Lindemuth v. Philipp

• Decision Date: 05 April 1921
• Citation: 182 N.W. 345,174 Wis. 76
• Parties: LINDEMUTH v. PHILIPP, GOVERNOR, ET AL.
• Court: Wisconsin Supreme Court

174 Wis. 76

182 N.W. 345

LINDEMUTH

v.PHILIPP, GOVERNOR, ET AL.

Supreme Court of Wisconsin.

April 5, 1921.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action in mandamus by Elles M. Lindemuth against Emanuel L. Philipp, Governor, and others, constituting the Service Recognition Board, to secure issue to plaintiff of a certificate of disbursement on the state treasurer under the Soldiers' Bonus Law, and from a judgment awarding a peremptory writ, the defendants appeal. Affirmed.

This is an action of mandamus brought by plaintiff, a soldier in the World War, to compel the defendants, constituting the Service Recognition Board, to issue to plaintiff a certificate of disbursement drawn upon the treasurer of the state of Wisconsin in the sum of $121.33, under the provisions of the so-called soldiers' bonus law (chapter 667, Laws 1919). From a judgment of the circuit court awarding a peremptory writ of mandamus, defendants bring this appeal.William J. Morgan, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for appellants.

Pickering & Rieser, of Superior, for respondent.

OWEN, J.

Plaintiff was inducted into the military service of the United States on the 15th day of July, 1918, at Gaylord, Mich., where he resided with his parents prior to the month of April, 1916. He was unmarried. His business was that of a locomotive fireman, and during the month of April, 1916, he went to Superior seeking employment. He found employment, took up his residence at Superior, has continued to reside there ever since, and has exercised all the rights of citizenship, having voted at the municipal election in that city in the spring of 1918. He registered under the United States Selective Service Act June 5, 1917, at Gaylord, Mich. He did this pursuant to a letter which he received from the registration board at that place. He supposed that was the proper place for him to register. He claims he is entitled to the so-called bonus provided by chapter 667, Laws 1919. The benefits provided by the act are made payable to each “soldier, sailor, marine, and nurse, including Red Cross nurses, who served in the armed forces of the United States during the war against Germany and Austria, and who at the time of his or her induction into the service was a resident of Wisconsin.” The defendants, constituting the Service Recognition Board created by said act deny his right thereto, because they claim he was not a resident of the state of Wisconsin, within the meaning of that act, at the time of his induction into service. They claim that the residence contemplated by the act is a military residence, and that such residence was definitely and irrevocably fixed at Gaylord, Mich., by the applicant himself when he there registered under the Selective Service Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 2044a--2044k).

Did the Legislature have in mind a distinction between a military and an ordinary actual residence? If so, was it intended that applicants for the benefits of the act should respond to the test of a military rather than an actual residence? Obviously, this distinction could not have been in mind so far as nurses are concerned, for it will not be contended that they had a military residence. As to them, the law evidently means just what it says. Every nurse who had an actual residence in the state when inducted into service, every Red Cross nurse who had an actual residence in the state when she became a part of the Red Cross organization, became entitled to the benefits of the act. As to that, we apprehend...