Gustafson v. Rhinow
| Decision Date | 09 January 1920 |
| Docket Number | 21,725 |
| Citation | 175 N.W. 903,144 Minn. 415 |
| Parties | A. GUSTAFSON v. WALTER F. RHINOW, AS ADJUTANT GENERAL OF THE STATE OF MINNESOTA AND OTHERS |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to restrain the members of The Soldiers Bonus Board from carrying out the provisions of Laws 1919 (Ex. Sess.) c. 49. The demurrer of the defendants to the complaint was sustained, Jelley, J. From the order sustaining the demurrer, plaintiff appealed. Affirmed.
Chief Justice Brown, Justice Holt and Justice Quinn being disqualified from sitting in this case, the Governor pursuant to Const. art. 6, § 3, assigned Judge McClenahan, of the Fifteenth judicial district, Judge Catherwood, of the Tenth judicial district, and Judge Dancer of the Eleventh judicial district, to sit in their places. The case was argued before Hallam, Dibell, McClenahan Catherwood and Dancer, JJ.
Constitution -- Soldiers' Bonus Law valid.
1. Under section 7 of article 9 of the Constitution there is no limitation of the amount of debt which may be contracted by the state "in time of war, to repel invasion or suppress insurrection." The act of September 22, 1919 (Laws 1919, Ex. Sess. c. 49), appropriating $20,000,000 for the payment of additional compensation to those serving in the forces of the United States in the war with Germany is authorized by said section and is constitutional, and the debt created by the act is a direct obligation of the state.
Constitution -- debt for a public purpose.
2. The debt created by the act is for a public purpose.
Soldiers of allied armies not beneficiaries.
3. The act does not include among its beneficiaries residents of Minnesota enlisted in the associated forces, but not enlisted in the forces of the United States.
George T. Simpson and John F. Dahl, for appellant.
Clifford L. Hilton, Attorney General, Albert F. Pratt, Montreville, J. Brown and Egbert S. Oakley, Assistant Attorneys General, for respondent.
Frederick D. McCarthy, William D. Mitchell, E. E. Watson, Orrin E. Safford and LeRoy Bowen, for the American Legion, filed a brief as amicicuriae.
1. This action is brought by a qualified person for the purpose of permanently restraining the defendants from carrying out the provisions of Laws 1919 (Ex. Sess.) p. 72, c. 49, known as the Soldiers' Bonus Law. The attorney general, appearing for the defendants, interposed a general demurrer to the complaint. The demurrer was sustained by the trial judge and plaintiff appealed.
The real question to be determined is the constitutionality of the bonus law mentioned. Section 1 of that law defines the word "soldier," as used in the act, and the situation seems to require its quotation here in full. It reads:
Section 1. Definition. -- That the word "soldier" as used in this act, shall mean any officer, soldier, sailor, marine or nurse who has been or is a part of the military or naval forces of the United States or of any nation associated with the United States in the war with Germany and who was a resident of the state of Minnesota at the time he was commissioned, enlisted, inducted, appointed or mustered into the military or naval service of the United States, and who has been or may be given an honorable or ordinary discharge or release from such service; provided, however, that the word "soldier," as used in this act, shall not be construed to mean, and shall not include any person who, at any time during the period of the war with Germany, sought so avoid service because of conscientious objections thereto, or because of alienage or who has been, at any time, guilty of fraud or violation or evasion of the Selective Service Act or of the rules or regulations of the War Department in force thereunder.
Section 2 provides that such soldier shall be entitled to receive from the state, out of a fund created by the act and called "The Soldier Bonus Fund," the sum of fifteen dollars ($15) for each month or fraction of month of military or naval service as such soldier, after April 6, 1917, and prior to the date when peace shall be agreed upon between the United States and the German government. The minimum amount so to be received is fixed at fifty dollars ($50). This section contains other provisions not here material.
Section 3 requires the soldier to file his application for the benefits of the act with the clerk of the district court of the county in which he resides, or in which he resided at the time of his induction into the service, or with the adjutant general who is required to provide forms for such application.
Section 4 creates "The Soldiers' Bonus Board," to consist of the state auditor, the state treasurer, and the adjutant general, who are the defendants in this action. It is the duty of this board, among others, to examine into the applications filed, and make any other examination necessary to establish facts and to approve or disapprove such applications.
Section 5 authorizes the bonus board to issue and sell certificates of indebtedness to make funds available for carrying out the provisions of the act, and requires the proceeds of such sales to be paid into the bonus fund. These certificates are to aggregate twenty million dollars ($20,000,000), and they, as well as the interest upon them, are to be paid out of the bonus fund. Any money remaining in that fund after such payments is to be credited to the state revenue fund.
Section 6 appropriates the sum of twenty million dollars ($20,000,000), or as much thereof as may be necessary, out of the bonus fund for carrying out the provisions of the act.
Section 7 authorizes and directs the state auditor to levy and collect, as are other state taxes, for the year 1919, and for each of the nine succeeding years, a sum not exceeding two million dollars ($2,000,000) per year for the purpose of providing funds to pay such certificates as they mature and the interest thereon, and also to levy and collect such additional sums as may be needed to pay the interest upon them. All of which shall be placed in the bonus fund.
Section 8 relates to employees, their compensation and other details of administration.
Section 9 provides for paying the widow of a deceased soldier, if she has not remarried, the amount such decedent would have received under the act had he lived.
While sections 1, 5, 6, 7, 8 and 9, of article 9 of the Constitution are claimed to be violated by this statute, or expressly to prohibit its enactment, it does not seem necessary especially to consider any of those except sections 5, 6 and 7.
Section 5 authorizes a public debt to be contracted for the purpose of defraying extraordinary expenditures, but limits the aggregate of such debts to the sum of two hundred fifty thousand dollars ($250,000), and section 6 requires that the debts so authorized shall be contracted by a loan on state bonds.
Section 7 of article 9 of the Constitution declares that "The state shall never contract any public debt, unless in time of war, to repel invasion or suppress insurrection, except in the cases and in the manner provided in the fifth and sixth sections of this article." No limitation is imposed upon the amount of debt that may be contracted for the purposes contemplated by section 7 of article 9, nor is the evidence of such a debt restricted to any particular form. It seems to have been the purpose of the organic law to liberalize the application of this section, in view of the vital character of the emergency it was designed to provide against. But such emergency is not to be considered the mere repelling of invasion or suppressing of insurrection in time of war, as we understand the appellant to contend. A public debt for a proper military purpose may be legally contracted in time of war, without reference to a state of invasion or insurrection. Conditions may exist, as recent history has shown, which call for active military operations of various kinds, though no hostile invasion be imminent or even probable. Such operations might require the borrowing of large sums of money, the amount of which would be dependent upon the existing circumstances and could not, in the nature of things, be determined or limited in advance.
Franklin v. State Board of Examiners, 23 Cal. 173, is directly in point. The constitution of California limited the state debt to $300,000 "except in case of war, to repel invasion or suppress insurrection," etc. By an act of April 27, 1863, entitled "An act for the relief of the enlisted men of the California Volunteers in the service of the United States" the legislature provided for the creation of a debt of $600,000 to be used in the payment of an additional $5 per month to enlisted men of the California Volunteers from the time of their entry into the service. The plaintiff entered service on November 25, 1861, and was discharged on July 25, 1863. The question was upon the constitutionality of the statute giving him $5 per month for the period of his service, and the statute was held authorized under the provision of the California constitution identical for practical purposes with section 7 of article 9 of our Constitution. This case is not distinguishable from the one before us. See also People v. Pacheco, 27 Cal. 175; Reis v. State, 133 Cal. 593, 65 P. 1102; State v. Stewart, 54 Mont. 504, 171 P. 755, Ann. Cas. 1918D, 1101.
We hold that the legislation in question is authorized by section 7 of article 9 of the Constitution of Minnesota, and that the debt so provided for will be the direct obligation of the state.
It is not to be inferred, however, that section 7 authorizes the incurring of a public debt, in time of war, for all purposes. The debt must be for a public purpose, as a...
To continue reading
Request your trial