The opinion
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Kenna, Judge,
dissenting:
The majority opinion contains this statement:
“But, early in the history of this State, an appropriation by the Legislature to pay what was considered a just obligation of the State, ‘predicated upon simple justice and right’, was approved by this Court.
Slack
v.
Jacobs,
8 W. Va. 612 . No subsequent decision of this Court, however, has accepted that broad statement as a basis for a moral obligation, as subsequent decisions attest. * * *”
That statement, if accurate, should require the overruling of the
Slack
case. That is not attempted. But the statement is far from accurate. In the case of
State
v.
Sims,
130 W. Va. 430 , 43 S. E. 2d 805, 814 , 172 A. L. R. 1389, this Court held:
“Other situations may arise in which a moral obligation may properly be found to exist against the State, involving 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, as indicated by the statements already referred to in the opinions of this Court in the
Slack
and
Woodall
cases. Such situations, however, in which a moral obligation of the State might properly be recognized, should be considered as an exception to the general rule just stated; and in each instance the determination of that question depends upon the facts and the circumstances of each particular case.”
In the case just cited, popularly referred to as the
“Cashman case”,
I dissented, and undertook to point out what to my mind was the confusing error made by the Court in establishing as an exception to the general rule what I then regarded, and now regard, as the controlling principle in arriving at what is and what is not a moral obligation of the State, and further, in not applying that principle to the circumstances before the Court in the
Cashman
case. It is my fear that the Court’s present discussion will further complicate what I regarded at the
*326
time of the
Cashman
decision as an easily avoidable confusion.
This dissent is not written in persistent disagreement with the Court’s opinion in the
Cashman
case. That case has been decided. I thought it had enunciated the law concerning a moral obligation of the State in this jurisdiction. This is a comment upon what I regard as a departure from the controlling principle, though there spoken of as an exception, pronounced in the
Cashman
case decided July 11, 1947. The annotation in 172 A. L. R. 1407 discusses cases which without exception sustain this view.