Grise v. Combs

WILLIAMS, Judge

(dissenting).

This Court has heretofore expressed the opinion that a veterans’ bonus might legally be paid. Stovall v. Gartrell, Ky., 332 S.W.2d 256. Following that in the concurring opinion of Judge Palmore in Wat*684kins v. State Property and Buildings Commission of Kentucky, Ky., 342 S.W.2d 515, it was said:

“The basis, threadbare as it is, on which we sustain the bonus is that the veterans residing in Kentucky are a segment of our population who can be classified or singled out for the payment of a benefit out of public funds as an adjustment for a presumed economic disadvantage or setback suffered by each of them from a common cause. Stovall v. Gartrell, misconstrued in the dissenting opinion, was carefully worded to convey this thought. The ‘moral obligation’ of the state is to ameliorate the changed status wrought upon its citizens by their military service, not to pay for the service. An analogy might be drawn to the purpose presumed to be achieved through the various types of public assistance wherein residence is one of the conditions of eligibility. See also the strict residence requirement (KRS 206.020) of the Confederate veterans pension law. :So we postulate that his military service has had an economically crippling ■effect on each veteran, the disadvantage .of which, though it may not be visible, presumptively continues extant, representing an inequity among our citizens that the legislature has a right to recognize and broadly adjust. Precise adjustment on an individual basis would, of course, be impossible.”

The payment of money to those in a certain class for a recognizable public purpose (rather than giving aid in some other form) does not violate either section 3 or section 171 of the Kentucky Constitution. In Bowman v. Frost, 289 Ky. 826, 158 S.W.2d 945, we recognized the legislature could appropriate money tq the needy blind, not as a mere private gift or bounty, but in discharge of an inherent duty of the Commonwealth to assist a class of unfortunates.

Similar aid to dependent children and the underprivileged has been held constitutional on the ground of a social obligation to promote the general welfare in Meredith v. Ray, 292 Ky. 326, 166 S.W.2d 437, and Jefferson County Board of Education v. Goheen, 306 Ky. 439, 207 S.W.2d 567. The payment of public funds to needy individuals is recognized as a proper public purpose in Duncan v. Smith, Ky., 262 S.W.2d 373, 42 A.L.R.2d 754. Similarly, payment of wages to convicts (though not authorized under section 3 of the Constitution) was upheld on this ground in State Board of Charities and Corrections v. Plays, 190 Ky. 147, 227 S.W. 282.

While veterans cannot be placed in quite the same class as those considered in the foregoing cases, compensation to them is really an extension of that doctrine. (It is common knowledge that the need for economic aid to unemployed veterans has played a significant part in the promotion of this legislation.)

It may be observed that the legislature has granted special concessions and exemptions to veterans by other acts. These are: KRS 61.370 (Re-employment of veterans) ; KRS 64.300 (Exemption from payment of notary fees); KRS 142.020 (Exemption from poll tax); KRS 164.480 (Scholarships) ; and KRS 213.190 (Exemption from payment of fees for vital statistics records). No one would contend that these statutes were conceived as granting privileges and emoluments for special public services under section 3 of the Constitution. In fact they constitute a clear recognition of the changed economic status of the veteran and this type of law enacted for their benefit may rightfully be considered as promoting the general welfare of the entire citizenry.

We come now to the question of the validity of the Amendment (Chapter 1, Acts Extra Session, 1960). This legislation was enacted for the sole purpose of extending benefits to all veterans of four major wars (and the dependents of deceased veterans) regardless of whether or not they had resided in Kentucky after their indue*685tion into Ae armed services. The only pertinent condition of payment was the fact that the veteran had been inducted from Kentucky and had resided here for six months prior thereto.

At this point it is important to point out that the Kentucky “bonus” law is without precedent. Had it been an act similar to those considered in other jurisdictions, passed shortly after the engagement of the United States in a major military conflict and limited to the veterans of that conflict, the problems presented, and particularly those with respect to residence, would have a different hue. The scope of the Kentucky legislation, from an objective standpoint, staggers one’s credulity. It covers every veteran inducted from Kentucky into the United States armed forces for service in any one of four wars, beginning with the Spanish American War fought in 1898. Such a wholesale appropriation calls for careful scrutiny. On what possible ground can we sustain this payment of tax money to a person who is not a citizen of this state and has not resided in this state for 15, 40 or 60 years?

It is clear that such compensation cannot be upheld as a gift, bounty or reward for federal military service. This is the only conceivable legal ground upon which the benefits of the Act could be extended to citizens of other states, and that is the basis for appellants’ contention that Article 1, Section 8 of the United States Constitution would be violated. We have stretched constitutional concepts almost to the breaking point in sustaining payments to Kentucky citizens. This was not on the theory that Kentucky could pay for military service as such, but only on the ground that the general welfare of Kentucky is or will be promoted by such payments and the Commonwealth as a whole will realize a public benefit therefrom. See Carman v. Hickman County, 185 Ky. 630, 215 S.W. 408, and Industrial Development Authority v. Eastern Kentucky Regional Planning Comm., Ky., 332 S.W.2d 274. While compensation to Kentuckians may promote the present and future general welfare from the standpoint of aid to the recipients, we cannot discern in what respect the payment of compensation to non-residents could by any stretch of the imagination foster such a public purpose of Kentucky.

Take an example that could well be presented under the Amendment. A veteran of the Spanish American War, inducted into the army in 1898 from Kentucky, after the war moved to California where he subsequently died, leaving a widow who is now and always has been a resident of that state. How could a cash payment to her possibly promote any public interest of Kentucky? If this example appears extreme, it doubtless would be duplicated many times with respect to veterans of World War I, which terminated over 40 years ago. Even World War II ended more than 15 years ago. The same difficulty is apparent if non-resident veterans of these wars had survived, and the payments were made directly to them. Kentucky simply could have no recognizable interest in economically aiding those citizens of other states. If nothing else, any present public benefit realizable from the Amendment is so “exceedingly remote” as to fall without the scope of a public purpose under sections 3 and 171 of our Constitution. See Barnes v. Adams, Ky., 305 S.W. 2d 754.

It is common knowledge that after the enactment of the original Act, which limited compensation thereunder to those who were residents of the state on November 3, 1959, a protest was raised by non-resident veterans of the most recent wars that they had been discriminated against. It was said that many had been forced to leave Kentucky because of the better economic conditions elsewhere and the state had some obligation to reward their former native sons since their departure resulted from conditions beyond their control. This argument, made in good faith and emotionally persuasive, along with other considerations, was instrumental in inducing the legislature to extend the benefits of the Act to non*686residents by the enactment of the Amendment at the special September session in 1960. We are wholly in sympathy with the non-resident veteran and with the motives of the Governor and the legislature in wishing to extend benefits to all those who once had claimed the proud title of “Kentuckian.”

Throughout the battles of the bonus, which have been waged before the legislature and before this Court, our sympathetic attention has been mainly directed to tile veteran. We now have before us a person who justifiably claims a right to our solemn consideration. He is the Kentucky taxpayer. It is his money we propose to spend.

The basic fallacy of the claim made on behalf of the non-resident is that he has at any time had any rights whatsoever. Neither he nor the resident veteran has any rights or legitimate claims against the Commonwealth. The popular notion of the veterans’ “bonus” seems to be that it is a giant give-away, and everyone who has seen service should come in for his share. The taxpayer, however, poses this unanswerable question: What authority has the legislature to donate public monies to citizens of other states for which the Commonwealth will realize no possible benefit?

While the taxpayers’ money may be expended in the reasonable discretion of the legislature for a proper public purpose to promote the general welfare of the Commonwealth, unless Kentucky as a whole benefits by this expenditure, it is invalid. We have recognized the legislature could determine that a proper public purpose will be served by giving economic aid to the Kentuckian. In this design a bounty to the non-resident can play no legitimate part.

A public purpose of the state must affect and be beneficial to the inhabitants of the state. Stanley v. Jeffries, 86 Mont. 114, 284 P. 134, 70 A.L.R. 166. See also State ex rel. Owen v. Donald, 160 Wis. 21, 151 N.W. 331, 365. The expenditure of public monies must promote the general welfare of those who are taxed to sustain it. Carman v. Hickman County, 185 Ky. 630, 215 S.W. 408; City of Lexington v. Hager, Ky., 337 S.W.2d 27. Payments to nonresidents do not conform to this requirement, and obviously further no Kentucky public purpose upon which such legislation may be validated.

It is contended that such a view is unreasonable since many states have in the past paid veterans’ compensation to nonresidents without objection. The history of veterans’ legislation in other states is not persuasive for four reasons: (1) such payments to non-residents have not heretofore (as far as we have been able to discover by diligent research) ever been questioned in a court; (2) other bonus legislation has been relatively contemporaneous with the service of a veteran and it was apparently presumed that veterans inducted from a particular state continued to be, at least constructively, residents of that state; (3) the immediacy of the prior conflict had an emotional appeal that apparently transcended a thorough-going analysis of the basic justification for such broadly beneficial legislation; and (4) no other state has enacted legislation even approaching the comprehensiveness of outlaw.

An examination of the cases shows that the benefits of such legislation in other states were not indiscriminately extended to non-residents. On the other hand, they were limited to residents by the laws considered in Bosworth v. Harp, 154 Ky. 559, 157 S.W. 1084, 45 L.R.A.,N.S., 692; (upon which the majority seem to rely) People v. Westchester County Nat. Bank, 231 N.Y. 465, 132 N.E. 241, 15 A.L.R. 1344; and Walsh v. Jenks, 135 Conn. 210, 62 A.2d 773.

On the ground of rehabilitation or economic aid to the veteran because of his changed status, valid legislation of this character clearly must be limited to Kentucky citizens. No public purpose of this state could be served by furnishing benefits to citizens of other states.

*687As is evident from the many cases we have carefully scrutinized, it is only by taking the most liberal view that veterans’ “bonus” legislation can be validated -at all. There can be no legitimate public purpose in the payment of such compensation to those non-residents made eligible under the Amendment and therefore such Amendment violates section 171 of the Constitution and is invalid, null and void. This is particularly evident when considered in the light of present conditions when the States of the nation are having so much difficulty finding adequate sources of tax revenue.

The closing remarks of Judge Lassing in his dissenting opinion in Bosworth v. Harp, 154 Ky. 559, 157 S.W. 1084, 1088, are most pertinent here:

“When Legislatures, swayed by sentiment, make reckless appropriations in violation of the plain provisions of the Constitution, the people look to the courts for relief against the oppressive and unjust taxation which such legislation produces; and courts, much as they may sympathize with the condition of those who are made the beneficiaries of such legislation, should hesitate to give to the plain language of the Constitution a strained construction in order to uphold such legislation. The rights of those not benefited by .the act are entitled to the court’s protection as much as the rights of those who are.” (Our emphasis.)

We prefer to substitute the word “unauthorized” for the word “reckless” in the quotation because we believe the Kentucky legislature carefully deliberated over the many difficult problems presented to it by the vote of the people on November 3, 1959. However that may be, it is still our duty to protect the taxpayer who makes a bona fide claim of an invalid expenditure of public funds.

Only by limiting compensation of this sort to residents of this state can it be said that a present state public purpose is involved and that the payment is not for past federal military service. Under no other theory could we logically sustain the position that the state is not intermeddling in the military affairs of the federal government and is not violating the United States Constitution.

For the foregoing reasons, I respectfully dissent. MILLIKEN and PALMORE, JJ., concur in this dissent.