in re Opinion of the Justices
| Decision Date | 06 May 1912 |
| Citation | 98 N.E. 338,211 Mass. 608 |
| Parties | In re OPINION OF THE JUSTICES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The following is the order on which the opinion is based:
'Ordered that the opinion of the Justices of the Supreme Judicial Court be required by the Senate upon the following questions of law:
'And be it further ordered, that the Justices of the Supreme Judicial Court be informed that the foregoing questions are propounded with a view to legislation upon the subjects therein mentioned, and that, for their more particular information, a copy of Senate Document No. 240, being a bill accompanying a petition now pending in the Legislature and relating to the subject-matter concerning which the foregoing questions are propounded, be transmitted to the Justices.'
To the Honorable the Senate of the Commonwealth of Massachusetts:
We, the undersigned Justices of the Supreme Judicial Court, have received the questions of which a copy with the order relating thereto and the act referred to therein is hereto annexed, and respectively answer as follows:
We construe the questions submitted to us as requiring our opinion concerning the constitutionality of the act referred to in the order, which is now pending in the Senate. It is only where it will be of assistance in pending matters that our opinion can be required.
The question is primarily one of taxation. Money can be raised by taxation only for a public purpose. And the question resolves itself into the inquiry whether the proposed expenditure will be for the public good, or for the private benefit of individuals. If the former, the act will be constitutional; if the latter, it will be unconstitutional.
The act provides for the payment of gratuities of $125 each to veteran soldiers and sailors still living, who volunteered in the Civil War and served during the war in the army or navy to the credit of the common-wealth and were honorably discharged and received no bounty. Conscripts and substitutes are excluded by the express terms of the act. The gratuity is to be given for the purpose, as declared in the act, 'of promoting the spirit of loyalty and patriotism, and in recognition of the sacrifice made both for the commonwealth and for the United States by those veteran soldiers and sailors who volunteered their services in the Civil War, and for the purpose of promoting the public welfare, by giving visible evidence to this and future generations that, if danger should again threaten the nation and the call should again come for men, Massachusetts will not forget the great service of those who volunteer.' It is expressly provided that 'the gift shall not be a bounty, nor a payment in equalization of bounties, nor a payment for services rendered, nor a payment for the purpose of making the result of their contracts of enlistment more favorable to them because the contracts of other soldiers were on better terms, but a testimonial for meritorious service such as the commonwealth may rightly give, and such as her sons may honorably accept and receive.'
We are bound to take as true the purposes declared in the proposed act as those, and those only, which the Legislature has in view in its enactment. The good faith which is due from one co-ordinate branch of the government to another requires that assumption. But substance rather than form must be regarded, and if it appears that notwithstanding the affirmations and negations contained in the act it will and must operate to authorize the payment of bounties similar to those which soldiers received at the time of their enlistment, or in equalization of such bounties, then it must be pronounced unconstitutional. Mead v. Acton, 139 Mass. 341, 1 N.E. 413; Opinion of the Justices, 186 Mass. 603, 72 N.E. 95. In both of the cases referred to it was held that the object of the statute was to give such bounties and that that could not be done for the reason that bounties were given to encourage enlistments and to aid towns and cities in filling their quotas and, the war being over, the payment of such bounties would now serve no public purpose, but would be for the private benefit of individuals. This was the sense in which the word 'bounty' was used in Mead v. Acton, supra, and in the Opinion of the Justices cited above, and is the sense, we think, in which it is used in the act before us. Construing the act as it seems to us that it must and should be construed, it applies only to those cases where the soldier voluntarily enlisted in his own proper name from purely patriotic motives, without the payment of a bounty or other extraordinary pecuniary consideration, and served during the war and was honorably discharged. It cannot be said that a gratuity given, as the act declares, as 'a testimonial for meritorious service' and in recognition of services rendered and sacrifices made, and not as a bounty or in equalization of bounties, must nevertheless be regarded as a bounty or as given in equalization of bounties. Nor can it be inferred from the fact that one of the conditions is that the gratuity shall not be paid to a person who has received a bounty, that it is intended as a payment in equalization of bounties.
The question then is whether it is within the power of the Legislature to authorize the payment as 'a testimonial for meritorious service' of gratuities to persons who come within the terms of the act as we construe it, if the Legislature is of the opinion that the payment of such gratuities to such persons in recognition of the sacrifices which they made and the motives which prompted them to enlist, will tend to encourage the spirit of loyalty and patriotism and so to promote the public good by affording visible evidence that if hereafter there should be a call for men the commonwealth will not forget those who volunteer. On that question the Opinion of the Justices in 190 Mass. 611, 77 N.E. 820, seems to us to be decisive. In that case a question was submitted by the Senate whether it was within the power of the General Court to appropriate money in recognition of valuable services performed by persons who served to the credit of Massachusetts during the Civil War and were honorably discharged, if in the opinion of the General Court the public good would be served and loyalty and patriotism promoted; the money so appropriated to be used either for the payment of sums of money to such persons, or for medals or other evidences of appreciation of such services. The question was answered in the affirmative. See, also, Opinion of the Justices, 175 Mass. 599, 57 N.E. 675, 49 L. R. A. 564. These two opinions show, we think, that it is within the constitutional power of the Legislature to authorize the payments provided for in the proposed act, if in their judgment such payments will promote the public good in the manner described. It should be noted that a majority of the Justices sustained the constitutionality of the Veteran's Preference Act, so called, on grounds similar to those on which we think that the act before us must be held to be constitutional. See Opinion of the Justices, 166 Mass. 589, 595, 44 N.E. 625, 34 L. R. A. 58. A gift of money has in it an element of private benefit which does not pertain to the erection of a statue or a monument which all may see, or oven to the gift of a medal or other badge of honor which may be handed down as an object of just pride to the donee's descendants. But, as in the case of pensions, it always has been recognized as one of the ways in which meritorious service may be rewarded. The war has long been over, but there is nothing in that fact which renders the act unconstitutional, however strongly it may bear upon the expediency of the proposed legislation. We need not say that if the real object of the proposed legislation is the payment of bounties or the equalization of bounties, it is unconstitutional and money cannot be lawfully raised by taxation for that purpose.
Whether, taking all of the circumstances into account, the proposed legislation will be expedient, and whether gratuities such as it is proposed to give will tend to promote the public good by encouraging the spirit of loyalty and patriotism, is for the Legislature, acting under the responsibility of their official oaths, to say.
We answer the second question in the affirmative. The action of the Legislature covered by the first question is not subject to review by the judicial branch of the government.
JAMES M....
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