
    (No. 646
    J. W. COOLE, Claimant, v. STATE OF WEST VIRGINIA, Respondent.
    
      Opinion filed November 12, 1948
    
    
      Appearances:
    
      Salisbury, Hackney & Lopinsky (Emerson W. Salisbury and John G. Hackney) for claimant.
    
      Easton B. Stephenson and W. Bryan Spillers, Assistant Attorneys General, for the state.
   CHARLES J. SCHUCK, Judge.

Claimant Junior Coole was tried and convicted on the charge of obtaining money under false pretenses by uttering and passing worthless checks. His trial and conviction took place in Jackson county, West Virginia, in November of 1939, and after refusal by the trial court to set aside the verdict of the jury and grant a new trial, the claimant was sentenced to the state penitentiary for a term of from two to ten years. An appeal to the Supreme Court having failed, claimant was conveyed to and received at the penitentiary on or about March 26, 1940, and remained confined there as a prisoner for a period of six months, at which time he was released on parole, and, subsequently, on the seventeenth day of June, 1948, he was granted a full pardon by The Honorable Clarence W. Meadows, Governor of the state of West Virginia. The pardon sets forth the reasons for the Governor’s action and contains the statement, in effect, that an investigation, made after the conviction of claimant and his confinement in the penitentiary, indicates a miscarriage of justice which justifies his release and full pardon. Claimant had also been confined in the county jail at Ripley from the time of his arrest in November, 1939, to the day he was taken to the penitentiary, a period of approximately five months, during all of which time he was, of course, treated as a prisoner and subjected to all the rules and discipline of the jail authorities.

The checks in question, and used as the basis for the conviction of claimant, were similar in handwriting and bore every evidence of emanating from the same source and as having been written by one and the same person. This fact is highly important in the light of subsequent events and the investigation by the state police authorities that had been set in motion prior to the conviction of claimant and continued after his confinement in the penitentiary, and which finally led to his pardon and release. It must also be borne in mind that for several years after claimant was released on parole, and before his pardon, he was subjected to all the rules and regulations applicable to the actions and freedom of a parolee, and was obliged to report to and keep in touch with the proper parole officer and- to limit his travel or work to the territory fixed by the parole authorities, all of which added to his disgrace and degradation.

We come now to the startling and extraordinary facts that developed from the investigation heretofore refered to, and which ultimately led the Governor to grant a full and complete pardon to claimant, and which facts have since become the foundation on which claimant bases his claim before this court.

Among the state police officers called to assist in bringing about the arrest and conviction of the person circulating the worthless checks in Jackson county at the time was one R. I. Boone, by rank a master technical sergeant, specializing in firearms, identification and document examination, and commonly known as the handwriting expert of the state police department. He had seen and examined the questionable checks before the trial of the claimant, was subpoenaed as a witness by the state, and yet, for some unaccountable reason, was not used as such by the prosecuting attorney in charge. He had not seen claimant’s handwriting until the day of the trial at Ripley, and after obtaining specimens thereof concluded that the checks had not been written by claimant, and he is now of the opinion that this information was conveyed to the prosecuting attorney at the beginning of or during the trial. (Record pp. 62-63). In any event he was not called as a witness and was dismissed from further attendance.

During the incarceration of claimant in the jail at Ripley and before he was taken to the penitentiary, worthless checks were uttered and passed on several merchants in Ravenswood, located in Jackson county. The then sheriff of Jackson county, one Clarence F. Myers, and a witness before this court, as such sheriff in charge of the custody of claimant, took claimant to Ravenswood, West Virginia, where he was identified as the man who had uttered and passed the worthless checks, when in fact he was then and had been confined in jail at the very time, and it would have been absolutely impossible for him to have committed the acts in question. (Record p. 8). That the merchants at Ravenswood were honestly mistaken there can be no doubt, but that the prosecuting attorney should fail to heed or consider the information obtained by the then sheriff, Myers, and which he imparted to the prosecuting attorney, is beyond our comprehension. Several more such bogus checks made their appearance and were uttered and passed during the period when claimant was confined either as a prisoner at the jail or at the Mounds-ville prison, and, as testified to by C. A. Hill, the circuit clerk of Jackson county, all this information was passed to the proper authorities, but to no avail. (Record pp. 54-55-56-57).

Another witness, Paul R. Pritchard, a corporal in the state police department, who arrested claimant and later found, as he stated (record p. 121) that the checks “still came out after he went to the penitentiary” concluded that claimant could not possibly be guilty of the crime or crimes for which he was indicted in Jackson county, and has since concluded, from the investigations made, that the man guilty of the crimes for which claimant was convicted is now confined in the Ohio state penitentiary, at Columbus, Ohio. (Record pp. 115-116).

Returning now to the witness Boone, he testified, in answer to the question as to whether the checks in question had been written by claimant, “That in my opinion he never did. It has always been my opinion that he could not have written them or endorsed them.” (Record p. 67). And so, with this opinion in mind, and being an able and conscientious officer, as he must have impressed all who heard him testify before us, he went to the Ohio prison to interview and obtain specimens of the handwriting of the man under suspicion of having uttered and passed the worthless checks in and about Jackson county in our own state, and he unequivocally stated and testified (Record pp. 67-68) that the man who wrote and uttered the checks on which claimant was convicted is now a prisoner in the Ohio penitentiary, and known as Edward Allen, thus exonerating claimant from all guilt insofar as the Jackson county charges were concerned and showing clearly, when connected with the mass of other testimony, that he was unjustly, wrongfully and improperly convicted, and that the witnesses who testified against him though honestly convinced were, nevertheless, honestly mistaken, and that his testimony to the effect that he had never been in Ripley or Jackson county before the day of his arrest is fully borne out by the testimony presented.

Giving due consideration to the foregoing facts, we are forced to the conclusion that the claimant was wrongfully convicted, that he was innocent of the charges set forth in the indictment, and that the person who actually uttered and passed the checks has not as yet been apprehended by the state of West Virginia, but is at the present time an inmate of the Ohio state penitentiary, and that, consequently, claimant was obliged to undergo long imprisonment for a crime he never committed.

We are therefore now concerned in determining whether the foregoing undisputed facts create an obligation on the part of the state sufficient to warrant an award in money which may, in a degree, give some satisfaction and compensation to the claimant for the grievous wrong that has been done to him. The state, being protected by the so-called “immunity” clause of our constitution and not subject to suit in our courts of law except indirectly within very narrow limitations, created the state court of claims as a special instrumentality to hear and determine claims and demands which the state as a sovereign commonwealth should in equity and good conscience discharge and pay; in other words, the payment and discharge of a claim by reason of a moral obligation resting on the state and because of its very nature requiring an award in justice, equity and good conscience.

Our Supreme Court of Appeals in the case of State ex reL. CasHman v. Sims, 43 S.E. (2d) 805, at page 814, in considering this all-important question now under consideration, states the rule as follows:

“The sound and just general rule by which a moral obligation of the State in favor of a private person may be recognized, and for the payment of which a valid appropriation of public funds in the interest of the public may be made by the Legislature, requires the existence of at least one of these components in any particular instance: (1) An obligation or a duty, by prior statute created or imposed upon the State, to compensate a person for injury or damage resulting to him from its violation by the State or any of its agencies, or to compensate him for injury, damage, or loss sustained by him in or by his performance of any act required or authorized by such statute; or (2) an obligation or a duty, legal or equitable, not imposed by statute but created by contract or resulting from wrongful conduct, which would be judicially recognized as legal or equitable in cases between private persons.” (Italics supplied.) .

Now, there being no prior statute created to compensate one for injury or damage as outlined in the Cashman decision, supra, we must necessarily look to the second part of the rule as stated, namely, “An obligation or a duty, legal or equitable, not imposed by statute . . .,” to determine whether or not in the instant case a moral obligation is created, sufiiciently founded in justice and equity and by the very nature of the case or claim and the facts upon which it is based, requiring an award for the injuries done. We do not believe that the Supreme Court in the Cashman case, supra, meant to say that wrongful conduct to create a moral obligation must be vicious and evil in its intent, but rather that an irreparable injury done one by the state or any of its agencies without any element of malice or feeling may be sufficient to impose a moral obligation on the state to make some restitution if possible for the wrongful act complained of by a claimant against the state. If the state commits an act which injures a person and which act is afterward shown to have been wrong, erroneous and unjust, and if the act or acts complained of had occurred between private persons or individuals for which the aggrieved person would have an action at law, then a moral obligation is created which the state should be called upon to discharge and satisfy. Can there be any element of doubt as to a moral obligation having been created by the facts here under consideration? Deprived of his liberty and freedom for a long period of time — a liberty and freedom constituting the greatest and most precious heritage of man in a democracy such as ours, subjected to the lowest form of degradation, branded by the felon’s indelible mark, he forever enters the class of the “untouchables”; shunned, avoided and despised by his fellow men and ostracized from the society of those who had hitherto been his companions and friends. No greater harm or more serious injury could befall any man than the unwarranted, improper conviction of the claimant, innocent as he was of the charges brought against him.

In the case of State ex rel. Adkins v. Sims, Auditor, 34 S.E. (2d), 585, the Supreme Court held as follows:

“In order to validate a legislative appropriation of public money for private use it must affirmatively appear that the Legislature in making the appropriation has found that it was necessary in order to discharge a moral obligation of the State.”

Again we may ask, what, then, is a moral obligation? And the answer seems to be, one that cannot be eniorced by action but is binding on the persons who incur it in conscience and according to natural justice. An obligation which one owes in equity and good conscience but which cannot be enforced at law. A duty which would be enforceable at law as between man and his fellow man were it not for some positive rule which exempts the party in that particular instance from legal liability. Longstreth v. City of Philadelphia, 91 A. 667, 245 Pa. 233; MacDonald v. Tefit-Weller Co., 128 F. 381, 385, 63 C.C.A. 123, 65 L.R.A. 106. Words and Phrases, Vol. 27, pp. 551-552, and cases cited.

We repeat that in our opinion a consideration of the facts fully justifies the finding of a moral obligation devolving upon the state which in equity and justice should be discharged. Can the Legislature make a valid appropriation to cover an award, if made, in favor of the claimant? Courts generally have held that while the Legislature may not sanction a gift of public moneys for private purposes, it may in certain instances acknowledge the justice of a private claim against the state and provide for its audit and allowance by a court of claims, providing that the claim appears to the judicial mind and conscience to belong to a class of claims concerning which in the exercise of a wide discretion the Legislature might reasonably say are founded in equity and justice and involve a moral obligation upon the part of the state which the state should satisfy. Farrington v. State, 248 N. Y. 112. To the same effect are Williamsburg Savings Bank v. State, 248 N. Y. 231; Munroe v. State, 223 N. Y. 208.

With the foregoing decisions we are constrained to agree and feel that courts generally throughout our country sustain this view.

The state relies upon and has submitted for our consideration the case of Allen v. Board of State Auditors, 122 Mich. 324, a case in some respects resembling the one under consideration. However, there are a number of distinguishing features, namely, in the Michigan case no appeal was asked for after conviction; the pardon granted was not on the ground of the innocence of the accused as in the instant matter; the application for relief was made nine years after claimant was released; it was an apparent attempt to have the board of auditors find whether or not claimant was guilty or innocent, whereas in the instant case the innocence of the claimant is definite and unquestionable and so regarded by all, including the Governor and officers and officials who have had any contact with the case or claim in any way or manner.

We come now to the matter of damages, and while in our judgment no award can be sufficient to pay the claimant for the unwarranted, deplorable and irreparable injury that has been done to him, we feel that a substantial award is required to satisfy the ends of justice. In considering the amount of the award we are not unmindful of claimant’s subsequent plea of guilty, conviction and imprisonment in Ohio for failure to have sufficient funds on deposit to meet the amount of a check drawn thereon, and while this conviction may mitigate damages it cannot relieve the state of West Virginia of its obligation to claimant. It' is within the range of possibility to assume from all the facts that if claimant had not been falsely charged and convicted in Jackson county he would perhaps not have been called upon to answer the charge in Ohio, but would have been allowed to settle for the difference between the amount on deposit in the bank on which the check was drawn and the amount of the check itself.

After a most careful consideration of all questions and matters involved, reviewing the facts, the nature of the charges, the conviction, sentence and imprisonment of claimant, the great and irreparable injury to him, and his absolute innocence, we are of the opinion that an award in the amount of ten thousand dollars ($10,000.00) should be made, and we therefore recommend to the Legislature (1) either the necessary appropriation to cover the amount of the award, or (2) the passage of a special act, as was done in New York state recently in a case based on similar facts. Bertram M. Campbell v. State of New York.

ROBERT L. BLAND, Judge,

concurring.

This claim presents a case of first impression in West Virginia. Bearing in mind the rule that taxes may be levied and collected only for public purposes, after a rather extended examination of authorities relating to the power of the Legislature to make appropriations of public revenues and due consideration of the record of the trial court in which claimant was convicted of a felony as well as the record made in this court upon the investigation and hearing of the claim under consideration, I have reached the conclusion that an award should be made in favor of claimant, for the reasons hereinafter set forth, and accordingly agree with my colleague, Judge Schuck, to that extent and effect.

I deem it advisable to observe at this juncture that claimant is a nonresident of West Virginia and a citizen of Ohio. He was arrested in that state, confined in prison there, and subsequently brought to this state by West Virginia officers and placed in the Jackson county jail. He was indicted by a grand jury of that county and later convicted of an offense alleged to have been committed there, and sentenced to- a term of imprisonment in the penitentiary at Moundsville. Upon his trial in the circuit court of Jackson county he testified that he had never been in that county prior to the time he was brought there to the jail. He gave like testimony in this court.

After claimant was incarcerated in the Jackson county jail and before his trial, investigation was made by members of the West Virginia department of public safety, leading them to believe that claimant was innocent of the offense charged against him and upon which he was to be prosecuted, and they so informed the prosecuting attorney of Jackson county. That official had definite information as to the findings and conclusions of the West Virginia officers. If their information had been allowed to be considered by the jury it is possible, and it seems to me also probable, that the verdict rendered would have been one of acquittal rather than conviction. If the prosecuting attorney of the county, an officer of the sovereign state of West Virginia, failed in the discharge of his duty to.give the defendant, the claimant here, that consideration to which he was entitled, when charged with so heinous an offense, and his failure may have been a determining factor in the verdict rendered by the jury, then is the state not responsible? All of the people within its boundaries constitute the state — the state is actually the people.

In 23 Corpus Juris Secundum, at page 276, we find the following pertinent authority:

“While officials connected with detection and prosecution of crime should be diligent in ferreting out and prosecuting the guilty, they should be fair to accused and evidence pointing to his innocence should not be suppressed. People v. Reed, 81 P.2d 162, 27 Cal. App. 2d 484.”

I am persuaded that a great and irreparable wrong has been done to claimant by the state of West Virginia, by reason of his conviction in a West Virginia court and his imprisonment in the West Virginia penitentiary. He suffered not only the stigma and ignominy incident to a felon’s conviction, but in addition thereto the loss of an established business which theretofore had yielded him an income of from five to seven thousand dollars annually.

His pardon, after due investigation as to his innocence of the offense for which he was tried in this state, was recommended by the superintendent of the department of public safety, and an unconditional pardon was given to him by the Governor of West Virginia.

To my mind it seems clear that the claim is based upon the strongest ground of equity and justice.

May the Legislature make a valid appropriation to claimant, a private person, within the meaning of the law authorizing it? I think it may. In 51 Am. Jur. Taxation, Sec. 326, this broad rule is laid down:

“It is stated generally that a tax may not be levied to pay a claim for which no legal or moral obligation exists. However, the public necessities are not the sole purposes to which the public reve-nes may be applied, but, on the contrary, considerations of natural equity, gratitude, and charity are never out of place, even in determining the imposition of the public burdens. Claims against the state founded in equity and justice in the largest sense, or in gratitude or charity, will support a state tax, provided the payment thereof is directly in the public interest.” (Italics supplied.)

In the case of Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 318, 6 L. Ed. 606, Mr. Justice Trimble, in his opinion on page 317, defines the far-reaching meaning of a moral obligation in this language:

“Moral obligations are those arising from the admonitions of conscience, and accountability to the Supreme Being. No human law-giver can impair them. They are entirely foreign from the purposes of the constitution.”

In Fairfield v. Huntington, reported in 205 Pac. 814 and 22 A.L.R.. at page 1438, the Supreme Court of Arizona held that a statute to reimburse a state employe for an accidental injury arising out of and in the course of his employment is not special legislation, since it is to satisfy an obligation resting upon all the people tvho constitute the state.

On the power of the Legislature to make an appropriation to satisfy an award in favor of claimant, it is pertinent to cite the New York case of Williamsburg Savings Bank v. State, 243 N. Y. 231, wherein it is held:

“The State may voluntarily recognize just obligations which it fairly and honestly ought to pay even though they do not constitute purely legal claims. When a claim is presented which securely rests upon a foundation of equity and justice and which involves a moral obligation, it may be recognized without infringing upon constitutional provisions protecting taxpayers against waste and extravagance. But the decision to pursue this course is a privilege and not an obligation, and the State alone, through its Legislature, can decide which course it will pursue. It cannot delegate to the courts or some other agency the duty of determining what its decision ought to be.”

May it not be said that the instant case or claim is one which rests upon a foundation of equity and justice? And does not an obligation rest upon all of the people of the state to make some reparation for the great wrong which claimant has suffered?

Our own Supreme Court in the Cashman case, cited by Judge Schuck, lays down the rule that a moral obligation is an obligation or a duty, legal or equitable, not imposed by statute but created by contract or resulting from wrongful conduct which would be judicially recognized as legal or equitable in cases between private persons. If the claimant is entitled to recover in this case his award must be based on some wrongful act done by the state. We thus come to the point where we must decide what is meant by the term wrongful act. As between individuals there is certainly no necessity for the existence of an evil intent in order for one individual to commit a wrong upon another. Should there then be any distinction between state and individual as to what is meant by a wrongful act? I think not. It is true that the state is sovereign in its power. It is also true that the individual is supreme in his right.

Fiat justitia ruat coelum!

MERRIMAN S. SMITH, Judge,

dissenting.

Thanks to American jurisprudence this is a claim that rarely ever confronts our courts, however, it is one of momentous importance. I do not know of any circumstance except the taking of life itself that would create a greater appeal to the heartstrings than the conviction and incarceration of an innocent victim. Oftentimes we are prone to let our heart get the best of our better judgment.

I have a deep and profound respect for the experienced and learned opinions of the majority of this court, and it is with reluctance that I cannot concur in an award in the instant claim. However, in all fairness and justice to myself and the great state of West Virginia in this particular class of claim no award should be made unless there be a prior statute. After a careful and diligent search of the authorities I do not find a single instance of reparation being made by the state in such cases except where there is a prior statute. There is at least one claim, and doubtless more in former years, that was introduced in the 1981 regular session of the West Virginia Legislature — house bill No. 14, wherein the Legislature was asked to pass a claim in the sum of one thousand dollars to compensate Frank Howell of New Martinsville, West Virginia, because he was wrongfully convicted and confined in the penitentiary at Moundsville for fourteen months, after which the guilty party made a voluntary confession of the crime, which has not been done in the instant claim. The bill was killed in the senate.

The majority opinion of this court bases its finding of an award largely upon what constitutes a moral obligation as defined in our Court of Appeals in Cashman v. Sims, cited in the majority opinion, “. . . or an obligation or a duty, legal or equitable, not imposed by statute but created by contract or resulting from wrongful conduct, which would be judicially recognized as legal or equitable in cases between private persons.” There is no analogy in the instant claim between a private person and a sovereign state where an obligation arises in the performance of this governmental function. The sovereignty of the state must be upheld and maintained at all times. It cannot be sucessfully denied that claimant was given a fair and impartial trial. He had the benefit of his ■ self-employed private counsel and was tried before a jury of twelve men selected among his peers. There is no evidence of any persecution by the state and no rights under the constitution or laws of the state were denied him. I repeat I do not think an award can be made unless there be an obligation imposed by prior statute, where there has been absolutely no negligence on the part of the agency involved in the regular performance of its governmental function, which power in this instance is the very essence of the sovereignty of the state. If a reward be; bestowed upon an innocent person convicted of a crime, by the same token by whom and to whom is a penalty to be inflicted when a guilty person is acquitted?

An award in the instant claim would be the bestowal of a gratuity out of the public revenue for a private purpose, unless such moral obligation be so recognized by a prior statute.  