Horst v. Guy

• Decision Date: 04 June 1974
• Docket Number: No. 9008,9008
• Parties: Elmer L. HORST, on behalf of himself and all others similarly situated, Plaintiff/Appellee, v. Hon. William L. GUY, as Governor of the State of North Dakota and as Commander-in-Chief of the Military and Naval Forces of the State of North Dakota; and Major General LaClair A. Melhouse, as the Adjutant General in and for the State of North Dakota, Defendants/Appellants. Civ.
• Court: North Dakota Supreme Court

Page 153

219 N.W.2d 153

Elmer L. HORST, on behalf of himself and all others

similarly situated, Plaintiff/Appellee, v. Hon. William L. GUY, as Governor of the State of North

Dakota and as Commander-in-Chief of the Military and Naval

Forces of the State of North Dakota; and Major General

LaClair A. Melhouse, as the Adjutant General in and for the

State of North Dakota, Defendants/Appellants.

Civ. No. 9008.

Supreme Court of North Dakota.

June 4, 1974.

Syllabus by the Court

1. The Vietnam Conflict Veterans' Adjusted Compensation Act (Chapter 37--25, N.D.C.C.) does not provide for the payment of adjusted compensation (bonus) to a person while he is on continuous active duty in the armed forces of the United States.

2. It is held, for reasons stated in the opinion, that under subdivisions a, b, c and d of subsection 8 of Section 37--25--02, N.D.C.C., 'no person shall be considered a resident of North Dakota for the purpose of receiving any benefits under this act (Vietnam Conflict Veterans' Adjusted Compensation Act) if he was on continuous active duty in the armed forces (of the United States) for a period of fifteen years or more, immediately prior to August 5, 1964, and has not established actual abode in North Dakota prior to the effective date of this chapter (March 29, 1971).'

Paul M. Sand, Asst. Atty. Gen., Bismarck, for defendants/appellants.

Maurice R. Hunke, Dickinson, for plaintiff/appellee.

TEIGEN, Judge.

This is the sequel to Horst v. Guy, 211 N.W.2d 723 (N.D.1973), and involves the construction and validity of the Vietnam Conflict Veterans' Adjusted Compensation Act (Chapter 37--25, N.D.C.C.). This is an action which Horst, on behalf of himself and all others similarly situated, has brought against the Governor and the Adjutant General of the State of North Dakota for the purpose of securing payment of adjusted compensation (veteran's bonus) under the Act. In our former opinion we held: (1) that the action was maintainable as a class action; (2) that Section 37--25--02(8)(d), N.D.C.C., limiting payments of adjusted compensation, is constitutional and is not violative of Sections 11 and 20 of the North Dakota Constitution or Section 1 of the Fourteenth Amendment to the United States Constitution; and (3) that the trial court's order allowing the payment of attorney fees from adjusted compensation, payable to those persons who may become entitled thereto as a result of this action, was proper. However, we remanded the case to the district court for the determination of two issues left undecided by that court in its first opinion. These issues have now been resolved by that court on remand and it is from this ruling that this appeal is taken.

One issue involves the validity of a regulation promulgated by the adjutant general, and the other involves interpretation of the statute.

As background for the discussion to follow, we think it well to quote from the salient parts of the Act. Section 37--25--01, N.D.C.C., provides:

'This chapter shall be known and may be cited as the 'Vietnam Conflict Veterans' Adjusted Compensation Act'.'

And Section 37--25--02, N.D.C.C., provides, in part:

'37--25--02. Definitions.--As used in this chapter:

'1. 'Period of service' means the period of time beginning August 5, 1964, and ending on a date prescribed by the President or the Congress for the cessation of hostilities in Vietnam.

'2. 'Veteran' means a man or woman who served honorably and faithfully for more than sixty days on active duty in the armed forces of the United States, at any time during the period of service, and who was a resident of the state of North Dakota at the time of entering upon such duty and for at least six months prior thereto, and who has not received bonus or adjusted compensation from another state for the period of service.

'4. 'Honorable and faithful service' shall be such service as is evidenced by:

'a. An honorable discharge, or its equivalent;

'b. In the case of an officer, a certificate of service; and

'c. In the case of a veteran who has not been discharged, a certificate from appropriate service authority that his service was honorable and faithful.

'7. 'Adjutant general' means the adjutant general of the state of North Dakota.

'8. 'Resident' means a person who has acquired a status as follows:

'a. Was born in and lived in the state of North Dakota until entrance into the armed forces of the United States;

'b. Was born in, but was temporarily living outside the state of North Dakota, not having abandoned residence therein prior to entrance into the armed forces of the United States; or

'c. Was born elsewhere but had resided within the state of North Dakota for at least six months prior to entrance into military service and had prior to or during such six-month period:

'(1) Registered for voting, or voted in the state of North Dakota;

'(2) Being an unemancipated minor during such period of residence, had lived with a parent or person standing in loco parentis who had acquired a residence as set forth in this section; and

'(3) If not registered for voting in the state of North Dakota, was not registered for voting in another state, and had resided in the state of North Dakota for at least six months prior to entrance into the armed forces of the United States.

'd. In all other cases where the veteran was a bona fide resident of the state of North Dakota at the time of entering the armed forces as determined in accordance with the rules and regulations of the adjutant general and the laws of the state of North Dakota. No person shall be considered a resident of North Dakota for the purpose of receiving any benefits under this act if he was on continuous active duty in the armed forces for a period of fifteen years or more, immediately prior to August 5, 1964, and has not established actual abode in North Dakota prior to the effective date of this chapter.'

Section 37--25--08, N.D.C.C., provides:

'37--25--08. Duty of adjutant general--Finality of decisions--Questions of residence subject to court review.--For the purpose of carrying into effect the provisions of this chapter, the adjutant general is charged with the administration thereof, and for that purpose he shall prepare and distribute application blanks, investigate all claims and applications filed with him, and if satisfied of the proof of such claim and application, approve the same and direct payment thereof, and shall make any regulation necessary to the efficient administration of the provisions of this chapter. The books, papers, and records, together with the filing cases and equipment procured and used in the administration of this chapter, shall become a part of the permanent records of the office of the adjutant general. The adjutant general shall have authority to determine any claim in any case where a doubt arises as to the eligibility of an applicant to receive payment, and the decision of the adjutant general in such case shall be final, except on questions of residence which shall be subject to review by a court of competent jurisdiction. The adjutant general shall authorize payment for prisoners of war upon their release and return.'

The rule and regulation in issue adopted by the adjutant general provides:

'No person shall be considered a resident of North Dakota for the purpose of receiving any benefits under this Act if he was on continuous active duty in the armed forces for a period of fifteen years or more, immediately prior to August 5, 1964, and has not established actual abode in North Dakota prior to the effective date of this Act, March 29, 1971. The Attorney General's opinion states that the veteran must have been completely separated from continuous active duty. He then must have returned to North Dakota and re-established his home in the State of North Dakota prior to the effective date of this Act, March 29, 1971.'

It is agreed that the office of the adjutant general is an administrative agency under our law, and that the rules and regulations were promulgated in compliance with the requirements of the statutes.

The plaintiff Horst has served in the Navy for more than twenty-five years. He was a North Dakota resident when he entered the Navy and returned to North Dakota as a Navy recruiter on July 22, 1969, and continues in that capacity. Upon return to North Dakota, he rented living quarters, first an apartment and then a house, in which he resides with his family. He has voted in North Dakota in recent years and it appears that he has not established residence in any other state. He is a career Navy man.

Horst was denied adjusted compensation under the Act, by the adjutant general, on two grounds: (1) that he is not separated from the service; and (2) that under subsection 8(d), which provides that '(n)o person shall be considered a resident of North Dakota for the purpose of receiving any benefits funder this act if he was on continuous active duty in the armed forces for a period of fifteen years or more, immediately prior to August 5, 1964, and has not established actual abode in North Dakota prior to the effective date of this chapter,' he is not a resident within the terms of the adjusted compensation Act.

The two issues for determination here are whether the regulation issued by the adjutant general requiring that veterans be separated from service is valid, and whether that portion of Section 37--25--02(8)(d), N.D.C.C., quoted above, is applicable to define a resident under subdivisions a, b and c of said subsection 8 of Section 37--25--02, N.D.C.C.

The trial court held, as to Issue 1, that the regulation issued by the adjutant general was unreasonable, arbitrary and beyond the scope of the legislation, and was, therefore, void; and that, as to Issue 2, it was the opinion of the trial court that the fifteen-year limitation, referred to in Section 37--25--02(8)(d), N.D.C.C., is not applicable to subdivisions a, b and c of that section. It therefore entered a...