Opinion

State Ex Rel. Bennett v. Sims

  • 131 W. Va. 312
  • 48 S.E.2d 13
  • 1948 W. Va. LEXIS 17
Court
West Virginia Supreme Court
Filed
Mar 16, 1948
Status
Published
Author
Kenna
On the bench
Fox, Riley, Kenna
Cited by
17 cases
Authority
More cited than 2.4%

The opinion

*325

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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