justify recovery between private litigants, but nevertheless deals with Cashman’s assumption of risk.

I do not agree with the statement in the majority opinion that in order to justify an appropriation the moral obligation of the State when reviewed by the courts must affirmatively appear and that it must- also have been found by the Legislature to exist. Nothing will be found in the opinion of the Court in

Adkins

v.

Sims,

127 W. Va. 786 , 34 S. E. 2d 585 , to sustain that proposition. To the contrary we have conformed to the great weight of authority in this country to the effect that the acts of our Legislature will be sustained unless and until their invalidity is plainly established by the person attacking them. Therefore, a

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legislative finding that a moral obligation exists on the part of the State of West Virginia is to be regarded as settled fact until the contrary is plainly shown. The person wishing to establish the absence of a moral obligation has the affirmative: not he who depends upon a legislative finding to that effect.

In my judgment the majority opinion violates the substance of the fifteenth syllabus in

Slack

v.

Jacob,

8 W. Va. 612 , which reads as follows:

“The courts have no right to set aside, to arrest or nullify a law passed in relation to a subject within the scope of the legislative authority, on the ground that it conflicts with their notions' of natural right, absolute justice or sound morality.”

In addition to violating the substance of the syllabus just quoted it is perfectly plain to my mind that the Court is disregarding the seventh syllabus in the case of

Woodall

v.

Darst,

71 W. Va. 350 , 77 S. E. 264 , a case discussed at length in the Court’s opinion without referring to the syllabus just cited, which reads as follows:

“A fact once determined by the Legislature, and made the basis of an act, is not thereafter open to judicial investigation.”

The opinion in

Lemon

v.

Rumsey,

108 W. Va. 242, 247 , 150 S. E. 725 , cites the

Woodall

case to sustain the following statement: . “Other jurisdictions may support counsels’ contention, but this Court is committed to the doctrine that legislative determination of a fact is final.” The fourth syllabus in the

Lemon

case is: “A legislative declaration of fact, if not arbitrary, is final.” In my opinion the finding of the majority as expressed in its opinion is in direct conflict with the above-quoted syllabuses in the

Lemon

and

Woodall

cases, and if that be true those cases', for the sake of consistency, should at least be discussed and overruled.

The discussion of what is' and what is not a “juristic” question carried in the majority opinion, again with proper deference, impresses me as being only an academic

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wedge used to split the effect of legislative declarations of fact. The word seems to be used in an attempt to distinguish between actual fact and a conclusion of fact, the latter being partly based upon opinion and therefore “juristic.” That approach to the question opens an age old dispute as to whether an actual fact entirely divorced from opinion can be proven and expressed. It is certainly far simpler, more workable, and equally effective to adhere to the rule clearly enunciated in

Lemon

v.

Rumsey,

108 W. Va. 242 , 150 S. E. 725 , without- attempting to say what matters which the Legislature has declared to be facts are “juristic” and what are not. To my mind the Court’s third syllabus is far from clearly stated. The effect of it seems to be that in considering “juristic” facts the Legislature is invading the province of the judiciary, and yet the opinion states that when it does so its finding is entitled to “great weight and serious consideration.” To hold that the determination of a moral obligation “based upon facts which give rise to a juristic condition” is a judicial, and not a legislative, function, looking at the matter practically, will rob the Legislature of power to act. There is no way that the courts can advise the Legislature in advance, and it certainly does not wish to risk encroaching upon the powers of another department of government. But regardless of what is meant by the third syllabus, it would certainly be equally just and far more practically understandable to adhere to the rule pronounced in the

Lemon

case.

I look upon chapter 147 of the Acts of 1947, granting some measure of financial relief to those who contract the disease in a state tuberculosis institution, not as a denial of a preexisting moral obligation to this claimant, but to the exact contrary, I think it was an effort to remedy a wrong that applies to a class and to say to that class' that if any of its members are injured by recognizedly dangerous employment by the State that they shall be at least partially provided for, an express assurance that this claimant did not have.

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To my mind the statement of the nature of this case and its origin made in the first paragraph of the Court’s opinion is in error. I do not believe that it can be accurately said that petitioner seeks the issuance of a warrant for the payment of an award made to him by the State Court of Claims. What he seeks is a warrant to be issued by the auditor in payment of an express appropriation made to him by the Legislature of the State of West Virginia. The auditor and the State Court of Claims have no direct official contact or connection.

For the foregoing reasons I dissent from the majority opinion.