State v. Dixon

• Decision Date: 10 February 1923
• Docket Number: 5260.
• Citation: 213 P. 227,66 Mont. 76
• Parties: STATE EX REL. MILLS v. DIXON, GOVERNOR, ET AL.
• Court: Montana Supreme Court

213 P. 227

66 Mont. 76

STATE EX REL. MILLS v. DIXON, GOVERNOR, ET AL.

No. 5260.

Supreme Court of Montana

February 10, 1923

Rehearing Denied March 5, 1923.

Original application for injunction by the State, on the relation of R. M. Mills, against Joseph M. Dixon, as Governor, and others. Writ granted.

R. M Mills, of Helena, in pro. per.

W. D Rankin, Atty. Gen., and A. H. Angstman, Asst. Atty. Gen., for defendants.

C. E Pew, of Helena, Loy J. Molumby, of Great Falls, C. Thos. Busha, of Helena, Francis A. Silver, of Butte, Ed. Horsky and Paul W. Smith, both of Helena, W. R. Flachsenhar, of Terry, G. G. Harris and Bird M. Justason, both of Great Falls, C. F. Maris and Stephen Tighe, both of Roundup, Frank P. Gault and John M. Gault, both of Great Falls, Max Kuhr, Chas. B. Elwell and A. F. Lamey, all of Havre, Howard A. Johnson, of Whitehall, Frank T. Hooks, of Townsend, W. Holman, of Lewistown, George F. Shelton, of Butte, James H. Higgins, E. C. Kurtz, and Geo. Carmody, all of Hamilton, Jess H. Stevens, of Kalispell, E. K. Cheadle, of Lewistown, F. W. Carolan, of Forsyth, Julius Wuerthner, of Great Falls, M. S. Cohen and Alex Levinski, both of Butte, R. V. Bottomly, of Harlem, D. J. Sias, Jr., of Chinook, E. J. Cummins, of Deer Lodge, O. K. Grimstad, of Billings, Donald Loehl, of Missoula, I. S. Crawford, of Forsyth, Chas. Tyman, of White Sulphur Springs, and A. C. Baird, of Missoula, amici curiæ.

GALEN J.

This is an original application for an injunction. The defendant interposed a demurrer to the complaint, and thus the case is before us on the facts appearing in the complaint. The constitutionality of referendum measure No. 25, approved March 5, 1921, found in chapter 162 of the Laws of 1921, is assailed on several grounds. At the general election held November 7, 1922, it was approved by the people by a vote of 67,463 for and 62,100 against the measure, and was thereafter, on December 15, 1922, duly and regularly declared by the Governor a law of the state. The act provides for adjusted compensation to each soldier who served in the military or naval forces of the United States during the war between the United States and the German Empire and its allies between the 6th of April, 1917, and, the 11th day of November, 1918; and to this end and for that purpose the state board of examiners are authorized to issue and sell bonds pledging the credit of the state in the sum of $4,500,000 in excess of the constitutional limit of indebtedness over and above any bonded indebtedness incurred and for which the state is now obligated.

Section 1 of the act provides:

"In order to promote the spirit of patriotism and loyalty, in testimony of the gratitude of the state of Montana, and in recognition of the splendid services of Montana men in the war between the United States and the German Empire and its allies, there shall be paid to each person who was regularly called, enlisted, drafted, inducted or commissioned and who served on active duty in the army, navy or marine corps of the United States between the sixth day of April, nineteen hundred and seventeen and the eleventh day of November, nineteen hundred eighteen for a period longer than two months; and to each person who, being a citizen of the United States at the time of entry therein, served on active duty in the naval, military or air forces of any of the governments associated with the United States during the war with the central allied powers between the sixth day of April, nineteen hundred seventeen and the eleventh day of November, nineteen hundred eighteen, for a period longer than two months; and at the time of his call, enlistment, induction, commission or service, was a bona fide resident of the state of Montana, the sum of ten dollars ($10.00) for each month or major fraction thereof that such person was in active service, not to exceed however, a total sum of two hundred dollars ($200.00); provided, that persons who have received extra compensation from any other state, or nation other than the United States for such active service shall not be entitled to compensation under this act unless the amount of compensation so received is less than they would be entitled to hereunder, in which event they shall receive the difference between the compensation allowable under this act and the extra compensation already received from such other state or nation, provided, further, that persons who have received greater compensation than the regular pay of the army, navy, or marine corps and commutation for quarters and subsistence, shall not be entitled to receive compensation under this act unless the amount of the extra compensation so received is less than they would be entitled to hereunder, in which event they shall receive the difference between the compensation allowable under this act and such extra compensation. In case of the death of any such person while in such service an equal amount shall be paid to his surviving widow, if not remarried at the time compensation is requested, or in case he left no widow and left children, then to his surviving children, or in the event he left no widow or children, then to his surviving parent or parents if actually dependent upon such deceased person for support. Persons of the female sex, or their surviving children or parents, who are in all other respects within the terms of this act, shall be entitled to compensation thereunder."

And by section 9 a tax levy not exceeding one-half mill on the dollar of all property subject to tax is fixed for the payment of the principal and interest of the bond; and by section 12 the Legislature is authorized to provide additional means for the payment of the principal and interest, it being provided that the act is not exclusive as to the method of payment.

Of the several grounds of attack made against the constitutionality of the act, in our opinion but one thereof is necessary to be considered determinative of the case: Does the act contravene the provisions of section 1 of article 13 of the Constitution, in that it authorizes or purports to authorize the state to give or loan its credit in aid of individuals, or make donations or grants to individuals? That section of our Constitution reads in part as follows:

"Neither the state, nor any county, city, town, municipality, nor other subdivision of the state shall ever give or loan its credit in aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association or corporation."

And section 11 of article 12 provides in part:

"Taxes shall be levied and collected by general laws and for public purposes only."

The provisions of our Constitution are mandatory and prohibitory unless by express words declared to be otherwise. Section 29, art. 3.

In approaching a discussion of the constitutionality of the act in question, we are governed by the axiomatic rule of constitutional law, oft repeated by this court, that the constitutionality of a legislative enactment is prima facie presumed, and every intendment in its favor will be made unless its unconstitutionality appears beyond a reasonable doubt. N.W. Mut. Life Ins. Co. v. Lewis and Clark County, 28 Mont. 484, 72 P. 982, 98 Am. St. Rep. 572; In re O'Brien, 29 Mont. 530, 75 P. 196, 1 Ann. Cas. 373; Spratt v. Helena P. & T. Co., 37 Mont. 60, 94 P. 631; State ex rel. Peyton v. Cunningham, 39 Mont. 197, 103 P. 497, 18 Ann. Cas. 705; State ex rel. Hay v. Alderson, 49 Mont. 387, 142 P. 210, Ann. Cas. 1916B, 39; State ex rel. Fenner v. Keating, 53 Mont. 371, 163 P. 1156; State ex rel. Cryderman v. Wienrich, 54 Mont. 390, 170 P. 942; State ex rel. Campbell v. Stewart, 54 Mont. 504, 171 P. 755, Ann. Cas. 1918D, 1101; Gas Products Co. v. Rankin (Mont.) 207 P. 993.

The inhibition of the constitutional provisions is, as indicated, double in character, being both mandatory and prohibitory, applicable alike to the Legislative Assembly and the people in their legislative capacity. Irrespective of the determination of other courts, it is our sacred duty to measure the act by the terms of our constitutional limitations, as we interpret them.

"It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility. The legislative and judicial are co-ordinate departments of the government of equal dignity; each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly while acting within the limits of its authority be subjected to the control or supervision of the other without an unwarrantable assumption by that other of power which, by the Constitution, is not conferred upon it. The Constitution apportions the powers of governments but it does not make any one of the three departments subordinate to another when exercising the trust committed to it. The courts may declare legislative enactments unconstitutional and void in some cases, but not because the judicial power is superior in degree or dignity to the legislative. Being required to declare what the law is in the cases which come before them, they must enforce the Constitution as the paramount law, whenever a legislative enactment comes in conflict with it." Cooley on Constitutional Limitations (6th Ed.) p. 192.

With the constitutional restrictions in mind, as well as the settled rules of interpretation stated, we venture a discussion of the constitutionality of the act.

Defendants' position is grounded with explicit candor on the proposition clearly indicated by the preamble of the act, that the measure is intended to effect...