I disagree and dissent from the opinion and findings of my brothers in this case. This case comes to us for decision under the provisions of chapter 711 of the Laws of 1927 which reads as follows:
“An Act to confer jurisdiction on the court of claims to hear, try and determine the claim of Louis A. Cuvillier for counsel fees and expenses incurred by him in successfully defending a certain charge of criminal libel preferred against him before a magistrate of the county of New York, and to render judgment therefor.
“ Became a law April 5, 1927, with the approval of the Governor. Passed, three-fifths being present
“The People of the State of New York, represented in Senate and Assembly, do enact as follows:
“ Section T. Jurisdiction is hereby conferred upon the court of claims to hear, try and determine the claim of Louis A. Cuvillier for counsel fees and expenses incurred by him in successfully defending the charge of criminal libel preferred against him before a *190magistrate of the county of New York, by the police commissioner of the city of New York, based on the sending by the said Louis A. Cuvillier, from the city of Albany, on the twenty-second day of April, nineteen hundred and twenty-three, to one of the city magistrates of the city of New York, of a telegram soliciting support to a legislative bill looking to a legislative investigation of the police department of the city of New York; and if the court finds that the said legislative bill was pending in the legislature and that the said Louis A. Cuvillier was a member of the legislature and in attendance thereat at the time said telegram was sent, and that by reason of said charge the said Louis A. Cuvillier was detained and restrained of his liberty from the ninth day of May, nineteen hundred and twenty-three, until said detention and restraint ceased on or about the tenth day of December, nineteen hundred and twenty-three by virtue of a writ of habeas corpus issued by the supreme courts and that said counsel fees and expenses were incurred by said Louis A. Cuvillier in successfully defending himself against said charge of criminal libel and in seeming said writ of habeas corpus, the amount of said counsel fees and expenses so paid by him, shall constitute a legal and valid claim against the state, and the court may award to and render judgment for the claimant against the state for such sum as shall be just and equitable, not to exceed, however, the sum of fifteen thousand dollars; provided said claim is filed with the court of claims within six months after this act shall take effect.
“ § 2. This act shall take effect immediately.”
In the first place, the question of successful defense does not seem to be referred to this court as the act itself declares that he did successfully defend himself, and the Court of Appeals in the case of Williamsburgh Savings Bank v. State (243 N. Y. 231) in the unanimous decision, uses the following language (at p. 242): “ It would seem to be pretty unreasonable to assume that the Legislature conferred upon the courts power to pass upon and give judgment for claims unless it itself had considered and approved their equitable nature.” If they had considered and approved the equitable nature of this claim as set forth in that decision, they certainly must have known and considered the facts which constituted the claim and there is no power in this court to review that decision. True, this case held later on that the question of the equity of the case may be passed upon by the court, but a plain, bald question of fact that he had successfully defended himself, in my judgment, is not reviewable by this court or any other court.
Even assuming that that question is for this court to determine, let us see what happened. The claimant was a State officer, a *191member of the Legislature, and the Legislature was in session at the time. It had before it a bill which was the subject of a telegram sent by the claimant. Sometime after, he was arrested in New York county for criminal libel by reason of the sending of said telegram. Being a State officer, he thereupon called upon the Attorney-General to defend him and the Attorney-General refused so to do. There was nothing left for the claimant to do but to employ private counsel to defend himself from this criminal charge which he did. There is a serious question in my mind whether, under the circumstances, it was not the duty of the Attorney-General to defend him, but that is beside the case because the Attorney-General refused to defend him and did not defend him. He was defended by private counsel and was discharged upon a writ of habeas corpus and nothing further was ever done in reference to said matter and the Statute of Limitations for the prosecution of the crime, if any were committed, has long since passed. I cannot imagine of any more successful defense. The enabling act does not require that he be acquitted by a verdict. It simply states that he successfully defended himself, which, in my opinion, he did.
In my opinion, after his discharge as a result of the writ of habeas corpus, it is a fair inference that the prosecution decided that even if the telegram was libelous, this State officer and Assemblyman was protected by his constitutional privilege against being called to account for what may be said by him in debate in reference to pending legislation.
In the record some point was made, although not in the opinion or in the findings of the majority, that the telegram was sent from a telegraph office on State street, outside of the Capitol building. I do not believe that that makes any difference. I think he is protected there. The Legislature was in session and the legislation about which he telegraphed was pending. (Coffin v. Coffin, 4 Mass. 1.) This seems to be the leading case upon the question in which an action for slander was brought by reason of something that a member said outside the halls of the Legislature but during the time that the Legislature was in session and in reference to pending legislation.
I dissent from the opinion and findings of the majority that the enabling act is unconstitutional. The opinion quotes article 8, section 10, of the State Constitution which reads as follows: “ No county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association, or corporation, or become directly or indirectly the owner of stock in, or bonds of, any association or corporation; *192nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes. * * * ”
The opinion cites a long list of cases in reference to that. I have no quarrel with them upon that question, but this involves the money neither of a county, city, town nor village, but does involve the money of the State of New York. The only provisions that I can find in the Constitution prohibiting the State from lending its money or credit are contained in article 8, section 9, which reads in part: “ Neither the credit nor the money of the State shall be given or loaned to or in aid of any association, corporation or private undertaking. * * * ” and in article 7, section 9, which reads in part: “No extra compensation shall be made to any contractor; * * * ”
Surely this cannot be said to come within any of those provisions. This was the defense of a State officer who perhaps had made a mistake in the performance of his duty as such State officer, and no county, city, town or village had anything to do with it and none of the lengthy dissertations upon that provision of the Constitution has any reference whatsoever or any application to the case at bar. Nobody was asking any county, city, town or village to use any of its money in this matter. It was only the money of the State of New York that was to be used, and, in my opinion, the cases cited in the prevailing opinion in this case under that section have absolutely no application whatever to the instant case.
Believing as I do that when Chief Judge Hiscock in the Williams-burgh Savings Bank case used the language that he did, it meant something, and it meant that the Legislature had knowledge of the facts in reference to the instant case.
It seems to me, therefore, that the only question left for this court to decide is whether it was a moral obligation of the State and that it is the only question that this court has any authority to review. In my opinion, in Williamsburgh Savings Bank v. State (supra), which is the last pronouncement of the Court of Appeals upon what constitutes a moral obligation, there can be no question in this case. In that case, the Court of Appeals declared the State was morally responsible for the payment of some $400,000 worth of bonds, which upon their face the State, never agreed to pay and which upon their face were not obligations of the State, simply because what was then known as the Water Commission made a mistake in the plans of the drainage district and some savings bank bought the bonds.
In the instant case, assuming but not deciding that a State officer in the performance of his duty made a mistake, how are you going *193to get away from the decision in the Williamsburgh Savings Bank case and many other cases where other State officers made a mistake? If the mistake of the Water Commission in the case of the Williamsburgh Savings Bank constituted a moral liability upon the part of the State, then there can be no distinction between the mistake of a State officer, a member of the Assembly, who is protected by the Constitution from responsibility for any written or spoken words in reference to pending legislation.
In my opinion, this claimant successfully defended himself, if that question is at issue, and his expenses constitute a moral obligation, and the Legislature of the State of New York, knowing all of the facts in reference to the matter, had a right to declare that he should recover the amount specified in the act, to wit, $15,000.