State v. Holm
| Decision Date | 25 January 1918 |
| Docket Number | 20,771 |
| Citation | 166 N.W. 181,139 Minn. 267 |
| Parties | STATE v. C. H. HOLM AND ANOTHER |
| Court | Minnesota Supreme Court |
C. H Holm and Frank Holm were indicted by the grand jury of Ramsey county for the crime of interfering with and discouraging the enlistment of men in the military or naval forces of the United States or of Minnesota. They demurred to the indictment and their demurrer was overruled by Haupt, J., who at their request certified to the supreme court the questions enumerated after the second paragraph of the opinion. Affirmed.
Army and navy -- circulating seditious pamphlets -- violation of statute.
1. Circulating a pamphlet which impugns the motives of the President and Congress in entering into the war, and seeks by unfounded assertions to incite antagonism to the war, the natural tendency of which is to deter enlistments, is a violation of chapter 463 of the Laws of 1917.
Army and navy -- no conflict with Espionage law.
2. Chapter 463 of the Laws of 1917, making it a criminal offense to advocate that men should not enlist in the military forces or aid in prosecuting the war does not infringe the constitutional provision conferring upon Congress the power to raise armies, nor the constitutional provision preserving freedom of speech and of the press, and is not abrogated or superseded by the act of Congress of June 15, 1917, known as the Espionage law.
Lyndon A. Smith, Attorney General, Ambrose Tighe, Special Assistant Attorney General, and R. D. O'Brien, County Attorney, for plaintiff.
The pamphlet attacks the constitutionality of the conscription law and declares that the war was entered on through improper motives, without justification and against the popular will that it is not worthy of popular support and that refusal to register is a patriotic duty. In general the men drafted through the so-called conscription law and those entering the service otherwise are all recognized as having enlisted, as soon as they take the cath required. Sheffield v. Otis, 107 Mass. 282. As used in the conscription law, enlistment means joining the army under any of the methods provided for the purpose, whether through the procedure provided for compulsory draft or by voluntary act. It is not necessary to constitute an offense under the act, even if it applies to voluntary enlistment only, that the pamphlet should in express terms refer to voluntary enlistment as such, or should in express terms advise against it. It is sufficient if its contemplated purpose or reasonable effect is to dissuade men from so joining the army. Masses Pub. Co. v. Patten (C.C.A.) 245 F. 102.
The Minnesota act has nothing to do with the raising of armies or with rules and regulations for the government of armies raised or to be raised. It is simply a local police measure, aimed to suppress a species of seditious speech and literature which the legislature has found objectionable. If the legislature has otherwise power to forbid such talk and the circulation of such literature, the fact that it has some possible contributory effect on the Federal function of raising armies, is quite beside the question. The act does not assume to say whether armies shall be raised or how they shall be raised, or what shall be done with them if raised. What it says is that in Minnesota people shall not by word or writing discourage national or state military service. If the act is unconstitutional, it must be on some other ground than that it contravenes anything in article 1 of the Federal Constitution.
Nothing is better settled in American law than that the same act may be an offense against the dignity of several sovereignties and punishable as such by each of them. The same act may be a violation of a state statute and also a violation of a municipal ordinance on the same subject, or the violation of a state statute and also a violation of a Federal statute on the same subject. It is not admitted that the provisions of the Espionage Act are identical with those of chapter 463, Laws 1917, but if they were, the state government's legislation would not be superseded by the act of Congress. Moore v. People, 14 How. 13, 14 L.Ed. 306; State v. Oleson, 26 Minn. 507; Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717; U.S. v. Palan (C.C.) 167 F. 991; Cross v. North Carolina, 132 U.S. 131, 10 S.Ct. 47, 33 L.Ed. 287.
There are two theories about the constitutional guaranties of freedom of speech and liberty of the press. One theory is that they simply forbid laws in the nature of a censorship, which require submission of speech, in advance of utterance, or printed matter, in advence of publication, to some constituted authority for approval, but that the state, while forbidden to require previous approval, is at liberty nonetheless to enact statutes which prescribe a subsequent punishment for speech or publications inimical to the public welfare. Under this theory, a man can say or write what he pleases, but may be punished, if he says or writes something which the legislature has forbidden. The other theory is that the constitutional guaranties permit a man to say or write what he pleases, both without preliminary censorship or license, and also with impunity.
But the overwhelming weight of authority, as well as the express language of the Minnesota constitutional provision, sustains the first view. Const. (Minn.) art. 1, § 3; Rex v. St. Asaph (a) 3 Term Rep. 428; 2 Black, Comm. 1326; State v. Pioneer Press Co. 100 Minn. 173-176.
The second theory is elaborated in 70 Cent. Law Journal, 184-201.
Hermon W. Phillips, for defendants.
The act is repugnant to Const. (U.S.) art. 1, § 8, and Amend. 14, § 1; Const. (Minn.) art. 1, § 3, and art. 4, § 27.
The gist of the offense, whether directed against the nation or state, is the advocating of nonenlistment. Enlistment is, in its inception, a contract, and the act of making this contract of entering the army, is a purely voluntary act on the part of the person entering the service of the government as a soldier. Nonenlistment is not an offense; the failure to advocate enlistment is not an offense and advocating nonenlistment is not an offense.
The national government, having the sole power to raise and support armies, and to make all needful rules in relation thereto, it is beyond the power of the state to add to or take from such provisions as Congress has enacted, indeed it is beyond the power of the state to act in the matter at all whether Congress has acted or not. Houston v. Moore, 5 Wheat. 1, 21, 22, 5 L.Ed. 19; Tarble's Case, 13 Wall. 397, 20 L.Ed. 597.
The citizen of the United States has a "privilege," the exercise of which this act penalizes, and this privilege is his right to discuss publicly or privately, orally or in writing, the policies of the national government regarding enlistment, or any other plan or system it may be proposed to adopt, or the government should adopt, for the raising of its army or navy. Crandall v. Nevada, 6 Wall. 35, 36, 18 L.Ed. 745; Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Slaughter House Cases, 16 Wall. 36, 21 L.Ed. 395.
The Espionage Act was approved June 15, 1917, 40 St. 231, [See U.S. Comp. St. Temp. Supp. 453], twelve days after the commission of the offense charged by the indictment. Concerning the enlistment problem nothing is of sufficient importance for the national government to concern itself with unless the act shall be done "wilfully" and shall "obstruct," and shall be "to the injury of the service or of the United States," and this only when the government is at war. The Espionage Act supersedes, and nullifies for all purposes, the various enactments of all the states on the same subject matter, even if such enactments could otherwise be of force.
Sole and exclusive power to legislate on the matters now under consideration is vested in Congress. Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128; Peirce v. New Hampshire, 5 How. 554, 12 L.Ed. 279.
The act is not a police regulation. Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780.
Chapter 463, p. 764, of the laws of the state of Minnesota, approved April 20, 1917, provides: "It shall be unlawful from and after the passage of this act for any person to print, publish or circulate in any manner whatsoever any book, pamphlet or written or printed matter that advocates or attempts to advocate that men should not enlist in the military or naval forces of the United States or the state of Minnesota." Section 1. "It shall be unlawful for any person to teach or advocate by any written or printed matter whatsoever, or by oral speech, that the citizens of this state should not aid or assist the United States in prosecuting or carrying on war with the public enemies of the United States." Section 3.
The defendants were indicted upon the charge that they had violated this statute by circulating a pamphlet which is set forth in full in the indictment. They demurred to the indictment. The trial court overruled the demurrer, and then, at their request, certified four questions to this court which may be summarized as follows:
1. Whether the facts stated in the indictment constitute a public offense?
2. Whether the statute conflicts with section 8 of article 1 of the Federal Constitution?
3. Whether the statute conflicts with section 1 of the Fourteenth amendment to the Federal Constitution?
4. Whether the act of Congress of June 15, 1917, [1] the so-called Espionage Law supersedes, suspends or annuls the state statute?
The pamphlet is, in the main, an attack upon the act of Congress of May 18, 1917, commonly known as the Selective Draft law but it does not stop with an attack upon that law. It asserts, among other things, that "this war was...
To continue reading
Request your trial