| N.D. | Jan 19, 1920
Lead Opinion
This is an action against a former soldier. He has appealed from a judgment rendered thereupon. The facts are stipulated. The sole question involved is the interpretation to be placed upon the state Moratorium Act. Laws 1918, chap. 10.
The defendant was in the active military service of our Federal government in the recent war, from June 23, 1918, until February 5, 1919, when he was honorably discharged, at Camp Dodge, Iowa. The causes of action are for moneys loaned or advanced, by the plaintiff, to the defendant, in January and February 1918, amounting to $74.
Action thereupon was instituted, in justice’s court, in May, 1919; the plaintiff also garnisheed moneys due the defendant and claimed to have been earned since his discharge from the active military service.
The trial court in support of its order filed a memorandum decision wherein it construes the Moratorium Act to apply only to persons while engaged in the active military service of our Federal government, contending that the act throughout its terms speaks alone in the present tense; that if the act was intended to protect those who had been in the military service it would have been easy for the legislature so to state. The appellant herein, who has relied in the lower courts upon the protection of the Moratorium Act, contends that the act, enacted for the protection of those who offered their services and their lives in the present great war, is available for those who were in such active military service during the entire time specified in the Moratorium Act.
In Thress v. Zemple, 42 N.D. 599" court="N.D." date_filed="1919-06-30" href="https://app.midpage.ai/document/thress-v-zemple-6738807?utm_source=webapp" opinion_id="6738807">42 N. D. 599, 9 A.L.R. 1, 174 N. W. 84, this court determined that the state Moratorium Act applied in favor of one engaged in active military service, for the period of time prescribed in the act. In that case the defendant was in the active military service from February 8, 1918 to November 25, 1919. A judgment had theretofore been rendered against him in December, 1916. A new trial had been granted in June, 1917, upon which an appeal was taken to this court. Pursuant to proceedings subsequently had in this court, the trial court, in October, 1918, entered judgment against the soldier. This court held such action erroneous and directed that no further proceedings be taken during the time the United States is engaged in the present war and for an additional period of one year, unless otherwise ordered by the trial court, pursuant to the terms of the Moratorium Act.
The question here involved is the right of a soldier, who has been in the active military service, after his discharge, to avail himself of the provisions of the Moratorium Act for and during the period of time prescribed in the act.
The Moratorium Act (§ 1.) specifically provides that no proceeding shall be had or taken for the recovery of any indebtedness against any person in the active military service of our government during the time
The Moratorium Act (§ 6) further specifically provides, with respect to taxes, that no proceeding shall be taken for the collection thereof until the expiration of the period of time mentioned in § 1. Again, pursuant to the holding of the trial court and the contention of the respondent, this section would apply only during the time that the soldier was in the active military service.
The Moratorium Act (§ 7) further provides that in any'action or proceeding sought to be taken after the close of the period provided for in § 1 of the Act, the period of military service shall be excluded in computing the statutory limitation.
Sections 6 and Y of the act have an important bearing in arriving at the legislative intent in the enactment of this legislation. Furthermore, in arriving at the legislative intent, it is highly proper to consider the purposes and objects sought to be accomplished through the Moratorium Act.
The legislation was enacted when the great war was then in course of progress. Our Federal government was then calling into active service, in the defense of our country, men from all walks of life, and requiring them necessarily to leave their families, their business, and their properties. Wisely, indeed, did the legislature of this state determine that, under these circumstances, it was not only its patriotic duty, but highly essential, to extend protection to the interests of our soldiers at home, while they were fighting for our country abroad. Properly, furthermore, the legislature evinced an intent to consider subordinate the rights of creditors of such soldiers, so far as they concerned claims against them. The legislative intent, under such circumstances, to extend a protection, not merely during the time of actual service, but for a specific period of time, is evinced throughout the act, recognizing, apparently, the evident necessity of a period of rehabilitation for the soldier even after the cessation of the active military serv
Concurrence Opinion
(concurring). The only question presented for determination in this case is one of construction of the state Moratorium Act. The question of the constitutionality of the act has in no manner been raised. Nor was it raised in Thress v. Zemple, 42 N. D. 599, 9 A.L.R. 1, 174 N. W. 85. I am frank to confess that my mind is not free from doubt in this case; but I am not prepared to say that the interpretation plaecd upon the Moratorium Act in the opinion prepared by Mr. Justice Bronson is erroneous. Such interpretation is in accord with the views expressed in Thress v. Zemple, supra.
Dissenting Opinion
I dissent on the ground that Congress had ample authority to pass all acts necessary to protect the soldiers. There is no reason for a state to supplement the acts of Congress by impairing the obligation of contracts.