State ex rel. Morris v. Handlin

• Decision Date: 12 April 1917
• Docket Number: 4178
• Citation: 38 S.D. 550,162 N.W. 379
• Parties: STATE OF SOUTH DAKOTA ex rel. MORRIS, Adjutant General, Plaintiff, v. HANDLIN, State Auditor, Defendant.
• Court: South Dakota Supreme Court

38 S.D. 550

162 N.W. 379

STATE OF SOUTH DAKOTA ex rel. MORRIS, Adjutant General, Plaintiff,

v.

HANDLIN, State Auditor, Defendant. South Dakota Supreme Court Original Proceedings #4178-Writ of Mandamus Issued Gaffy & Stephens, Horner, Martens & Goldsmith, John Sutherland, Sterling & Clark, Morris & Moriarty Attorneys for Plaintiff. Clarence C. Caldwell, Attorney General Attorney for the Defendant. Opinion filed April 12, 1917

McCOY, J.

Prior to the 21st day of June, 1916, there had been organized in this state a militia regiment known and designated as the Fourth South Dakota Infantry. On the 21st day of June, 1916, the Governor of this state, acting upon instructions from the President of the United States calling out the state militia for the purpose of protecting territory of the United States from threatened invasion and aggression on the part of Mexico, promulgated his order requiring the mobilization of the members of said Fourth South Dakota Infantry. Immediately thereafter said regiment was mobilized at Redfield, this state, where it remained until July 30, 1916, at which time it was transported to San Benito, Tex., where it remained in active service until the 3d day of March, 1917, at which time said regiment was mustered out and relieved from service of the United States, and permitted to return to the state of South Dakota.

The 1917 session of the Legislature passed an act (chapter 51, Laws 1917) providing that every enlisted man of the said Fourth South Dakota Infantry shall be paid at the time of his return from federal service the sum of $75; and which act appropriates from the general funds of the state $75,000, or so much thereof as may be necessary to make said payment, for the "purpose of encouraging military training, the payment for services of the members of said regiment for federal services upon the Mexican border, and for continued service in the National Guard Reserve of the United States"; and which act also provided that the state auditor should issue his warrant to the adjutant general for such amount as might be shown by pay rolls duly signed by said enlisted men. Thereafter the adjutant general prepared and presented pay rolls signed by the said members of said regiment entitled to receive said payment under the provisions of said, act to the state auditor who, considering that there might be some question as to the constitutionality of said act, refused to issue his warrant to the adjutant general as provided by said act. No question was made as to the correctness of said pay rolls or as to the persons entitled to receive payment under said act. This original proceeding in mandamus was thereupon instituted by the state of South Dakota, upon the relation of the adjutant general, against the state auditor, to test the validity of said legislative enactment.

The sole and only question for determination is the constitutionality of the said appropriation. It is the contention of the auditor that the enactment is void in that it conflicts with each of the following sections of our state Constitution: Section 9, art. 11; section 3, art. 12; and section 1, art 13, Section 9, art. 11, provides that:

"No indebtedness shall be incurred or money expended by the state and no warrant shall be drawn, upon the state treasurer except in pursuance of an appropriation for the specific purpose first made." The specific contention is that at the time the services were performed and the obligation to pay therefor was incurred no appropriation for the purpose had been made. If section 9, art. was the only section in the Constitution relating to public indebtedness and the incurring and payment thereof, then there might be some possible merit in the contention. We are of the view, however, that all three of the said sections of the Constitution relate to the subject of the incurring and payment of public indebtedness, and that these sections of the Constitution must be construed and read in the light of each other. Section 3, art. 12, provides that the Legislature shall never grant any extra compensation to any public officer, employee, agent, or contractor after the services shall have been rendered, or the contract entered into, nor authorize the payment of any claims created against the state, under any agreement or contract made without express authority of law; provided, however, that the Legislature may make appropriations for expenditures incurred in suppressing insurrection or repelling invasion. Section 1, art. 13, provides that neither the state, nor any county, township, or municipality shall loan or give its creditor make donations to or in aid of any individual, association, or corporation, nor pay or become responsible for the debt or liability of any individual, association, or corporation; provided, that the state may assume or pay such debt or liability incurred in time of war for the defense of the state. As will be observed, the concluding proviso of section 3, art. 12, as well as the concluding proviso of section 1, art. 13, contemplates and authorizes appropriations after the rendition of the services and after the incurring of the indebtedness. Insurrection, invasion, and time of war are conditions that may come upon us very quickly, and it would be extremely impractical and cumbersome, in many cases, to call together the Legislature in order to first make an appropriation for expenses that might be incurred under such conditions. We are therefore of the opinion that the builders of our Constitution had in view circumstances similar to those that now exist in this case when they created these concluding provisos to these two sections of the Constitution permitting appropriations after the incurring of the indebtedness. It will be observed, also, that section 3, art. 12, provides that payment shall not he made of any claim under any contract or agreement, unless such contract or agreement was expressly authorized by law. The act in question is itself law expressly authorizing this appropriation.

It is contended on the part of the state auditor that inasmuch as the Fourth South Dakota Infantry was on the 30th day of July, 1916, drafted into the service of the United States under the provisions of the act of Congress of June 3, 1916, known as the "National Defense Act," that said regiment ceased to be a part of the National Guard of this state, and that thereafter said regiment was performing services for the government of the United States and not for the state of South Dakota. It is also contended that there has been no insurrection, invasion, or state of war existing within the territorial limits of this state, and that this state is not liable for the payment of services rendered in repelling invasion of the state of Texas. These two contentions will be considered together. The National Defense Act of June 3, 1916, provides that in case of threatened invasion of the United States the President may draft into service the state National Guard, and that when so drafted it shall stand discharged from the militia during the period of service under the draft. It is the contention that by virtue of this enactment when the Fourth South Dakota Infantry was drafted into the federal service the state was released, from all obligation and liability to pay the members of said regiment during the time they were under the draft on the Mexican border. This may be true as applied to strict contractual liability. Yet there is a higher and more broad and...