(dissenting in part). I think the decisions of the courts compel the conclusion that, if chapter 459 of the Laws of 1919 is not in contravention of section 28 of article III of the State Constitution, it does not violate section 19 of article III or section 9 of article VIII, for it does not in terms or effect audit or allow any claim against the state, and, if there exists against the state and in favor of the contractors for whose relief the act in question was passed a moral and equitable obligation, though not a legal one, the payment of the money of the state in discharge of such obligation, pursuant to the provisions of an act of the legislature in other respects valid, would not be a gift or gratuity within the meaning of section 9 of article VIII of the Constitution. Cayuga County v. State of New York, 153 N. Y. 279; Munro v. State of New York, 223 id. 208.
I conclude also that the act is not in contravention of section 28 of article III of the Constitution. Of course, if 'contractors are permitted to recover by virtue of its provisions they will have received extra com*248pensation, because they will have received compensation over and above that fixed by their contracts when the labor and materials were furnished (Matter of Mahon v. Board of Education, 171 N. Y. 263, 266), but such extra compensation has not been granted by the act, the meaning and effect of which is merely to refer such claims to this court to be heard and examined upon legal evidence to the end that this court may determine whether or not in conscience, equity and justice the state should pay any amount, and if so what amount, on account of the facts alleged in the claim and proven on the trial, the legislature having by the act waived legal defenses to the extent specified in the act.
The section of the Constitution under consideration does not provide that no contractor shall receive any extra compensation, or that the state shall not grant, allow or pay any extra compensation, but merely that the legislature shall not do so. The act contains no language expressly granting any compensation, extra or other, to any contractor, but is a general act declaring a policy of justice and equity to those who under extraordinary war conditions have expended moneys for the benefit of the state in amounts far greater than the state was legally bound to repay, and provides for payment only if and when this court shall by its judgments establish valid claims.
It is urged by the state that the statute by its terms leaves nothing to the court to be judicially determined but commands the court to render the exact judgment directed by its terms. When, however, the act is read and construed in the light of the law as declared in Munro v. State of New York, 223 N. Y. 208-214, and the word “ shall ” in the twelfth line of section 6 read as “ may ” in conformity to the rule there enunciated and applied, it appears that the court is not commanded, but authorized and permitted to render judg*249ment in such cases, and to fix the amount of the recovery, restricted, however, by the limitations expressed in the act.
Attention has been called to the fact that the act under consideration does not, as did the act construed in the Munro Case, supra, in terms confer upon the court jurisdiction to determine, but merely to hear, such claims. This circumstance I regard unimportant. Jurisdiction to hear necessarily implies authority to determine. Hearing without determination would be idle and futile and the legislature cannot be held to have intended an idle ceremony. American Bank Note Co. v. State of New York, 64 App. Div. 223, 227.
Attention has also been called to the fact that the act construed in the Munro case by its terms authorized the court to render judgment for such sum as shall be “ just and equitable,” whereas in the act under consideration the words “ just and equitable ” or equivalent words are not used and it is argued that hence the court has not been authorized to determine as to the justice and equity of such claims, but that the legislature itself has determined the justice and equity of the claims in advance, and in favor of claim-' ants, leaving to the court only the duty of computing the amount of the judgment to be rendered. I do not so read the statute.
Jurisdiction to hear and determine includes power to determine and decide every question necessarily involved in the case being heard. The words “ The Court of Claims shall (may) determine the increased cost * * * and render judgment against the state for the amount so determined as chargeable to the state ” confer power and authority to allow or reject claims in whole or in part and in considering whether they are to be allowed, to take into consideration principles of equity and common justice, disregarding *250purely legal defenses to the extent permitted by the act. Cole v. State of New York, 102 N. Y. 48, 52; Munro v. State of New York, 223 id. 208, 213.
There is abundant authority to support the power of the legislature by appropriate enactments to recognize the moral and equitable obligations of the state to the extent of referring them to this court for examination and determination and allowance if the facts shall establish a moral and equitable ground for recovery, though the legislature is forbidden by the Constitution to itself audit and allow such claims. Board of Supervisors of County of Cayuga v. State of New York, 153 N. Y. 279; Cole v. State of New York, 102 id. 46; O’Hara v. State of New York, 112 id. 146; Wheeler v. State of New York, 190 id. 406; Lehigh Valley R. R. Co. v. Canal Board, 204 id. 471; Munro v. State of New York, 223 id. 208.
I have not overlooked Matter of Mahon v. Board of Education, 171 N. Y. 263. The statute there considered (Laws of 1900, chap. 725) made no provision for the hearing and determination of the claims of the retired teachers to a pension, but the right to the pension and the amount thereof were determined by the direct action of the legislature; hence the act was held to be in contravention of section 28 of article III of the Constituton.
However, I concur in the opinion of Presiding Judge Ackerson that this court is without jurisdiction to make an award in claimant’s favor upon this claim for the reason that chapter 459 of the Laws of 1919 does not apply to claimant’s contract nor to this claim, and, therefore, that the claim should be dismissed.