Konkel v. State

170 N.W. 715, 168 Wis. 335, 1919 Wisc. LEXIS 83

• Court: Wisconsin Supreme Court
• Decided: January 7, 1919
• Status: Published

Opinions

Rosenberry, J.

Assuming, without deciding, that the defendant was entitled to immunity under the terms of ch. 409, Laws 1917, we are led-to the immediate consideration of the question whether or not said chapter is a valid enactment. It is known in the Wisconsin Statutes of 1917 as sec. 4232a, consisting of five subsections. Sub. 1 provides:

“All persons, residents of this state, now in the military service of the United States or of this state, and all those who may hereafter enlist, be appointed, or drafted into the military service of this state or of the United States, for the purpose of the present war, shall, during such service, be exempt from all civil process, and in all civil cases now pending against any person in such service, the proceeding shall be continued and stayed until the discharge of such person from such service,” etc.

Sub. 2 requires the court, whenever it appears that a suit has been commenced against a person while in the military service, to dismiss such suit, and when it shall appear in any case now pending that the principal defendant is in such service, it shall be the duty of the court to stay the proceedings. Sub. 3 prescribes the manner in which proof of the fact that a person is in the military service of the United States may be established. Sub. 4 contains certain exceptions applying to executors, administrators, trustees, and foreclosures, where the person in the military service is not the main defendant. Sub. S provides that the time during which any person is exempt from the service of civil process under the provisions of the act shall not be taken as any part of the time limited by law for the commencement of a civil action, etc. ; ! : ;

In behalf of the state it is claimed that ch. 409 is invalid (1) because it is an exercise of war power, which is exclusively vested in the United States; (2) because it violates the provisions of the Fourteenth amendment to the constitution of the United States, in that it is discriminatory as between residents of this state and residents of other 'states; (3) that said enactment is in conflict with the act of Congress known as the soldiers’ and sailors’ civil relief act and is therefore void and unconstitutional.

The contention that the enactment of ch. 409 is an exercise of the so-called war power by the legislature of the.state of Wisconsin is not tenable. Ch. 409 might be enacted by the legislature of this state wholly independently of the fact that the United States is at war. The right to immunity is based upon the fact that the person proceeded against is in the military service of the United States. Many such acts were passed during-the civil war, none of which, however, so far as we are able to- discover, was passed upon by the United States supreme court. The courts of Pennsylvania held the act passed in that state constitutional. Breitenbach v. Bush, 44 Pa. St. 313; Coxe’s Ex’r v. Martin, 44 Pa. St. 322.

The provisions of ch. 409 are not in conflict with the terms of the Fourteenth amendment as claimed; neither do its provisions offend against sec. 2, art. IV, of the federal constitution. The privileges of the act not being denied to the citizens of other states by the express terms of the act, it must be held to apply to the citizens of other states of the Union. The citizens of other states are entitled under the federal constitution to enjoy the same privileges and immunities as are conferred upon citizens of this state. Therefore, all the privileges and immunities conferred by the act upon the citizens of this state are conferred upon the citizens of other states, in the absence of language expressly limiting the act to citizens of this state. Blake v. McClung, 172 U. S. 239, 19 Sup. Ct. 165; Estate of Johnson, 139 Cal. 532, 538, 73 Pac. 424; Slaughter-House Cases, 16 Wall. 36, 77.

2. It is claimed that ch. 409 is void because it is in conflict with the soldiers’ and sailors’ civil relief act, passed by Congress March 8, 1918 (40 U. S. Stats, at Large, ch. 20). Sub. (1), sec. 101, of that act defines what is meant by the term “persons in military service;” sub. (2), what the period of military service is; sub. (3), to what the term “person” refers; sub. (4), what courts are included; sub. (5), what is meant by the term “termination of the war.” Sec. 102 provides that the act shall apply to the United States, the several states and territories, the District of Columbia, and all other territories subject to the jurisdiction of the United States and to proceedings commenced in any court therein. Sec. 200 provides the method by which default judgments may be entered, provides a penalty for the making of false affidavits, payment of attorneys to represent persons in the military service, how judgments rendered against persons in the military service may be opened. Sec. 201 provides for a stay of any proceeding against any person in military service. Sec. 202 prohibits any fine or penalty being incurred by reason of the stay. Sec. 203 provides how a judgment in any action or proceeding commenced in any court against a person in military service before or during the period of such service or within sixty days thereafter may be stayed; sec. 204, the period of stay of actions where there are co-defendants; sec. 205, that the period of military service shall not be included in computing the time within which any action may be brought against a person in the military service; sec. 300, that no eviction shall be brought where the rent does not exceed $50 per month, how eviction proceedings shall be stayed, and the penalty for violation of the provisions of the section, and how the pay of the person in military service may be allotted for the payment of rent for dwelling purposes, etc. Sec. 302 relates to the enforcement of secured obligations. Sec. 600 relates to the transfer of property with intent to' delay creditors. Sec. 603 provides that the act shall remain in force until the termination of the war and six months thereafter, and sec. 604 that the act may be cited as the “Soldiers’ and Sailors’ Civil Relief Act.”

Our dual system of government has given rise to many difficult and perplexing questions. No' boundary separating the field of federal from the field of state control can be marked out, for the reason that in many cases they overlap. The right to exercise certain powers has been conferred exclusively upon the United States. Sturges v. Crowninshield, 4 Wheat. 122, 193. In some instances the states are deprived of the right to exercise certain powers by reason of the fact that they have been conferred upon the United States. Prigg v. Pennsylvania, 16 Pet. 539, 622. In other instances it is said that the states may exercise powers conferred upon the United States until such time as Congress chooses to exercise them. Houston v. Moore, 5 Wheat. 1. There are certain fields within which the powers of the states are supreme and in which the United States cannot interfere with the exercise of the powers reserved to the states. New York v. Miln, 11 Pet. 102. In certain cases it is held, where the United States and the state have concurrent powers, that the exercise of the power of the United States is exclusive and the enactment of the state must stand aside. Sturges v. Crowninshield, supra. In certain other cases it is held that the enactments of both the United States and the state may stand together if there is in fact no conflict. Asbell v. Kansas, 209 U. S. 251, 28 Sup. Ct. 485; Savage v. Jones, 225 U. S. 501, 32 Sup. Ct. 715. In a particular case classification is often difficult, and the decisions of the federal as*well as of the state courts are not-always consistent.

In State v. C., M. & St. P. R. Co. 136 Wis. 407, 117 N. W. 686, having under consideration state a.nd federal regulation affecting interstate commerce, this court adopted the classification, laid down in Covington & C. B. Co. v. Kentucky, 154 U. S. 204, 14 Sup. Ct. 1087, where the field is divided into' three classes of legislative acts : First, where the states have plenary power, and Congress has no right to interfere. Second, cases of concurrent jurisdiction, where the states may act in the absence of Congressional action. Third, cases where the action of Congress is exclusive and in which the states have no power whether or not Congress has acted. This classification may not be applied with exactness in all cases.

There can be no doubt that Congress, in the exercise of the powers conferred upon it, may prescribe the conditions under which persons in the military service of the United States shall be subject to the process of courts, whether state or federal. Such provision seems necessarily implied from the provisions expressly granted, to maintain an army and navy. No question as to the validity of the soldiers’ and sailors’ civil relief act is raised, and we see no ground upon which its validity could be successfully assailed. It is equally within the power of a state to confer upon persons in the military service of the United States certain privileges and immunities respecting the process of its courts. The United States and the states have a concurrent right in respect to the subject matter here under consideration. The question then arises whether or not there is a conflict between ch. 409 and the soldiers’ and sailors’ civil relief act, for, if there be a conflict, the act of Congress, by par. 2, art. VI, of the federal constitution, is made the supreme law of the land. Gibbons v. Ogden, 9 Wheat. 1.

We think it must be held that the laws clearly conflict. New York Cent. R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546. In the first place, they speak upon identically the same subject matter; that is, the exemption of persons in the military service of the United States from the process of civil courts. The soldiers’ and sailors’ civil relief act prescribes .what that exemption shall be in the courts of the United States and of the states, including the state of Wisconsin. Ch. 409 prescribes what that exemption shall be within the state of Wisconsin, and it prescribes a different exemption than that prescribed by the soldiers’ and sailors’ civil relief act.

It is argued that, because ch. 409 grants a more generous immunity or greater exemption than that granted by the soldiers’ and sailors’ civil relief act, there is no conflict within the principles laid down in Savage v. Jones, 225 U. S. 501, 32 Sup. Ct. 715, and in McDermott v. Wisconsin, 228 U. S. 115, 33 Sup. Ct. 431. Viewed from the standpoint of the person in the military service of the United States there may be some force to this argument, but he is not the only person concerned. In this case the defendant soldier is the father of a child which he is legally and morally bound to support. The United States prescribes the conditions under which the delinquent father may be proceeded against. Ch. 409 provides that he may not be so proceeded against. Upon what theory can it be said that there is np conflict between the two acts ? Ch. 409 is not enacted in the exercise of the police power, so called, for the preservation of the health, morals, or promotion of the general welfare of the state, as were the regulations relating to stock food in the case of Savage v. Jones, supra, or the regulations relating to the sale of corn syrup in McDermott v. Wisconsin, supra; but ch. 409 stands upon an entirely different basis. The principles applicable to legislation relating to bankruptcy are applicable to this case. Congress having spoken fully on the subject* the power of the state to enact a law on the same subject is suspended. Sturges v. Crowninshield, 4 Wheat. 122, 196.

There is another principle applicable to the situation under consideration here, and that is that the regulation in respect to the service of civil process upon persons in the military service of the United States is of a purely national character. Sturges v. Crowninshield, supra. The orderly administration of the affairs of the army and navy requires that such regulations should be uniform. The military and administrative officers of the United States ought not to be required to look into' the statute books of forty-eight separate states to determine what the privileges and immunities of United States soldiers are. Congress having, in the exercise of its constitutional powers, provided for the exemption of persons in the' military service of the United States from process of civil courts of Wisconsin, it supersedes any like provision made by the state. Selective Draft Law Cases, 245 U. S. 366, 383, 38 Sup. Ct. 159.

It must be held that the laws referred to clearly conflict; that the soldiers’ and sailors’ civil relief act is the supreme law of the land, and so long as it remains upon the statute books of the United States the provisions of ch. 409, Laws 1917, are suspended. Sturges v. Crowninshield, supra. The right, to proceed in a civil court against a person in the military service of the United States must be determined in accordance with the provisions of the soldiers’ and sailors’ civil relief act. Ample justice can be done to the defendant in this case under the provisions of that act. Sec. 203 provides :

“In any action or proceeding commenced in any court against a person in military service, before, or during the period of such service, . . . the court may, in its discretion, on its own motion, or on application to it by such person ...

“(1) Stay the execution of any judgment or order entered against such person, as provided in this act, and -

“(2) . .

Upon filing the remittitur in the trial court .the defendant, if he be so advised, may apply to the court under the provisions of that section for a stay of proceedings.

By the Court. — Judgment affirmed.