been advanced by them for the use of any of the departments of the city or county, which act included the advance above mentioned. This act was held to be a valid exercise of the legislative power.'

$126. Nature of Moral Obligation which may be recognized. In the case in which the courts first acknowledged the power of the legislature to recognize claims founded in justice and equity and to require municipalities to discharge obligations, although not legally binding, language was used which has caused considerable diversity of opinion. The court said that the legislature can recognize claims founded in justice and equity in the largest sense of these terms, or in gratitude or charity, and that, independently of express constitutional restrictions, the legislature is the judge of what is for the public good, and can make appropriations of money whenever the public well-being requires or will be promoted by it. This language went further than the question that was before the court in that case, because all that was actually decided was that the legislature had power to require a board of supervisors to assess upon the taxable property of a town the amount which highway commissioners had been compelled to pay for costs in an action commenced by them pursuant to the direction of the voters of the town. The language

1 Mayor, &c. of New York v. Tenth National Bank, 111 N. Y. 446. Earl, J., says: "The legislature may determine what moneys they may raise and expend, and what taxation for municipal purposes may be imposed; and it certainly does not exceed its constitutional authority when it compels a municipal corporation to pay a debt which has some meritorious basis to rest on"; citing Town of Guilford v. Supervisors; Brewster v. City of Syracuse; Darlington v. Mayor, 31 N. Y. 164; Brown v. Mayor, 63 N. Y. 239.

seem to support the author's criticism above of the Bank case made in the previous edition of this work.

2 In Guilford v. Chenango County, 13 N. Y. 143, the question involved was the right of the legislature to compel a town to reimburse its commissioners of highways for expenses disbursed by them in the conduct of a litigation undertaken by the direction of the voters of the town. The power of the legislature to compel the town to recognize the claim of the commissioners of highways and to repay the Assuming that the commissioners same, was sustained. In his opinion, had no power to borrow money, and Denio, J., said: "The legislature is not that the city was not liable for the ad- confined in its appropriation of the vances made to them by the bank, this public moneys, or of sums to be raised retroactive act imperatively requiring by taxation, in favor of individuals, to the city, without its consent, to make cases in which a legal demand exists good to the bank the large amount against the State. It can thus recogwhich the conspirators put into their nize claims founded in equity and juspockets and which never went into the tice in the largest sense of these terms, work, seems to carry the legislative or in gratitude or charity. Indepower beyond the just limits of equi- pendently of express constitutional table or moral obligation, which the restrictions, it can make appropriaauthor cannot but think is the true tions of money whenever the public measure of legislative power of this well-being requires or will be promoted character. The later decisions of the by it; and it is the judge of what is for same court, referred to infra, § 126, the public good."

of the court has frequently been criticised in later decisions of the same court.1 Although language is still to be found in recent decisions which seems to support the view that any moral obligation such as hardship suffered by the action of the legislature or of the municipality, is sufficient to support mandatory legislation requiring payments to be made to individuals in respect thereof, yet the tendency

1 Whilst the correctness of the judgment in this case was not questioned, the decision was criticised and some of the dicta as to the extent of the legislative power limited. Weismer v. Douglas, 64 N. Y. 91. In Cayuga County v. State, 153 N. Y. 279, 286, Andrews, C. J., speaking of this decision, said: "This language is very broad, and if it goes to the extent of affirming an irreviewable discretion in the legislature in every case to determine when taxation pertains to the public good, may possibly admit of qualification, but as exhibiting the general scope of the taxing power is forcible and true.' ." In Matter of Chapman v. New York, 168 N. Y. 80, 83, Vann, J., said of this decision that "Expressions were used by learned judges of this court which went beyond the requirements of the decisions they made. All that was actually decided was that the legislature had power to require a board of supervisors to assess upon the taxable property of a town the amount which highway commissioners had been compelled to pay for costs in an action commenced by them pursuant to the direction of the voters of the town. The payment of such a claim was not an act of charity, as it rested on a strong moral obligation." See also Matter of Straus, 44 N. Y. App. Div. 425; Matter of Jensen, 44 N. Y. App. Div. 509, 515; post, § 307 and notes.

J., said (p. 440): "Under the provisions of the Constitution (art. i. § 8), Congress has power to lay and collect taxes, &c. 'to pay the debts' of the United States. Having power to raise money for that purpose, it of course follows that it has power when the money is raised to appropriate it to the same object. What are the debts of the United States within the meaning of this constitutional provision? It is conceded, and indeed it cannot be questioned, that the debts are not limited to those which are evidenced by some written obligation or to those which are otherwise of a strictly legal character. The term 'debts' includes those debts or claims which rest upon a merely equitable or honorary obligation, and which would not be recoverable in a court of law if existing against an individual. The nation, speaking broadly, owes a 'debt' to an individual when his claim grows out of general principles of right and justice; when, in other words, it is based upon considerations of a moral or merely honorary nature, such as are binding on the conscience or the honor of an individual, although the debt could obtain no recognition in a court of law. The power of Congress extends at least as far as the recognition and payment of claims against the government which are thus founded. To no other branch of the government than Congress could any 2 In United States v. Realty Co., application be successfully made on the 163 U. S. 427, the Supreme Court of part of the owners of such claims or the United States had under consid- debts for the payment thereof. Their eration the power of Congress to ap- recognition depends solely upon Conpropriate the public moneys in the gress, and whether it will recognize payment of obligations which did not claims thus founded must be left to the rest upon any legal ground, but were discretion of that body. Payments to founded solely in justice and equity, individuals, not of right or of a merely and it held that it was within the power legal claim, but payments in the nature of Congress to appropriate money for of a gratuity, yet having some feature the payment of bounties to persons of moral obligation to support them, who had engaged in the production have been made by the government by and manufacture of sugar, in reliance virtue of acts of Congress, appropriatupon the continuance and validity of a ing the public money, ever since its statute of the United States giving a foundation. Some of the acts were bounty to persons engaged in such pro- based upon considerations of pure duction and manufacture. Peckham, charity. . . . The power to provide for

now seems to be to hold that a mere abstract equity of this nature is no longer sufficient. It has been said that a moral obligation which is sufficient to support mandatory legislation requiring a municipality to dispose of its property to an individual is one which a person ought to perform, but which he is not legally bound to fulfil. Of this sort of obligation it has also been suggested that there are two kinds. One of these, recognized by the law, is the moral obligation which arises where there has been a legal or equitable obligation of which the binding force has ceased to exist; as where facts have arisen since the obligation was incurred which may be pleaded to defend an action to enforce it. Such is the case where the statute of limitations has run against a claim, or where a debtor has been discharged in bankruptcy. While obligations of this nature are said to be only moral, yet all recognize that in fact they amount to something more; and that, therefore, they are available as a sufficient consideration to support an actual promise to do the thing which, but for the moral existence of the obligation, could not be compelled. The other class of moral obligations includes those which have not been preceded by any legal liability, and yet which might be sufficient to authorize the legislature to require their satisfaction, and which certainly would justify an honorable man in meeting them. Such are cases where money has been expended for the benefit of a city without any authority, and the city has received the full benefit from the expenditure, or where services have been rendered, labor has been performed, or money expended for the benefit of the city in reliance upon a contract which is invalid, because not made in the manner prescribed by the city's charter. We accordingly find that

claims upon the State founded in equity and justice has also been recognized as existing in the State governments. For example, in Guilford v. Chenango County, 13 N. Y. 143, it was held by the New York Court of Appeals that the legislature was not confined in its appropriation of public moneys to sums to be raised by taxation in favor of individuals to cases in which legal demands existed against the State, but that it could recognize claims founded in equity and justice in the largest sense of these terms or in gratitude or in charity. Of course, the difference between the powers of the State legislatures and that of the Congress of the United States is not lost sight of, but it is believed that in relation to the power to recognize and to pay obligations resting only upon moral considerations or

1

upon the general principles of right and justice, the Federal Congress stands upon a level with the State legislature."

Per Rumsey, J., in Matter of Straus, 44 N. Y. App. Div. 428; approved in Matter of Chapman v. New York, 168 N. Y. 80, 83. In Wrought Iron Bridge Co. v. Attica, 119 N. Y. 204, the court held that the legislature had the power to legalize defective proceedings of town authorities and in this way confer power upon the courts to compel the town to pay obligations which its officers contracted without observing the necessary steps pointed out by the statute and the benefits of which the town had already received and continued to enjoy. The claim was one for the removal of an old and the construction of a new bridge, the proceedings for such removal and construction

recent decisions apply more strictly than formerly the principle that the power of taxation can only be exercised for public purposes. This principle is now rigidly applied to prevent the application of the funds of a municipality, even pursuant to mandatory legislation, to purposes which cannot, in any fair sense, be said to be for the public benefit.' The whole question has recently been re-examined

by the Court of Appeals of the State of New York in a case which brought before it for consideration the question whether the legislature could require a city to reimburse a public officer for legal expenses incurred in successfully defending himself in any trial or proceeding to remove him from office, or to convict him of any crime alleged to have been committed in the performance of or in connection with his official duties.' The court held that in the cases included within the purview of the statute no benefit was conferred upon the city by the expenditures of the persons for whose relief the act was passed; that there never was a legal or moral obligation on the part of the city to pay the claim in question and that it could not be sustained. From time out of mind in all governments where the common law prevails, a person prosecuted for crime has been compelled to pay his own expenses when he had the means of doing so, and if without means was defended by counsel assigned by the court to serve without pay

said: "The power to impose taxes, general or local, which rests with the legislature, is without much express restriction in the Constitution, and yet even this power cannot be said to be absolute. On general principles it has, at least, one limitation, and that is that the money to be raised must be required for some purpose that in some sense, at least, can be said to be public. The legislature cannot authorize taxation for the purpose of making gifts, or paying gratuities to private individuals. It is quite clear that this was the purpose of the act in question. The individuals for whose benefit the tax was to be levied under the act had no claim, legal or equitable, against the town or county where the money was to be raised by taxation." To the same effect, Tabor v. Erie County, 131 N. Y. 432; Perkins v. Milford, 59 Me. 315; Moulton v. Raymond, 60 Me. 121; Freeland v. Hastings, 10 Allen (Mass.), 570; Mead v. Acton, 139 Mass. 341; Kelly v. Marshall, 69 Pa. St. 319; Ferguson v. Landram, 1 Bush (Ky.), 548.

In Matter of Chapman v. New York, 168 N. Y. 80, aff'g 57 N. Y. App. Div. 583, the statute under which the proceeding was instituted provided for the appointment of a referee "to hear, examine into, and report" the amount of reasonable counsel fees and expenses paid or incurred by a city or county officer in successfully defending himself in any trial or proceeding "to remove him from office, or to convict him of any crime" alleged to have been committed in the performance of or in

connection with his official duties; and that the amount allowed by the referee, when confirmed by the court, should be paid by the issue of revenue bonds to be included in the tax levied for the following year on the city or county affected. The applicant alleged in his petition to the court that while he was an officer of the police department of the city of New York, charges were preferred against him as such officer for official misconduct; that the charges were dismissed by the board of police commissioners, and that he had been compelled to incur and expend for reasonable counsel fees and expenses $11,500 and upwards, and he asked for the appointment of a referee to hear and examine into the claim and report his determination to one of the justices of the Supreme Court pursuant to the statute. The application was denied, and the order denying it was unanimously affirmed by the Appellate Division (57 N. Y. App. Div. 583), which followed without discussion its decisions in Matter of Straus, 44 N. Y. App. Div. 425, and Matter of Jensen, 44 N. Y. App. Div. 509, holding the statute to be unconstitutional as an attempt to impose a liability upon the city for the benefit of an individual and not for a city or county purpose. In so deciding the court held that there was no moral obligation or other consideration which could be invoked to support the claim of the applicant. On appeal to the Court of Appeals, the decision was affirmed for the reasons stated in the text.