Munro v. State

• Decision Date: 02 April 1918
• Citation: 119 N.E. 444,223 N.Y. 208
• Parties: MUNRO v. STATE.
• Court: New York Court of Appeals Court of Appeals

223 N.Y. 208

119 N.E. 444

MUNRO

v.STATE.

Court of Appeals of New York.

April 2, 1918.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by John I. Munro against the State of New York. From an order of the Appellate Division (181 App. Div. 30,168 N. Y. Supp. 61) affirming the determination of the Court of Claims in favor of claimant, the State appeals. Affirmed.

Merton E. Lewis, Atty. Gen. (Edmund H. Lewis, of Syracuse, of counsel), for the State.

Willard N. Baylis, of New York City, for respondent.

CRANE, J.

John I. Munro was in the employ of the state of New York as a fireman and electrician at Kings Park State Hospital, Suffolk county, from January 1, 1906, to the 27th day of September, 1909. On the latter date, while in the discharge of his duties, he was assaulted by an inmate of the institution and seriously injured. This insane man, named Zabilski, with some 15 or 20 other incompetents, under the care and supervision of two attendants, was working on a public highway known as the Smithtown-Huntington road in the vicinity of the hospital. Munro was fixing some electric wires near the highway, and as he was passing along the road near the spot where these incompetents were at work Zabilski, without any warning, suddenly struck him over the head with a spade, fracturing his skull, injuring his spine, and crippling him for life. At the time of this occurrence Munro was a strong man, 31 years of age, earning about $100 a month, with a wife and three children dependent upon him.

The state continued to pay Munro his full salary until December 1, 1912, and from then until October 1, 1915, the sum of $40 per month, so that he received from the state $3,716.

In 1915 the Legislature of the state of New York passed the following act (chapter 658), which became a law May 19, §915, with the approval of the Governor:

‘Section 1. The Court of Claims is hereby authorized to hear, audit and determine the claim of John I. Munro against the state for injuries alleged to have been sustained by him while in the employ of the state in the electrical department of the Kings Park State Hospital, at Kings Park, and in the course of such employment, by reason of being struck by a patient in such hospital; and if the court finds that such injuries were so sustained, damages therefor shall constitute a legal and valid claim against the state, and the court shall award to and render judgment for the claimant for such sum as shall be just and equitable, notwithstanding the lapse of time since the accruing of damages, provided the claim herein is filed with the Court of Claims within one year after this act takes effect.

‘Sec. 2. This act shall take effect immediately.’

Thereafter Munro filed his claim for damages, and, the matter having been heard in the Court of Claims, an award was made to him of $25,000, less $3,716 which he had already received, making a balance due him of $21,284. From an affirmance of this award by the Appellate Division an appeal is taken to this court upon the ground that this act of the Legislature is unconstitutional.

[1] It is said, in the first place, that it violates article 3, § 19, of the Constitution, which prohibits the Legislature from either auditing or allowing any private claim against the state. We do not think so. The Court of Claims is given authority to hear, audit, and determine the claim of John I. Munro, and this authority to determine necessarily includes the power to allow or reject as justice and equity may demand. No sum is to be allowed unless it be just and equitable. Such is the meaning of the act. The Legislature does not audit the claim; this it could not do under the Constitution, and while the wording of the act is not as precise and as exact as it might have been, yet we think this construction is reasonable and carries out the procedure intended. Such construction is in harmony with previous acts conferring jurisdiction upon the court.

[2][3] It might appear at first reading as if the Legislature had allowed Munro's claim and merely left it to the Court of Claims to fix the amount of damages, but, when we read more closely and apply the rules of statutory construction, this impression vanishes. ‘The spirit, not the letter, must control,’ said Miller, J., in Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514, 522,109 N. E. 600, 602 (L. R. A. 1916A, 403, Ann. Cas. 1916B, 276) where ‘may’ was held to mean ‘shall be.’

By the first clause of the act the Court of Claims ‘is authorized to hear, audit and determine the claim of John I. Munro.’ It is then provided:

‘If the court finds that such injuries were so sustained, damages therefor shall constitute a legal and valid claim against the state, and the court shall award to and render judgment for the claimant for such sum as shall be just and equitable.’

The use of the word ‘shall’ in these latter phrases was not intended to nullify the power of the court to hear, audit, and determine or make it compulsory to award damages. The clear intent of the Legislature was to confer authority and power upon the Court of Claims, and not to direct or control its action. The words ‘shall’ and ‘must,’ when found in a statute, are not always imperative. Matter of State of New York, 207 N. Y. 582, 585,101 N. E. 462.

The instances are many in which courts have treated a mandatory word as merely permissive when necessary to sustain an act or accomplish the purpose which was clearly intended. Matter of Rutledge, 162 N. Y. 31, 56 N. E. 511,47 L. R. A. 721;Canal Commissioners v. Sanitary District of Chicago, 184 Ill. 597, 56 N. E. 953;State v. Straiht, 94 Minn. 384, 391, 102 N. W. 913.

In Anderson's Appeal, 215 Pa. 119, 64 Atl. 443, it was said:

‘The word ‘shall,’ when used by the Legislature to a court, is usually a grant of authority and means ‘may.”

‘As against the government, the word ‘shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.' Railroad Co. v. Hecht, 95 U. S. 168, 170, 24 L. Ed. 423.

‘The substitution of one word for another, as ‘and’ for ‘or,’ is permissible in the construction of statutes and ordinances, * * * and is required if necessary to sustain an enactment that would otherwise be void.' People v. Frudenberg 209 N. Y. 218, 220,103 N. E. 166, 167.

This act is not unlike the statutes in other cases. Cole v. State of New York, 102 N. Y. 48, 6 N. E. 277;O'Hara v. State of New York, 112 N. Y. 146, 19 N. E. 659, 2 L. R. A. 603, 8 Am. St. Rep. 726; Wheeler v. State of New York, 97 App. Div. 276,90 N. Y. Supp. 18; s. c., 190 N. Y. 406, 83 N. E. 54,123 Am. St. Rep. 555;Roberts v. State of New York, 160 N. Y. 217, 54 N. E. 678;Bd. Sup'rs of Cayuga County v. State of New York, 153 N. Y. 279, 47 N. E. 288.

That the state cannot give its money for private undertakings or in the exercise of gratitude or charity is firmly established. Constitution, art. 8, § 9. The Legislature, however, is not prevented from recognizing claims founded on equity and justice, though they are not such as could have been enforced in a court of law if the state had not been immune from suit. Many are the instances where the state has allowed claims for work performed, or material furnished, or improvements made in conjunction with quasi public corporations, although there was no legal liability had the state been an individual instead of sovereign. Lehigh Valley R. R. Co. v. Canal Board, 204 N. Y. 471, 97 N. E. 964, Ann. Cas. 1913C, 1228;Trustees...