213 P. 227 | Mont. | 1923
Lead Opinion
delivered the opinion of the court.
This is an original application for an injunction. The defendants interposed a demurrer to the complaint, and thus the case is before us on the facts appearing in the complaint. The constitutionality of Eeferendum Measure No. 25, approved March 5, 1921, found in Chapter 162 of the Laws of 1921, is assailed on several grounds. At the general election held November 7, 1922, it was approved by the people by a vote of 67,463 for and 62,100 against the measure, and was thereafter, on December 15, 1922, duly and regularly declared by the Governor a law of the state. The Act provides for adjusted compensation to each soldier who served in the military or naval forces of the United States during the war between the United States and the German Empire and its
Section 1 of the Act provides: “In order to promote the spirit of patriotism and loyalty, in testimony of the gratitude of the State of Montana, and in recognition of the splendid services of Montana men in the war between the United States and the German Empire and its allies, there shall be paid to each person who was regularly called, enlisted, drafted, inducted or commissioned and who served on active duty in the army, navy or marine corps of the United States between the sixth day of April, nineteen hundred and seventeen and the eleventh day of November, nineteen hundred eighteen for a period longer than two months; and to each person who, being a citizen of the United States at the time of entry therein, served on active duty in the naval, military or air forces of any of the governments associated with the United States during the war with the central allied powers between the sixth day of April, nineteen hundred seventeen and the eleventh day of November, nineteen hundred eighteen, for a period longer than two months; and at the time of his call, enlistment, induction, commission or service, was a bona fide resident of the state of Montana, the sum of ten dollars ($10.00) for each month or major fraction thereof that such person was in active service, not to exceed however, a total sum of two hundred dollars ($200.00) : provided, that persons who have received extra compensation from any other state, or nation other than the United States for such active service shall not be entitled to compensation under this Act unless the amount of compensation so received is less than they would be entitled to hereunder, in which event they shall receive the difference between the compensation allowable under this Act and the extra compensation already received
And by section 9 a tax levy not exceeding one-half mill on the dollar of all property subject to tax is fixed for the payment of the principal and interest of the bonds; and by section 12 the legislature is authorized to provide additional means for the payment of the principal and interest, it being provided that the Act is not exclusive as to the method of payment.
Of the several grounds of attack made against the constitutionality of the Act, in our opinion but one thereof is necessary to be considered determinative of the case: Does the Act contravene the provisions of section 1 of Article XIII of the Constitution, in that it authorizes or purports to authorize the state to give or loan its credit in aid of individuals, or make donations or grants to individuals? That section of our Constitution reads in part as follows: “Neither the state, nor any county, city, town, municipality, nor other subdivision of the state shall ever give or loan its credit in aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association or corporation.” And section 11 of
The provisions of our Constitution are mandatory and prohibitory unless by express words declared to be otherwise. (Section 29, Art. III.) In approaching a discussion of the constitutionality of the Act in question, we are governed by the axiomatic rule of constitutional law, oft repeated by this court, that the constitutionality of a legislative enactment is prima facie presumed, and every intendment in its favor will be made unless its unconstitutionality appears beyond a reasonable doubt. (Northwestern Mut. Life Ins. Co. v. Lewis and Clark County, 28 Mont. 484, 98 Am. St. Rep. 572, 72 Pac. 982; In re O’Brien, 29 Mont. 530, 1 Ann. Cas. 373, 75 Pac. 196; Spratt v. Helena P. & T. Co., 37 Mont. 60, 94 Pac. 631; State ex rel. Peyton v. Cunningham, 39 Mont. 197, 18 Ann. Cas. 705, 103 Pac. 497; State ex rel. Hay v. Alderson, 49 Mont. 387, Ann. Cas. 1916B, 39, 142 Pac. 210; State ex rel. Fenner v. Keating, 53 Mont. 371, 163 Pac. 1156; State ex rel. Cryderman v. Weinrich, 54 Mont. 390, 170 Pac. 942; State ex rel. Campbell v. Stewart, 54 Mont. 504, Ann. Cas. 1918D, 1101, 171 Pac. 755; Cas Products Co. v. Rankin, 63 Mont. 372, 207 Pac. 993.)
The inhibition of the constitutional provisions is, as indi cated, double in character, being both mandatory and prohibitory, applicable alike to the legislative assembly and the people in their legislative capacity. Irrespective of the determination of other courts, it is our sacred duty to measure the Act by the terms of our constitutional limitations, as we interpret them. “It must be evident to anyone that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility. The legislative and judicial are co-ordinate departments of the government of equal dignity; each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly while acting within the
"With the constitutional restrictions in mind, as well as the settled rules of interpretation stated, we venture a discussion of the constitutionality of the Act.
Defendants’ position is grounded with explicit candor on the proposition, clearly indicated by the preamble of the Act, that the measure is intended to effect the discharge of a moral obligation to recognize the services of Montana sons and daughters' in the World’s War by adjusting more or less" roughly the economic adversities suffered in the military establishment. This involves two propositions for consideration, vis.: (1) Does the so-called moral obligation rest on the state as a political unit? and (2) Assuming that it does, may it be constitutionally discharged by the Act? A negative answer to the first question necessarily disposes of the second. There is and can be no legal obligation to pay for such Services rendered, the war being concluded, and those affected having returned to peaceful pursuits.
Although the state of Montana, as one of the Union of states, was naturally interested in the successful outcome of the Avar, and it was her duty to do all within her power to promote the early and successful termination of the struggle; yet it was the United States which Avas at Avar within its explicitly conferred and independent prerogative, rather than
The sovereign power of the United States in the family of nations is vested exclusively in the United States govern-, ment. Sovereignty in its full sense imports the supreme, absolute, and uncontrollable power by which any independent state is governed; and, although the states of the Union were called sovereign and independent states under the Declaration of Independence, they were never in their individual capacity strictly so, because they were always, in respect to some of the higher powers of sovereignty, subject to the control of a common authority, and wore never separately recognized or known as members of the family of nations. (Cooley’s Principles of Constitutional Law, Students’ ed., p. 16.) There rests no legal duty on the state to reward those who battled for the preservation of the nation; the legal obligation runs the other way. The individual owes a duty to society to come to the defense of his country in time of war, insurrection, or invasion, whether compensated or not. No civilized nation, and few, if any, of the barbaric countries challenge this principle. The right of the sovereign power to enforce and the duty of the citizen or subject to respond to military service have been repeatedly affirmed, and, what is of greater importance, compelled by the one and performed by the other. As an inherent right for the protection of the fabric of government the sovereign power may compel military service of its subjects even without compensation; but here that question matters not, as all classes now before the court received compensation, and were provided for more bountifully than any of those in the military service of the other allies during the conduct of the war.
“Among the powers assigned to the national government, is the power ‘to raise and support armies,’ and the power ‘to provide for the government and regulation of the land and naval forces.’ The execution of these powers falls within the line of its duties; and its control over the subject is plenary and exclusive. It can determine, without question from any state authority, how the army shall be raised, whether by voluntary enlistment or forced draft, the age at which the soldier shall be received, and the period for which he shall be taken, the compensation he shall be allowed, and the service to which he shall be assigned. And it can provide the rules for the government and regulation of the forces after they are raised, define what shall constitute military offenses, and prescribe their punishment.” And, continuing: “No interference with the execution of this‘power of the national government in the formation, organization, and government of its army by any state officials could be permitted without greatly impairing the efficiency, if it did not utterly destrojq this branch of the public service.”
The rights of the citizens do not countervail the rights of the nation in the realm of national defense. As was said in In re Grimley, 137 U. S. 147, 153, 34 L. Ed. 636, 11 Sup. Ct. Rep. 54, 55: “ The government has the right to military services of all of its able-bodied citizens; and may, when emergency arises, justly exact that service from all.” And Mr. Justice Harlan, speaking for the supreme court in the ease of Jacobson v. Massachusetts, 197 U. S. 11, 29, 3 Ann. Cas. 765, 49 L. Ed. 643, 25 Sup. Ct. Rep. 358, 362 [see, also, Rose’s U. S. Notes], and referring to the citizen’s duty in time of war, said: “He may be compelled, by force if need be, against his will and without regard to his personal' wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense.”
In upholding the constitutionality of the selective service statute (Act May 18, 1917, 40 Stat. 76, 9 Fed. Stats. Ann., 2d ed., 1136 [U. S. Comp. Stats. 1918, U. S. Comp. Stats. Ann., Supp. 1919, secs. 2044a-2044-k]), Mr. Chief Justice White, speaking for the court, said: “The proclamation of the President calling the persons designated within the ages described in the statute was made, and the plaintiffs in error, who were in the class and under the statute were obliged to present themselves for registration and subject themselves to the law, failed to do so and were prosecuted under the statute for the penalties for which it provided. They all defended by denying that there had been conferred by the Constitution upon Congress the power to compel military service by a selective draft, and asserted that even if such power had been given by the Constitution to Congress the terms of the particular Act for various reasons caused it to be beyond the power and repugnant to the Constitution. * * *
“The possession of authority to enact the statute must be found in the clauses of the Constitution giving Congress power ‘to declare war; * * # to raise and support armies, * * * to make rules for the government and regulation of the land and naval forces.’ Article I, sec. 8. And of course the powers conferred by these provisions like all other powers given carry with them as provided by the Constitution the authority to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.’ (Article I, see. 8.)
“As the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would
Nor can the Act be sustained within the limitations of our Constitution upon the ground that the money authorized to be paid is for a public purpose. Clearly the payment of a bounty to those who served in the military establishment of the United States during the World’s War is not a public purpose of the state after the termination of the war, within the purview of the Constitution. The obligation rests primarily on the United States government, if anywhere, to make suitable provision and allowances to those who rendered military service, rather than upon the state as one of the units of the United States. Those who served from Montana served with the army of the United States, rather than of the state of Montana. “Public purpose” as used in our Constitution is synonymous with “governmental purposes.” (Board of Councilmen of City of Frankfort v. Commonwealth, 26 Ky. Law Rep. 957, 82 S. W. 1008; Beach v. Bradstreet, 85 Conn. 344, Ann. Cas. 1913B, 946, 82 Atl. 1030.) There being no legal obligation to pay, it amounts to a mere gratuity or donation, and the expenditure proposed, not being for a governmental purpose, cannot be considered as a public purpose within the purview of the Constitution. Decisions from a number of states have been by us considered and reviewed upholding a cash bonus under somewhat similar constitutional limitations to our own, but we cannot and do not agree to the reasoning or applicability thereof to the provisions of our Constitution. Rather we are impelled to follow and apply the very plain mandates of our constitutional limitations. Some of the cases upon the subject are the following: State ex rel. Hart v. Clausen, 113 Wash. 570, 13 A. L. R. 580, 194 Pac. 793; State ex rel. Morris v. Handlin, 38 S. D. 550, 162 N. W. 379; Veterans’ Welfare Board v. Riley (Cal.), 22 A. L. R. 1531, 208 Pac. 678; State v. Johnson, 170 Wis. 251,
In the case of Bush v. Board of Supervisors of Orange County, supra, which was a taxpayers’ action to restrain the board of supervisors from proceeding to levy a tax upon one of the towns of Orange county in order to pay the claim of certain persons or their heirs who were drafted into the military service of the United States during the Civil War, the court said: “Every government must possess the inherent right or power to call upon its citizens to perform military duty in time of war. The exercise of this power involves the right of self-preservation, and that right in the government imposes upon the citizen a corresponding duty to render such services whenever the emergency arises, and it is demanded of him. The government must necessarily be the judge of the necessity for requiring the performance of this duty. * * * 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
And in People v. Westchester County National Bank, 231 N. Y. 465, 15 A. L. R. 1344, 132 N. E. 241, the New York court of appeals held that the issuance by the state of bonds to raise a fund with which to pay a bonus to those who served as soldiers under the federal government was prohibited by a constitutional provision to the effect that the credit of the state should not in any manner be given in aid of an individual. The view expressed by the majority opinion was that the bonus is a gift “to or in aid of those who had served in the war within the meaning of the constitutional provisions of New York.” Mr. Justice Andrews, speaking for the majority of the court, in a very lengthy and elaborate opinion, after reviewing many decisions, said in explanation of the court’s attitude (to which we subscribe in the main) :
It being clear that beneficiaries under the Act have no legal claim for services rendered, will the so-called moral obligation to appreciate and express appreciation by a money payment suffice to justify the legislation? The answer must be in the negative. However pressing or persuading the reasons for fulfillment of moral obligations—and a great number of our citizens have recorded their conviction that the instant case presents a moral obligation of the most primary character —the fulfillment of such obligation here involves a purely voluntary grant, in short, a gift or gratuity, to one class of individuals. And it is well-settled law that the public money cannot be used to pay a gratuity to an individual when he is without legal claim to the money, and -when it cannot fairly be said that the public good will be served bv such payment. (26 R. C. L., p. 63.) Desirable though it might be to sanction recognition and enforcement of these moral obligations, our jurisprudence has not attained that end. It knows only the obligation whose discharge may be compelled by legal action.
In our opinion that which may be compelled by authority of law contains no element of gratuity; that which may not be thus realized comes, if at all, as a gratuity. There is no middle class or species, and, when the state is required to lend its credit in behalf of that gratuity, as here, the Constitution is violated. (People v. Westchester County Nat. Bank, supra.) The language is plain: “Neither the state, nor any county ® * * of the state shall ever give or loan its credit in aid of, or make any donation or grant, by subsidy or otherwise, to any individual. * * * ”
The meaning of the section is as clear and comprehensive as language can be. Nor is its force cut down by historical association with the effort to curb railroad subsidies, for these are specially prohibited by section 38 of the Bill of Rights (Article V of the Constitution).
This result is not disturbed by calling the payment “adjusted compensation” on the assumption that it rectifies economic disparities between the wartime pay of the veteran and his civilian coworker mobilized behind the battle lines. It is, of course, perfectly patent that the $10 per month fixed by the Act, with maximum of $200 for service of any length, will hardly begin, when added to the monthly pay and allowances of an overseas private, say $33, to cut down or narrow the disparity in favor of the $300 per month shipworker. The government might legally, and it is generally, conceded now should, have impressed civilian workers on the same basis as soldiers, but the failure so to do serves only as argument when equalization depends wholly on the voluntary action of the government. The wrong then perpetrated furnishes no right
The former decisions of this court cited by counsel do not support their contention respecting the constitutionality of the Act in question. In State ex rel. Casteel v. State Board of Examiners, 56 Mont. 621, 190 Pac. 1117, the Act under consideration was purely “for the assistance, aid and encouragement of soldiers of the United States, going to and returning from the war in which the United States is fighting Germany and her allies.” So, too, the case of State ex rel. Campbell v. Stewart, 54 Mont. 504, Ann. Cas. 1918D, 1101, 171 Pac. 755, dealt with an appropriation of money “to be expended by the Montana council of defense in aiding and assisting the United States in the carrying on and prosecuting of the war now existing between the United States and the German and Austrian Empires,” and Mr. Justice Sanner, speaking for this court, well said: “The purpose of the Act, as apparent on its face and as emphasized in section 14, is the most public one that could well be imagined. (City of Lowell v. Oliver, 8 Allen (Mass.), 247; Freeland v. Hastings, 10 Allen (Mass.), 570; Franklin v. State Board of Examiners, 23 Cal. 173; People v. Pacheco, 27 Cal. 175.) The United States is at war, and to assist the United States in war is expressly recognized by the Constitution as a proper and probable occasion for the use of state funds. (Const., Art. XII, sec. 12.) Moreover, this state, as one of the United States, is at war; when aiding the United States, this state but defends itself, and thus exercises the highest attribute, as it observes the most solemn duty, of sovereignty. That in pursuing this public purpose the state, through its legislature, may adopt or prescribe any mode or means reasonably adapted to accomplish such purpose is too well settled for debate. And if it be true that an ‘army
This language of Justice Sanner clearly shows that the Act under consideration was a war measure, and we indorse all said by him above quoted, except that the state as one of the United States was at war. This language was employed by the learned Justice merely as a figure of speech; but, to be plain and consistent with the views herein expressed, it would have been more accurate to have said: “The United States’ as a sovereign power is at war, the state of Montana being merely one of its several units, and naturally vitally interested in the outcome.”
In In re Pomeroy’s Estate, 51 Mont. 119, 151 Pac 333, plaintiff’s contention is in no manner sustained. The state legislature by Act of 1913 (Chapter 132, Laws 1913) passed an enabling Act whereby as to escheated property or property alleged to have escheated, paid into the state treasury of the state of Montana, a rightful' heir might, within the period limited in the Act, recover from the state the amount to which he was entitled as an heir; and the court simply held in the above case that, wherever there is a right such as that existing in the heir to property alleged to have been escheated, the legislature is not prohibited by the Constitution from providing a remedy. The state, under the facts, was said to have held the property as an involuntary trustee for the benefit of the heir. There the right existed independent of the statute, which merely afforded a remedy.
Be it in accord with the elementary principles of justice or opposed to more or less accepted notions of public gratitude, the Constitution must prevail. We feel the more secure in our determination when we remember that the beneficiaries of the Act themselves recorded one of the most whole-hearted examples of obedience to constitutional government which the history of the United States affords when, in 1917 and 1918, they went forth strong and true to their country’s call. By the magnificent and enduring qualities of their deeds and service, they brought imperishable honor to the American arms in the trenches and forests of France, on the fields of Flanders, on the summits of the Alps, in the snowy wastes of the Murmansk coast, on the banks of Lake Baikal, along the dreary stretches of the Amur river in Siberia, and on the high seas. For this they now have the everlasting love and gratitude of their own countrymen and of their allies in arms, that which is eternal compensation.
Were the members of this court to sanction a violation of the fundamental law, no matter how overwhelming the public sentiment therefor, or however justifiable on nonlegal grounds, it would expect first and severe rebuke from those wlio but lately exemplified their submission and devotion to constitutional authority at the risk of life itself.
It must be plain that the Act in question, if upheld by this court as constitutional, would afford but little and only tern
Let the writ issue.
Rehearing
On Motions foe Rehearing.
delivered the opinion of the court.
By the term “legal claim” as used in the opinion is meant such as is warranted in the law, or previously authorized by law. Compensation or the payment of any claim against the state not previously authorized by law is prohibited in express terms of our Constitution. (Sec. 29 of Article Y.)
Counsel insist that the decision herein is contrary to the views heretofore expressed by this court in the cases of State ex rel. Campbell v. Stewart, 54 Mont. 504, Ann. Cas. 1918D, 1101, 171 Pac. 755, and State ex rel. Casteel v. State Board of Examiners, 56 Mont. 621, 190 Pac. 1117; but this is not so, both of the Acts under consideration in those cases having been in aid of the United States in the successful prosecution of the war against Germany and her allies. But it is' argued that the Act under consideration in the Casteel Case was approved March 4, 1919, long after the armistice (November 11, 1918), and that therefore it is in the same category as referendum measure No. 25 herein considered. This contention would be meritorious had the war been ended on March 4, 1919. The
Tbe motions for a rehearing are denied.
