State Ex Rel. Charlton v. French

ZINN, Justice. On September 8, 1939, following the invasion of Poland by the armed forces of Germany and the declaration of war upon Germany by both England and France, the President of the United States issued his proclamation declaring á limited national emergency to safeguard and enforce our own neutrality and for the purpose of strengthening our national defense. Following this, the Governor of the State of New Mexico on October 27, 1939, ordered the Adjutant General to call to active duty and to assemble the National Guard of New Mexico, or such portion thereof as the •Adjutant General might deem necessary, to take such steps and incur such necessary and lawful expense, as he might deem necessary, for converting the 111th Cavalry into a regiment of anti-aircraft artillery. Such call and order of the Governor was made “in order to better provide for the public defense.” ' Acting under such order, the Adjutant General, the relator here, issued Special Order No. 117, dated the same day as the Governor’s order, calling to active duty a portion of the National Guard to make the conversion of the 111th Cavalry into a regiment of anti-aircraft artillery. The military code, 1929 Comp.St., Ch. 93, provides that commissioned officers and enlisted men of the National Guard may be ordered upon special duty at the discretion of the Governor as Commander in Chief. Comp.St.1929, Sec. 93-137. This reads as follows: “Special duty. Commissioned officers and enlisted men of the national guard, may be ordered upon special duty at the discretion of the governor as commander-in-chief, and shall receive the base pay of their respective grades during the time they may continue upon duty under such order; Provided, that in addition to such base pay while upon such duty, officers and enlisted men shall receive the same rental allowance, subsistence allowance and longevity pay, as is paid to officers and enlisted men of like grade in the army of the United States while on similar duty.” It also provides that the Governor shall from time to time publish such orders as may be necessary to conform the National Guard in organization and armament to the National Guard of the United States. Sec. 93-116 is as follows: “Governor may publish orders. The governor is hereby authorized and it shall be his duty from time to time to make and publish such orders as may be necessary to conform the national guard of the state of New Mexico in organization, armament and discipline and otherwise, to that prescribed for the organized national guard of the states by the war department of the United States, and for this purpose the governor may alter, increase, consolidate, diminish, disband or discharge- officers, enlisted men, departments, staff corps, retired lists, and organizations. Provided: That no organization of the New Mexico national guard, which has been federally recognized, and has received the benefits provided in the national defense act, shall be disbanded or be permanently removed from one locality, city, town or county, to another city, town or county, without the approval of the secretary of war.” It further provides that the necessary expenses incurred in quartering, caring for, warning for duty, and transporting and subsisting the troops shall be paid by the State. Sec. 93-174. In addition, the statutes provide for the issuance of certificates of indebtedness to pay such expenses, as follows: “The State Treasurer, upon the presentation to him of vouchers and pay rolls, for such expenses, and compensation, certified by the officers commanding such forces, and approved by the Adjutant General, shall pay such vouchers and pay rolls out of any moneys in the State Treasury not otherwise appropriated, should the vouchers and pay rolls for such service not exceed in amount the sum of $5,000.00 If the vouchers and pay rolls for such service exceed the amount of $5,000.00, then' he shall forthwith execute in behalf of and in the name of the. state, a certificate of indebtedness for the money required to pay such vouchers and pay rolls; such certificates shall bear interest at the rate of not to exceed four per centum per annum and shall be payable on the first day of February, following the expiration of two months from their issue, and the amount thereof shall be raised in the next tax budget of the state succeeding their issue, and applied to the payment of such certificates.” § 93-174 as amended by L. 31, Ch. 39, § 12. On November 17, 1939, relator presented to the State Treasurer his voucher and pay roll, duly certified, covering expenses of the conversion and for the compensation of that portion of the National Guard on active duty and assembled to effect such conversion. This amounted to $5,600. Of this sum $5,300 covered expenses and $300 compensation. The Adjutant General requested the respondent to forthwith execute a certificate of indebtedness in the amount of $5,600, in the form required by law. The respondent refused. Thereupon, the Adjutant General applied to this court for a writ of mandamus requiring the respondent to show cause why he should not honor the voucher and issue the certificate of indebtedness. The writ was issued in the alternative and the respondent duly made his return and answer. The relator presents a threefold theory upon which he rests his claim of right to a writ of mandamus to compel the respondent to honor the voucher as requested. First, that the voucher presented to the respondent is in due form and certified by the officers commanding such forces and approved by the Adjutant General, and being regular on its face must be honored by the respondent without question, unless it clearly appears on the face of the voucher that the Governor had no constitutional or statutory power to cause the indebtedness to be incurred. Second, that since a portion of the National Guard was on duty and assembled, that all expenses of making the conversion, and especially the expense of providing suitable and adequate shelter and quarters for the troops and equipment, are included in the language of 1929 Comp. St. Sec. 93-174, amended by L.1931, Ch. 39, Sec. 12, as being “necessary expenses incurred in quartering, caring for, warning for duty, and transporting and subsisting the troops.” Third, that inasmuch as the Governor has the constitutional and statutory power as Commander in Chief to call the National Guard to active duty for any military purpose, it was not necessary for the Governor to issue any proclamation as to the emergency which caused him to exercise his powers. The respondent resists the writ primarily because the voucher includes expenditures for the alteration of buildings now owned by the National Guard of the State of New Mexico. The respondent argues that the use of materials and labor for such construction or alteration does not constitute the “quartering” of members of the National Guard while presently on duty on call of the Governor, but is in' fact the alteration or repair of existing armories for the future permanent use of the National Guard and no funds for such purpose have been appropriated by the Legislature as contemplated by Comp:St.l929, Sec. 93-183. Pursuant to Art. V, Sec. 4, N.M.Const., the Governor has power to call the militia in certain limited specified instances. Pursuant to Sec. 2, Art. XVIII, the Legislature has the duty to provide for the organization, discipline and equipment of the militia and to provide for its maintenance. Having the power and the duty under the Constitution to provide for the organization of the militia, the Legislature accepted the benefits and provisions of the National Defense Act. 39 Stat. 166 as amended. It enacted a complete code governing the organization, personnel, compensation, the care and management' of armories, and many other matters too numerous and unnecessary to mention in this opinion. L. 1925, Ch. 113 (1929 Comp.St. Ch. 93) as amended L.1931, Ch. 39, L. 33, Ch. 89. The Constitution makers did not say that the Legislature shall organize the militia. The mandate is that they shall provide for the organization of the militia. The Legislature, by Chapter 93, has declared its legislative policy of establishing a militia. By Sec. 93-103, it classified the militia into the National Guard and the unorganized militia. • There is no other classification in the Act. We do not find in the Act any mention of cavalry, infantry, artillery, aircraft, naval forces, or any other branch of the service. There is no specific mention of the 111th Cavalry. That appellation to our National Guard Unit is one which comes out of the regular Army or the National Guard of the Nation. The Legislature could have responded fully to the constitutional mandate that it should provide for the organization, discipline and equipment of the militia by enacting a law designating the Governor as the agency of the State to organize, discipline, equip and call out the militia for special duty in an emergency without offending the constitutional provision against the delegation of legislative powers as argued by respondent. This is conceded by Mr. Justice SADLER in his dissenting opinion. In United States v. Stephens, D.C., 245 F. 956, judgment affirmed in Stephens v. United States, 247 U.S. 504, 38 S.Ct. 579, 62 L.Ed. 1239, it was decided that the Selective Draft Act May 18, 1917, Sec. 1, 50 U.S.C.A. § 226 note, in terms declaring the President “authorized” to raise army, held, in view of preceding words and Sec. 2., National Defense Act June 3, 1916, 39 Stat. 166, and joint resolution April 6, 1917, 40 Stat. 1, not to delegate the power vested in Congress to raise-an army, but to merely commit to him execution of its scheme. If the Congress of the United States, which is authorized to raise an army, could authorize the President to raise an army, then our Legislature could provide for the organization of a militia by directing the Governor to organize it, or authorize the Governor to call the militia to duty in an emergency. The Legislature is not always in session. It may be necessary to mobilize the .military forces of the State into active service instantly. It may become necessary to equip the National Guard with new' and modern weapons of defense because of imminent danger when the Legislature is not in session. Comp.St.1929, Sec. 93-116, supra, directed the Governor, and made it his duty, to issue such orders from time to time to conform the National Guard of New Mexico to that prescribed by the war department. It is not difficult to understand the reason for inserting in the National Guard Act the provisions of Sec. 93-116, supra. This is not a delegation of legislative authority. See State ex rel. Sofeico v. Heffernan, 41 N.M. 219, 67 P.2d 240. It is not to be questioned that measures looking to the more effective national defense and purposes of state, defense are .of more emergent concern than the protection of the wild life of our State, thought to be emergent in that case. The Legislature did make an outline of the organization and did provide for the organization of the militia. But they realized that in the matter of conforming such organization and equipment to the organization and equipment of the regular Army of the United States, that changes might be required to be made quickly, with the rapid advance in the science of modern warfare, and the preparation-for such warfare, that would make it impractical to await the action of the Legislature in either regular or special session, so they selected the logical agent of the State, namely, its Chief Executive, who is the Commander in Chief of the military forces of the State, to execute the general scheme outlined by the National Guard Act in one very important respect, to-wit: “from time to time * * * to conform the National - Guard * * * in organization, armament and discipline and otherwise, to that prescribed * * * by the war department of the United States, * * * ” as need therefor should arise from time to time. The fact that this duty was imposed on the Governor shows that in the mind of the Legislature it was an emergent duty that ought not to be permitted to wait on the sessions of the Legislature. Surely this action of the Legislature in imposing this duty on the Governor shows that it is a special duty, and that it is an 'emergent special duty. We accept the definition of the respondent as to the meaning of the word “special” as found in said Sec. 93-137 as being out of the “ordinary.” When commissioned men and officers of the National Guard are called to the performance of such special duty they are engaged in an emergent special duty. While the duty thus imposed on the Governor may undoubtedly be special in the sense that it is out of the ordinary, still the fact that duties may be special and extraordinary do not render the act imposing such duties unconstitutional. Our own decision in State ex rel. Sofeico v. Heffernan, supra, decided that while it was exclusively in the power of the Legislature to designate what were and what were not game animals, it was not a delegation of legislative power to place in the control of the game commission the matter of regulation of the hunting and destruction of such game animals. For a broad statement of the rule, see Cooley’s Constitutional Limitations, 8th Ed., page 228. Who'is in a better position to ascertain the facts from time to time as to the equipment in use by the regular army than the Commander in Chief of the State’s military forces, assisted by his Adjutant General and the officers of the National Guard? Who is better circumstanced than the Governor to mobilize the National Guard for emergent special duty to provide for the public defense? The Legislature had the power to place the duty on the Governor, when he knew of an emergent situation, which instantly and immediately required the equipping of the National Guard to conform to the equipment of the regular army of the United States, to better provide for the defense of our people. It is the duty of the Governor to obey this legislative mandate because such mandate is a law. It seems reasonable, that if the Governor has the power and it is his duty to conform the equipment of the National Guard to the equipment approved and employed by the United States Army, to provide for the defense of its citizens, then it would naturally follow that the Governor has the power to provide for the housing of such equipment as may be needed for such purposes, and for the protection of such equipment from the elements, for its convenient use, etc. The Constitution, Sec. 4, Art. V, and the Statute, Sec. 93-137, gave authority to the Governor to order the militia into active service as therein provided. When acting within the power vested in him the Governor may order into active service the militia of the State and direct into what locality they shall go or operate. He is made the sole judge of the facts that may seem to demand the aid and assistance of the military forces of the State. The presumption of course is that he will not exercise this power unless it becomes necessary. See 12 R.C.L. 1006, “Governor” § 9. To his good judgment and sound discretion, the law has left the final decision as to whether the military arm of the State shall be ordered into active service. If he acts wisely and prudently, well and good. If he acts hastily or unwisely or imprudently, there is no power in the courts to control or restrain his acts. If there is a latent fear that some chief executive, under the powers granted him, may build a Maginot line along the south border of New Mexico and thus plunge the State of New Mexico hopelessly in debt, then the solution is a repeal of the authority vested in the Governor. That is for the Legislature and not the Court. Any attempt on the part of the judicial department of the State to interfere would be an interference by one department of the Government with another contrary to Art. Ill of the Constitution of the State: “The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to. either of the others, except as in this constitution otherwise expressly directed or permitted.” We can only determine whether the Governor is acting under a constitutional or statutory power. State ex rel. Roberts v. Swope, 38 N.M. 53, 28 P.2d 4. The power conferred upon the Governor by Sec. 93-116 to organize the militia and the power conferred on him by Sec. 93-137 to meet emergencies is ample for every situation that may present itself. It gives to the Chief Executive of the State the fullest authority to reorganize and equip the National Guard and to call to his assistance in any.contingency that may arise,, a force sufficient in numbers and properly equipped, to safeguard the welfare and health of the people and provide for their defense. The respondent claims, however, that the expenditure of money to qharter men and equipment not in active duty does not come within the provision of the law. It is contended by relator in oral argument, and not denied by the respondent, that the 111th Cavalry is a unit of cavalry, unat- • tached to any division. This we take it to mean that it is not attached to any regular division of cavalry of the National Guard of the Nation. The respondent does not deny the argument of .the relator that under such a situation, in the event of war, the officers and men of this regiment of cavalry will be used as replacements. Personnel replacements include all personnel destined to replace losses or to bring any unit up to its. prescribed strength. “A replacement is an officer, nurse, warrant officer, or enlisted man available for assignment. For convenience they will be referred to herein as filler replacements and loss replacements. Filler replacements will be considered as those replacements needed initially to raise units to prescribed strength. Loss replacements will be considered as the replacements needed to replace losses.” War Department Manual for Commanders of Large Units, Vol. II, Administration, Chap. 4, page 15, prepared under the direction of the Chief of Staff United States Government Printing Office, Washington, 1935. With .a prospect of war always imminent under the present world conflagration, a regard for the welfare of New Mexico’s organized National Guard composed of our own citizens would naturally motivate the Governor, if motive be necessary, to order a conversion of an' unattached regiment of cavalry into a unit properly equipped to face modern warfare. . In the event of war, the 111th Cavalry as now organized would be scattered into unknown units. The men.would be commanded by strange officers, teamed with strange men and assigned to replace casualties and they themselves would likely become casualties. As to the argument that the voucher covers the cost of building materials and labor and is in fact the alteration or repair of armories for the future permanent use of the National Guard, and for which funds have not been appropriated by the Legislature as ..contemplated by 1929 Comp.St., Sec. 93-182, we are not impressed. That there are contemplated certain alterations in present armories is not questioned. The issuance of certificates of indebtedness without limit is not confined to instances when the militia is called out by the Governor under his constitutional power. Expenses are bound to be incurred whether the Governor calls the militia to suppress riot or repel invasion or to provide for the public defense. Our colleagues, dissenting from our decision, make the strange argument that the State may contract debts only to provide for the public defense, Const. Art. 9, Sec. 7, if the militia be called to preserve the public peace, to execute the laws, suppress insurrection and repel invasion, Art. 5, Sec. 4, Const., but may not contract debts to provide for the public defense to do what Art. 18, Sec. 2, commands: “provide for the . organization, discipline and equipment of the militia.” It would be sad to convict the constitution makers with having made provision for employing the credit of the State to secure funds to defray the expenses of the militia when “called out” to suppress insurrection and repel invasion, but could not' by the same process organize, discipline and equip a militia to be in readiness to be called out. As we view the phrase “to provide for the public defense” means just exactly what it says, namely, to provide a militia of the kind required by the constitution, makers. Surely it would be poorly providing for the public defense to wait until there is an insurrection or an invasion before organizing a militia to suppress and repel. It would be poor business strategy to holler for the insurance agent to write an insurance policy when the house was burning. The following appears in the Article on Militia in Encyclopedia Americana: “In 1903 the United States Congress adopted a new militia law, by which the militia was defined to be practically all able-bodied males between 18 and 45 years, divided into two classes, namely (a) ‘the Organized Militia,’ being such forces as may be created, under State laws, regardless of the name they bear, and (b) the remainder of the militia. A period of five years was given to all the States to adopt laws'making the organization, drill and discipline of their organized militia the same as that of the regular army and the participation of the States in an annual appropriation of. $1,000,000 was made dependent on such State action and the creation of forces accordingly; the limit in number was as it stood theretofore, to wit, 100 men for each Congressional representative; those States which became entitled to participate in the annual fund became a part of the ‘Organized Militia.’ Authority was given 'to the President to call forth such number of the militia ‘organized’ or ‘reserve,’ as he might deem necessary, in case of invasion, danger of invasion. * * *” Consulting the act of 1903, 32 Stat. 775, we find this an accurate statement. We think it not unlikely that pertinent provisions of our Constitution were adopted with a knowledge of the foregoing. In view of this historical background we would hesitate to say that the language of Art. 5, Sec. 4, giving the Governor power to “call out the militia to * * * repel invasion” does not embrace the power to call out such militia in case of “danger of invasion”. The foregoing is employed to illustrate our view that “to provide for the public defense” embraces considerations of “preparedness” as well as execution. Viewing the matter from the date the Constitution was adopted, which is of the more vital importance in providing for the public defense — to organize discipline and equip a militia, or to call it out? Manifestly that cannot be called out which does not exist. Art. 18, Sec. 2, is in pari materia with Art. 5, Sec. 4, just as much as Art. 9, Sec. 7. Too much stress has been laid by relator upon the benefits to be derived from the conversion of the cavalry to an anti-aircraft unit. A belief has been formed that such benefits are of a pecuniary nature only. The conversion of New Mexico’s unattached cavalry unit into an anti-aircraft artillery is of benefit to the State. We need not go into the relative merits of cavalry units as against the value of mechanized units. That is a matter of concern and determination for those to whom is entrusted such knowledge and such duties, to-wit, the Commander in Chief of our State and his military staff. It is not for us of the pre-air generation to question their judgment. The Commander in Chief has determined this for us. That the money necessary to pay the men whom the Adjutant General called out for this special duty is within the provisions of the law cannot be questioned. The record is barren of evidence as to the amount of money to be expended in quartering the anti-aircraft units. The best we can understand from the record is that the amount ultimately to be expended is in the approximate sum of $21,870. At the present time there are on active duty two men. The relator contemplates calling such other officers and enlisted men of the National Guard to active duty, and to assemble them from time to time as it may be necessary, in order to fully carry out the order of the Governor. The writ alleges that the items of expense covered in the voucher are for the compensation for the troops and the expense of providing adequate shelter and “quarters” suitable for the new equipment which will be used by the anti-aircraft artillery unit, and as shelter and quarters for the troops composing the unit. Incidental thereto is the pay of a clerk. What is the meaning of the term “quartering” of troops? “Quarter” in a military sense has become the usual term ap.plied to stations, buildings, lodgings, etc., in the regular occupation of military troops. The Encyclopaedia Britannica, 11th Ed., vol. XXII, p. 713. “Quartering” according to Webster’s New International Dictionary, Second Edition, means in the military sense: “To shelter, or furnish with shelter or entertainment; to supply with lodging; esp., to assign to a certain place of shelter, as soldiers; often with on or upon; as, the regiment was quartered on the inhabitants of the town.” . According to the Encyclopaedia Britannica, 11th Ed., vol. Ill, p. 427, in modern British Barracks, used for the accommodation of military forces, over each man’s bed is a locker and shelf where he keeps his kit; “and his rifle stands near the head of his bed.” That is the' method of “quartering” a soldier in barracks. A place for himself, his kit and his gun. An antiaircraft unit with anti-aircraft guns requires more than a place at the head of the bed for such guns. We assume that quartering of anti-aircraft guns necessarily requires alterations in present buildings. If the alterations to be made in the present armories to provide places for antiaircraft guns do become permanent parts of our present armories, then such permanency is merely incidental to the main purpose, which is the conversion ordered by the Governor. Assuming that the Governor called a single cavalry troop to quell a riot. Assuming that in order to quarter such troop there had to be constructed gun-racks in an existing armory to hold the rifles of the men. The gun-racks constructed under such circumstances might become a permanent part of the armory. That would be a valid expenditure. Clearly there is no difference, except in degree, in the contemplated expenditure. The construction of the gun-racks would be merely incidental to the main purpose, which would be the quelling of a riot. The main purpose in the instant case before its is the conversion of the cavalry to a mechanized unit in an emergency to better provide for the public defense. Incidental to the conversion comes the alteration of the armories. The cost is not determinative of the main purpose. The clerical hire is likewise incidental to the main purpose. The Governor has not only the power, but also the duty to order the conversion. The rest is incidental. Respondent attempts to distinguish this case from the case of Lord & Burnham Co. v. City of New York, 132 Misc. 64, 229 N.Y.S. 598, 604, cited by relator as authority, because in that case the garage contemplated to be constructed, the expense of which construction was questioned, was a temporary and not a permanent structure. The New York case was based on a New York statute, identical with ours. In that case in response to the request of the Mayor of New York City, the Adjutant General of the State of New York, by direction of the Governor, issued special orders calling out certain portions of the National Guard, on the theory that there was necessity therefor to protect the city against the dangers of damage and injury to property. Under the orders of the Governor and the Adjutant General, the National Guard was assembled and a portion detailed to protect a certain aqueduct in and around Millwood, New York. An order and certificate was issued by some official in charge of this detail for the purchase of certain goods and the performance of certain labor, including material for the construction of a garage, which was connected with the barracks. On various grounds, the city treasurer refused to pay the voucher, among them being that the military law does not cover garages. On this point the court said: “That the language of section 211 is broad enough to cover building a garage, as contrasted with any other necessary structure — say a barrack — scarcely admits of argument. It includes ‘the necessary expenses incurred in quartering, caring for, warning for duty and transporting and subsisting the troops.’ The characteristic and usual means for transporting the modern soldier and his supplies, such as food, clothing, and ammunition, is the motor truck. The garage in question was designed to shelter motor-trucks in a climate where such shelter is essential.” We are unable to distinguish between the-necessary construction of a garage in an emergency, even though deemed of a 'temporary nature, or ■ the emergent construction of gun-racks for a troop of cavalry on duty, which gun-racks may ultimately become a permanent part of an existing armory, or the alteration of existing armories to house anti-aircraft guns when a conversion of the guard is ordered by the Governor in the present emergency.. A technical distinction may be drawn, but such fine technicalities cannot be indulged in when we are resolving questions going-to the method of providing for the military defense of our State and Nation. For the reasons given the writ of mandamus will be made absolute. It is so ordered. BICKLEY, C. J., and MABRY, J., concur.