| Wis. | Jan 7, 1919
Lead Opinion
Assuming, without deciding, that the defendant was entitled to immunity under the terms of ch. 409, Laws 1917, we are led-to the immediate consideration of the question whether or not said chapter is a valid enact
“All persons, residents of this state, now in the military service of the United States or of this state, and all those who may hereafter enlist, be appointed, or drafted into the military service of this state or of the United States, for the purpose of the present war, shall, during such service, be exempt from all civil process, and in all civil cases now pending against any person in such service, the proceeding shall be continued and stayed until the discharge of such person from such service,” etc.
Sub. 2 requires the court, whenever it appears that a suit has been commenced against a person while in the military service, to dismiss such suit, and when it shall appear in any case now pending that the principal defendant is in such service, it shall be the duty of the court to stay the proceedings. Sub. 3 prescribes the manner in which proof of the fact that a person is in the military service of the United States may be established. Sub. 4 contains certain exceptions applying to executors, administrators, trustees, and foreclosures, where the person in the military service is not the main defendant. Sub. S provides that the time during which any person is exempt from the service of civil process under the provisions of the act shall not be taken as any part of the time limited by law for the commencement of a civil action, etc. ; ! : ;
In behalf of the state it is claimed that ch. 409 is invalid (1) because it is an exercise of war power, which is exclusively vested in the United States; (2) because it violates the provisions of the Fourteenth amendment to the constitution of the United States, in that it is discriminatory as between residents of this state and residents of other 'states; (3) that said enactment is in conflict with the act of Congress known as the soldiers’ and sailors’ civil relief act and is therefore void and unconstitutional.
The contention that the enactment of ch. 409 is an exercise of the so-called war power by the legislature of the.state
The provisions of ch. 409 are not in conflict with the terms of the Fourteenth amendment as claimed; neither do its provisions offend against sec. 2, art. IV, of the federal constitution. The privileges of the act not being denied to the citizens of other states by the express terms of the act, it must be held to apply to the citizens of other states of the Union. The citizens of other states are entitled under the federal constitution to enjoy the same privileges and immunities as are conferred upon citizens of this state. Therefore, all the privileges and immunities conferred by the act upon the citizens of this state are conferred upon the citizens of other states, in the absence of language expressly limiting the act to citizens of this state. Blake v. McClung, 172 U.S. 239" court="SCOTUS" date_filed="1898-12-12" href="https://app.midpage.ai/document/blake-v-mcclung-94954?utm_source=webapp" opinion_id="94954">172 U. S. 239, 19 Sup. Ct. 165; Estate of Johnson, 139 Cal. 532" court="Cal." date_filed="1903-07-10" href="https://app.midpage.ai/document/estate-of-johnson-3309515?utm_source=webapp" opinion_id="3309515">139 Cal. 532, 538, 73 Pac. 424; Slaughter-House Cases, 16 Wall. 36" court="SCOTUS" date_filed="1873-04-14" href="https://app.midpage.ai/document/butchers-benevolent-assn-v-crescent-city-live-stock-landing--slaughter-house-co-88661?utm_source=webapp" opinion_id="88661">16 Wall. 36, 77.
2. It is claimed that ch. 409 is void because it is in conflict with the soldiers’ and sailors’ civil relief act, passed by Congress March 8, 1918 (40 U. S. Stats, at Large, ch. 20). Sub. (1), sec. 101, of that act defines what is meant by the term “persons in military service;” sub. (2), what the period of military service is; sub. (3), to what the term “person” refers; sub. (4), what courts are included; sub. (5), what is meant by the term “termination of the war.” Sec. 102 provides that the act shall apply to the United States, the several states and territories, the District of Columbia, and all
Our dual system of government has given rise to many difficult and perplexing questions. No' boundary separating the field of federal from the field of state control can be marked out, for the reason that in many cases they overlap. The right to exercise certain powers has been conferred exclusively upon the United States. Sturges v. Crowninshield, 4 Wheat. 122" court="SCOTUS" date_filed="1819-02-22" href="https://app.midpage.ai/document/bank-of-columbia-v-okely-85267?utm_source=webapp" opinion_id="85267">4 Wheat. 122, 193. In some instances the states are deprived of the right to exercise certain powers by reason of
In State v. C., M. & St. P. R. Co. 136 Wis. 407" court="Wis." date_filed="1908-09-29" href="https://app.midpage.ai/document/state-v-chicago-milwaukee--st-paul-railway-co-8189267?utm_source=webapp" opinion_id="8189267">136 Wis. 407, 117 N. W. 686, having under consideration state a.nd federal regulation affecting interstate commerce, this court adopted the classification, laid down in Covington & C. B. Co. v. Kentucky, 154 U.S. 204" court="SCOTUS" date_filed="1894-05-26" href="https://app.midpage.ai/document/covington--cincinnati-bridge-co-v-kentucky-93940?utm_source=webapp" opinion_id="93940">154 U. S. 204, 14 Sup. Ct. 1087, where the field is divided into' three classes of legislative acts : First, where the states have plenary power, and Congress has no right to interfere. Second, cases of concurrent jurisdiction, where the states may act in the absence of Congressional action. Third, cases where the action of Congress is exclusive and in which the states have no power whether or not Congress has acted. This classification may not be applied with exactness in all cases.
There can be no doubt that Congress, in the exercise of the powers conferred upon it, may prescribe the conditions under which persons in the military service of the United
We think it must be held that the laws clearly conflict. New York Cent. R. Co. v. Winfield, 244 U.S. 147" court="SCOTUS" date_filed="1916-03-01" href="https://app.midpage.ai/document/new-york-central-railroad-company-v-winfield-98950?utm_source=webapp" opinion_id="98950">244 U. S. 147, 37 Sup. Ct. 546. In the first place, they speak upon identically the same subject matter; that is, the exemption of persons in the military service of the United States from the process of civil courts. The soldiers’ and sailors’ civil relief act prescribes .what that exemption shall be in the courts of the United States and of the states, including the state of Wisconsin. Ch. 409 prescribes what that exemption shall be within the state of Wisconsin, and it prescribes a different exemption than that prescribed by the soldiers’ and sailors’ civil relief act.
It is argued that, because ch. 409 grants a more generous immunity or greater exemption than that granted by the soldiers’ and sailors’ civil relief act, there is no conflict within the principles laid down in Savage v. Jones, 225 U.S. 501" court="SCOTUS" date_filed="1912-06-07" href="https://app.midpage.ai/document/savage-v-jones-97675?utm_source=webapp" opinion_id="97675">225 U. S. 501, 32 Sup. Ct. 715, and in McDermott v. Wisconsin, 228 U.S. 115" court="SCOTUS" date_filed="1913-04-07" href="https://app.midpage.ai/document/mcdermott-v-wisconsin-97835?utm_source=webapp" opinion_id="97835">228 U. S. 115, 33 Sup. Ct. 431. Viewed from the standpoint of the person in the military service of the United States there may be some force to this argument, but he is not the
There is another principle applicable to the situation under consideration here, and that is that the regulation in respect to the service of civil process upon persons in the military service of the United States is of a purely national character. Sturges v. Crowninshield, supra. The orderly administration of the affairs of the army and navy requires that such regulations should be uniform. The military and administrative officers of the United States ought not to be required to look into' the statute books of forty-eight separate states to determine what the privileges and immunities of United States soldiers are. Congress having, in the exercise of its constitutional powers, provided for the exemption of persons in the' military service of the United States from process of civil courts of Wisconsin, it supersedes any like provision made by the state. Selective Draft Law Cases, 245 U.S. 366" court="SCOTUS" date_filed="1918-01-07" href="https://app.midpage.ai/document/selective-draft-law-cases-99053?utm_source=webapp" opinion_id="99053">245 U. S. 366, 383, 38 Sup. Ct. 159.
It must be held that the laws referred to clearly conflict; that the soldiers’ and sailors’ civil relief act is the supreme
“In any action or proceeding commenced in any court against a person in military service, before, or during the period of such service, . . . the court may, in its discretion, on its own motion, or on application to it by such person ...
“(1) Stay the execution of any judgment or order entered against such person, as provided in this act, and -
“(2) . .
Upon filing the remittitur in the trial court .the defendant, if he be so advised, may apply to the court under the provisions of that section for a stay of proceedings.
By the Court. — Judgment affirmed.
Dissenting Opinion
The following opinion was filed February 8, 1919:
(dissenting). Sec. 4232a, Stats., responds to a plain sense of justice and voices a humane public policy. It was enacted out of consideration for those who were about to leave their homes, their families, and their business affairs to fulfil the highest duties of citizenship. ■ ' It was considered unjust to leave those who were called by the government on a mission of service and sacrifice in the interest of their country and of humanity to the mercy of inconsiderate creditors, arid it' was to save them from default judgments, foreclosure proceedings, forced sales, and their families from unconscionable evictions, that the law was passed. Moreover, in passing the law the state was not without a selfish interest. ' We are in a better position now than at the
The subject is one over which the state has plenary power as an incident of sovereignty, except in SO' far .as it may have been delegated to Congress. The power may be exercised by the legislature, except so far as it is limited by.'constitutional provisions. There are none such, except thos§, relating to special or class legislation. The legislature may suspend the right of civil process against any class of its citizens in the interests of justice and in promotion of the general welfare where the classification is germane to the purposes of the legislation. There is no suggestion that those in- the military service of the United States do not constitute sudh a class. I apprehend, also, that those riot in the military service of the United States, but who. have left their' homes
“[11] To declare War, . . .
“[12] To raise and support Armies, . . .
“[13] To provide and maintain a Navy;
“[14] To make Rules for the Government and Regulation of the land and naval Forces;
“[15] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
“[16] To- provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
“[18] To make all Laws which shall'be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
It will be conceded at once that these provisions do not amount to an express delegation of the power we are considering. At most it amounts to no more than an implied delegation of power to an extent necessary to carry into
But it is held in the majority opinion that the two laws under consideration are in conflict. If this be true, of course the state law must yield. But I confess my inability to discover a conflict. Laws are in conflict when, as pointed out in Southern R. Co. v. Reid, 222 U.S. 424" court="SCOTUS" date_filed="1912-01-09" href="https://app.midpage.ai/document/southern-railway-co-v-reid-4023639?utm_source=webapp" opinion_id="4023639">222 U. S. 424, 32 Sup. Ct. 140, if one obey the state law he incurs the penalties of the federal law, and if he obey the federal law he incurs the penal
“A state statute enacted in execution of a reserved power of the state is not to be regarded as inconsistent with an act of Congress passed in the execution of a clear power under the federal constitution unless the repugnance or conflict is so direct and positive that the two' acts cannot be reconciled or stand together.” Missouri, K. & T. R. Co. v. Haber, 169 U.S. 613" court="SCOTUS" date_filed="1898-03-14" href="https://app.midpage.ai/document/missouri-kansas--texas-railway-co-v-haber-94840?utm_source=webapp" opinion_id="94840">169 U. S. 613, 18 Sup. Ct. 488.
Such is not the case here. The enforcement of the state statute in no- manner interferes with the accomplishment of the purposes sought by the federal legislation. Both may be enforced, and the accomplishment of the purposes sought by both the federal and state government secured. They may stand side by side, and the presence of one in no- manner detracts from the force of the other.
The majority opinion of the court, as I understand it, proceeds on the theory that the federal enactment is to be construed as covering the subject, thereby excluding any further enactments on the part of the states with reference thereto. This construction obtains where full power to- regulate the subject has been delegated to Congress, such as the power to regulate interstate commerce, and where the federal enactment affirmatively discloses the intent on the part of Congress that its regulation shall be exclusive. But even where full power has been delegated to Congress such intent will not be imputed to the Congressional act unless it clearly appears therefrom. As said in Reid v. Colorado, 187 U.S. 137" court="SCOTUS" date_filed="1902-10-01" href="https://app.midpage.ai/document/reid-v-colorado-95716?utm_source=webapp" opinion_id="95716">187 U. S. 137, 23 Sup. Ct. 92:
“It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifested.”
There is nothing about the phraseology of the federal soldiers’ and sailors’ civil relief act to- indicate such an intent. Neither can it be inferred from the purposes to be accomplished by its enactment. Plainly it was the purpose
Where there is a conflict between a state statute and a federal enactment a state court should not hesitate to acknowledge the supremacy of the federal act. The power of a state to enact legislation which it deems beneficial to its own interests, however, should not be lightly yielded. I feel that the decision in this case is a voluntary and unnecessary surrender of a sovereign power. I cannot join in the capitulation.