State Ex Rel. Hamilton v. Martin

I am unable to concur in the reasoning or in the results reached by the majority.

The constitutional provision we are called upon to construe is simple and plain in its terms and mandatory in its character. It has stood unquestioned and uninvaded as the supreme law of the state for more than forty years. It is dual in its provisions and each branch is an integral part of the whole. It provides:

"The state may contract debts to repel invasion, suppress insurrection, or to defend the state in war, but the money arising from the contracting of such debts shall be applied to the purpose for which it was raised, and no other purpose whatever." Constitution Art. VIII, § 2.

So that, to come within its terms, the indebtedness authorized must be (so far as is here material) plainly (1) to "suppress insurrection", and (2) the money so obtained "shall be applied to the purpose for which it was raised and no other purpose whatever." Stronger or more mandatory language would be hard to frame.

In my opinion, on the face of the act, without even invoking judicial knowledge in any degree, the act fails to meet the constitutional requirement. The title of the act, Laws of 1933, p. 336, reads:

"An Act to relieve the people of the state from hardships and suffering caused by unemployment, through the agency of the emergency relief administration, creating a debt, authorizing the issuance and sale of state bonds, creating a sinking fund to be known as the ``General Obligation Bonds of 1933 Retirement Fund' and allocating a portion of receipts in the motor vehicle fund thereto for the payment of interest and principal of said bonds, providing for a tax levy to cover any deficiency therein, making an appropriation therefrom, declaring an emergency and that the act shall take effect immediately." showing clearly that, under the constitutional mandate as to titles, the act is one for relief simply and solely.

The preamble of the act recites certain distressing conditions, but even with a liberal construction of the language there used, these conditions are such as call for relief only, and not at all for suppression.

Section 3 of the act provides that the moneys realized from the sale of the bonds shall be deposited to the credit of the special fund for relief, created by chapter 8, Laws of 1933, p. 103, and not a penny can be used for any other purpose. Chapter 8, above referred to, is a relief act pure and simple. Its title reads:

"An Act to relieve the people of the state from hardships and suffering caused by unemployment; creating and defining the duties of an emergency relief administration, and making an appropriation for such purpose; providing penalties, and declaring that this act shall take effect immediately."

Not one dollar going into the fund created by chapter 8 can be used to suppress insurrection or for any purpose save relief of the distressed as in that act provided.

Therefore, giving the words of the constitution their plain and ordinary meaning, this act on its face is for the relief of the distressed solely, and not for the suppression of anything. The moneys borrowed are not to be, and cannot be, used under the terms of the act to suppress insurrection.

It is urged that prevention is better than cure, and that therefore to prevent violence and insurrection is in law synonymous with suppression. That invokes a new and untried rule of constitutional construction and one, I fear, which would make the constitution the plaything of the legislature and the courts. No one could ever know in advance with any certainty the meaning of the constitution upon any subject, and it might be construed one way today and another tomorrow, according to the peculiar policy or thought prevalent at the time. This cannot be a sound rule. All authorities agree that the constitution, and its terms, must mean the same thing at all times, and all authorities hold that the words of the constitution must be given their plain and ordinary meaning. The plain and ordinary meaning of the word "suppress", at the time the constitution was adopted, and now, is "to crush, to put down by force", and no amount of sophistry can change, alter or soften the force of the word "suppress".

Moreover, the prevention argument wholly ignores the constitutional mandate that the money so borrowed be used solely to suppress insurrection, or else it assumes that every one of our distressed citizens is a potential insurrectionist. If the constitutional inhibition is kept in mind, and it be conceded that prevention is synonymous with suppression, the relief from this source can be accorded only to that small minority (if any there be) of our distressed citizens who are now ripe for violence and insurrection. There is nothing in chapter 65 or in chapter 8 which attempts to separate and segregate the dangerous element in our population, if there be such, and to apply the money to prevent them from proceeding to open violence. Using the money generally for the relief of the distressed, without reference to whether they are law abiding or not, is, of itself, a direct violation of the second part of the constitutional provision which I have quoted.

The purpose and intent to relieve the distress of our people is a most worthy one, in which I deeply sympathize; but only as a last resort, even if then, can the constitution be destroyed to serve humanitarian purposes. There is ample material and wealth now within our state to relieve every worthy distressed person. The state has almost unlimited powers of taxation, and until, by the use of its power to tax, the state has consumed the wealth within its borders, we have no right to set aside a plain constitutional mandate and pass the results of our own lack of foresight on to our children and our children's children.

As a general rule, the courts are not concerned with questions of public policy, and such questions should usually be left to the legislative and executive departments of the state. Yet, as the constitution by its terms forbids the financing of relief by a bond issue exceeding four hundred thousand dollars, unless sanctioned by popular vote, I feel justified in pointing out that the constitution itself fixes, by these provisions, the public policy of the state, and in the constitutional sense this act offends against public policy.

What man in his private affairs deliberately incurs a debt to relieve his present distress and passes it on to his descendants to pay after his death? Governments should follow the sound rule which applies to the individual, and presently pay for present relief. I cannot think it sound policy or sound morals for the state to ask its future citizens to pay for the distress and suffering which occurred, perhaps, before they were born, and for which they were in no wise responsible. We who are living are responsible. The duty to relieve is ours, and until we have expended our last dollar in that direction we have no right to burden and enslave future generations to pay for our own mistakes and follies.

The act violates the constitution and is contrary to sound public policy. In my judgment, it should be held void.

I therefore dissent.

STEINERT and MILLARD, JJ., concur with TOLMAN, J.