State ex rel. Griffith v. Davis

217 P. 905, 114 Kan. 270, 1923 Kan. LEXIS 68

Opinions

The opinion of the court was delivered by

Hopkins, J.:

This is an original proceeding in quo warranto which calls for a construction of the provisions of chapter 200, Laws of 1923, providing compensation for veterans of the world war.

The title of the act is: “An a.ct relating to compensation for veterans of the world war.”

Section 1 reads as follows:

“The state of Kansas acknowledges its indebtedness to, and promises to pay to each person, who was a resident of the state of Kansas at the time of his entering the service, and who served in the world war in any branch of the army, navy, or marine corps of the United States prior to November 11, 1918, and who was honorably discharged therefrom, the sum of one dollar per day for each day of his or her entire service, which compensation shall be in addition to all pay and allowances made by the United States government.”

Section 2 provides that the governor, secretary of state and state auditor are authorized and directed to issue bonds of the state of Kansas in a sum not exceeding $25,000,000, to provide funds for the purpose set out in section 1.

Section 3 provides a tax levy to pay the interest on the bonds and the principal thereof, as they become due and makes appropriation of the funds so raised for that purpose.

Section 4 is as follows:

“There is hereby created a board consisting of the state officers named in section 2 hereof, and the adjutant general of the state, who are hereby charged with the administration of this law, and who shall, within thirty days after the taking effect of this act, make, establish and publish rules and regulations providing for the proof of claims under this act, and for the method of payment of the same; and they are hereby authorized in the general administration of this law, to establish other rules and regulations.”

Five general questions are presented:

1. Are regular soldiers, sailors and marines who were members of a branch of the regular army, navy and marine corps prior to the declaration of the world war, April 6, 1917, entitled to participation in the compensation provided by section 1 of the act?

2. Are members of officers’ training camps, conducted after the declaration of war, entitled to compensation under the acts for the time they were members of such training camps?

3. Are persons who entered the United States Military Academy at West Point and the Naval Academy at Annapolis, and from those places became veterans of the world war, entitled, under the act, to compensation?

4. Is the rule prescribed by the state board of compensation limiting the compensation of eligible claimants to the fund to June 30, 1919, valid or a proper exercise of discretionary power of the board under section 4 of the act?

5. It being conceded that the fund already voted by the people and appropriated by the legislature is insufficient to pay all claims in full, whether the equitable rule of paying each claimant his pro rata share should be invoked?

The questions will be considered in their order.

1. 'The plaintiff contends that regular soldiers, sailors or marines who were in the service of the United States prior to the declaration of war are not beneficiaries of the act and should be excluded from participation in the compensation awarded; that the regulars who enlisted in the military, naval or marine corps service prior to the declaration of war were not moved to enlist because of the world war but because of the profession, its emoluments, promotions and stations; that the regulars did not sustain a loss of occupation and calling because of the war; that, having enrolled as regulars, the war was only an event of their service; that, because of the war, they obtained additional emoluments, promotions and honors which they never would have obtained had it not been for this event in their service; that the compensation act was not intended for their benefit. On the part of the defendants it is contended, not only that the plain intent and meaning of the statute includes the regular soldier, but that there were good and sufficient reasons which moved men through the purest patriotism throughout the entire struggle between the European armies, and before the declaration of war by the United States, to enter the service for the impending conflict, clearly discernable. We need not here discuss such reasons or motives which then actuated men. Those who desire will find such questions fully discussed in recent histories of the world war. (See, Simonds’ History of the World War and Reference History of the War, New International Encyclopedia.) Attention to the statute is sufficient. Its language discloses a clear, plain and unmistakable meaning. It is not ambiguous or lacking in definiteness or preciseness. The act relates to compensation for veterans of the world war. It includes any person who was a resident of the state of Kansas at the time of his entering the service, who served in any branch of the army, navy or marine corps of the United States in the world war and who was honorably discharged. No strained construction of its provisions is necessary. The langua'ge conveys.no hidden meaning. There is no discrimination against volunteers, drafted men, men in the regular army, national guards, or any branch of the army, navy or marine corps. It makes no distinction as to manner in which the person entered the service, whether inducted voluntarily, drafted or commissioned in any branch of the army, navy or marine corps of the United States. All were engaged in the same laudable enterprise. They relinquished the pursuits of peace and safety for those of privation and danger. When the legislature and the people came to make provision for their compensation, they did not distinguish between regular army men and those in other branches of the service.

2. It is contended by the plaintiff that the provisions of the National Defense Act, relating to officers’ training camps, do not warrant the payment of compensation to those who served in the training camps during such service; that the status of such persons under the compiled statutes of the United States, is that of citizens; that they were only preparing to enter service, and that, until they acually did so, they cannot be regarded as members of the army, navy or marine corps of the United States, and consequently, not entitled to compensation under the provisions of the act under consideration. We are here giving consideration to the intention of the legislature and the electors of Kansas when they provided the compensation. We find no language in the act or elsewhere indicating an intention of the legislature or of the people of Kansas to exclude the training camp soldiers of the world war from compensation for the time spent in the camps. Ample reasons for these men entering the camps at the time should not now be overlooked.

Shortly after the outbreak of the war the president declared that eventually this country must participate in the salvation of the civilization of the world; that it was the duty of young men to prepare themselves. About the same time Major General Leonard Wood advocated the establishment of military training camps for the instruction of the youth of the land against the day when the United States must enter the war. Such camps were established. The secretary of war, acting under the authority of the National Defense Act of June 3, 1916, established training camps to train men to officer the troops of the United States during the emergency. Men of special fitness, physically, mentally and educationally, were appealed to on patriotic grounds to leave their civil occupations, their professions and businesses and enlist for this training. Hundreds of Kansas men, in response to these appeals, volunteered on this basis, left their homes and civil occupations, were accepted and entered these camps. On arrival at the camps they were checked in, issued complete military equipment, assigned to companies, placed in barracks and,each took the following oath:

“I hereby acknowledge that I have enlisted for a three months’ course of instruction at the training camps for reserve officers and candidates for commission in the army of the United States, to be held at- or at such other places as may be designated by proper authority, commencing -, 1917, and I agree to obey all rules and regulations prescribed by proper authority for the government of said camps. I further agree to accept such commission as may be tendered to me by the secretary of war; and I do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America, and that, during the period of said camp, unless sooner discharged by competent authority, I will obey the orders of the president of the United States and of the officers appointed over me according to the rules and regulations established by the secretary of war.”

It is said that the military discipline at the training camps was the strictest encountered anywhere in the service. All who entered immediately lost their status as civilians and assumed a military status. They lost their constitutional right of trial by jury; were subject, under all circumstances and at all times, to military control. They were deprived of their liberty for infractions of military rules or orders without any civil trial. They could not leave the camps or withdraw from the service except upon authority of the camp commander, in each case, for cogent reasons, the sufficiency of which were judged by military authority. The soldier had no option and was at all times obligated to accept whatever commission was offered him. The option as to whether he should remain in the service of the government was vested in the government of the United States and not in him. During service in the training camp he performed the same duties as other soldiers. To all intents and purposes they were doing service as much as those enlisted in other branches. In a'great majority of cases those who enlisted in the training camps were commissioned and remained in the service during the war. It is also urged that these men did not go to the camps solely by reason of the emergency but that they were moved, at least, in part, by selfish motives. The legislature and the electors of this state did not predicate the paying of compensation upon motive of entering the service. Who is now able to analyze the conflicting emotions which moved men in'those stirring times? It is said that the highest mortality occurred among the junior officers, those likely to be selected from the training camps. How then are we able to say that these men acted with a selfish motive when they voluntarily abandoned their peaceful pursuits, bade their families goodbye and set out on war’s uncertain adventure? They are entitled to participate in the fund for the time served in the training camps.

3. The question is presented, whether persons who entered the United States Military Academy at West Point and the Naval Academy at Annapolis, and from there became veterans of the world war, are entitled to compensation under the act. There appears to be no question but that cadets in training at West Point are recognized as being in the regular army of the United States and that cadets at Annapolis are understood to be in the navy. (Act of June 3, 1916, 39 U. S. Stat. at Large, ch. 134, §§ 1, 2, p. 166; act of June 4, 1920, 41 U. S. Stat. at Large, ch. 227, §§ 1, 2, p. 759; United States v. Watson, 130 U. S. 80; United States v. Cook, 128 U. S. 254.)

It is also conceded by the parties to this action that cadets in attendance at the United States Military Academy at West Point and the Naval Academy at Annapolis are members of the army and navy of the United States. We are therefore of the opinion that cadets in either institution who were citizens of Kansas and who served in the world war are entitled to compensation under the act.

4. The question is presented, whether it is within the power of the compensation board to fix a date (June 30, 1919) limiting the time for which compensation will be allowed those who were in the service, and if not within the power of the board so to do, whether the board may establish a rule placing the burden of proof on the applicant to show that he could not sooner have retired from the service. Whatever authority the compensation board may have is given by section 4 of the act. It may be said that the rules which the board may make for the effective exercise of their power and for the discharge of their official duties are administrative and ministerial. They are made for the accomplishment of the business with dispatch. The board is not empowered to make rules which amend or which have the effect of amending the statute nor to modify its terms in any degree. The statute provides that compensation shall be paid “the sum of one dollar for each day of his or her entire service." It prescribes no limit to the compensation and no date on which it should cease. It states neither a beginning nor an ending for such service, but says that those who entered the world war prior to November 11, 1918, shall be entitled to compensation. The world war had a legal beginning and ending. For some specific purposes it might be considered as ending on a specified date, but, unless otherwise specified, it began on the declaration of war and ended at the date of the proclamation of peace. The two dates are April 6, 1917, and July 2, 1921. (Joint Resolution of Congress, act of July 2, 1921, Fed. Stat. Ann. 1921, supp., p. 68.) We are of opinion, with reference to the establishing of a rule requiring applicants to show that they could not sooner have ended their service, that the language of the statute which states clearly that the applicant is entitled to pay for each day of his entire service, precludes authority on the part of the board to require any such showing. The date of the applicant’s discharge is sufficient.

5. It is conceded by the parties to this action that the fund of $25,000,000 voted by the people and appropriated by the legislature will not be sufficient for the purpose intended. This is indeed a regrettable situation, one for which the best possible solution must be found. It is a general policy of courts of equity to distribute assets proratably among all the creditors. One or more may not obtain preference or priority over the others. The $25,-000,000 voted by the people and appropriated by the legislature, is a trust fund for all veterans of the world war who come within the requirements of the act. It would not be just to pay one veteran all that is due him and another nothing, nor to pay one in full and another in part only. The statute is framed on equitable principles. It is designed to do a public duty to those who served their state and country in time of peril. The application of the equitable rule of payments between debtor and creditor should govern here as in any case of the insufficiency of funds. This rule was laid down at an early date and has been consistently applied to the present time. Under the circumstances the rule of equity requires a prorating of the fund in order that there may be equality of distribution among those entitled to participate. A moral duty requires that the available fund be extended to the fartherest possible degree and that the next convening legislature 'take all necessary means to provide for whatever deficiency may be found to exist. It would be manifestly unjust to pay some of the claims in full at this time and compel other worthy veterans to wait for their proportionate part until provision for the balance can be made by another legislature. The circumstances require the payment of every veteran of as large a per cent of his claim as possible and as soon as humanly possible. It will, therefore, be the duty of the board to prorate and pay the claims of the applicants for as large a per cent of the amount due as may be safe in order that every possible claimant entitled to participate may receive his just proportion. The board should also designate some reasonable time in the future within which applicants may file and complete their claims and then, when all claims have been properly considered, make a further payment of the balance remaining in the fund.

Judgment for plaintiff in part and for defendant in part.