State ex rel. Griffith v. Davis

OPINION ON REHEARING.

The opinion of the court was delivered by

Hopkins, J.:

An application has been filed to modify the judgment rendered July 18, and to decide additional questions.

1. Shall the judgment be modified by eliminating therefrom the requirement that if available funds are insufficient to pay all lawful claims in full, they be prorated, so that all veterans entitled thereto may receive their proportionate part thereof?

2. Whether the reasonable expenses incident to the administration of the soldiers’ compensation act may be lawfully paid out of the funds available from the sale of the bonds?

3. May the legislature, without further' submission to popular vote, authorize an additional bond issue to cover any insufficiency in available funds to pay the state’s debt incurred by section 1 of the compensation act?

The questions will be disposed of in their order.

1. The court is asked to modify that part of its judgment which provides for a prorating of available funds among' all veterans lawfully entitled to participate. In support of the application it is stated- that a shortage of the available funds has not been admitted and defendants are unable at this time to say there will be a *284shortage. This is a mistake. On the previous submission it was admitted that there would be a shortage. Plaintiff asserted that if all who served during the world war, if otherwise qualified under the act, were entitled to compensation, there would be a shortage of $4,000,000. Defendants answered that if all entitled to do so, submit their claims, and the average of those already filed is maintained, it will require $32,688,000 to pay the compensation.

Assuming a shortage, defendants in one brief contended:

“There is no hard and -fast rule of law which prevents prorating of the fund should it fall short. On the contrary the rule of equity requires a. prorating of the fund, . . . Suppose this court were charged with the administration of the fund. Would your honors hestitate for a moment to order an equal distribution in the event of an apparent shortage? The equitable rule of the application of payments between debtor and creditor governs in this case as in any other case of the insufficiency of funds.”

In another they state:

“It will soon be determined whether there is money enough to go around. If not, what then? Two alternatives are open:
“(1) Pay the first ones claiming in full and the others nothing. A man lives now in California. He is late filing his claim on that account. Some county official makes a mistake and all claims from that county must go back for correction. Many Kansas boys are in far-away hospitals, trying to fight their way back, and their claims are delayed. These men get nothing, and the able-bodied, alert man gets all.
“(2) Make a 75 per cent payment now, treating all alike. Defer the final dividend until all claims are in. By then the legislature of 1925 will make up the deficiency and all can be paid their last 25 per cent. If the legislature doesn’t do it, then, at least, there is no injustice done to any.”

Defendants stated on the present submission that there had already been filed 68,000 claims averaging $400 each, making a total of $27,200,000. It is not made clear to the court why the judgment should be modified in such a way as to permit the defendants the extraordinary power of paying same in full, which would have the effect of denying others all or part that may be due them. Under the circumstances, the announced rule of prorating is the only equitable one that can be devised. Should no further funds be provided, the' $25,000,000 already appropriated, should be made to extend as far as possible toward the payment of all lawful claims. Every veteran of the world war who qualifies under the provisions of chapter 200 of the Laws of 1923 is entitled to his or her proportionate part thereof. If the legislature, which is representa*285tive of all the people, shall in its wisdom provide additional funds so that all may be paid in full the necessity for prorating will cease and the fixing of a date when all claims shall be filed and completed will be obviated. The court adheres to its. decision that there must be an equitable and absolutely impartial prorating of the compensation fund among all the persons lawfully entitled to payment, unless and until practical means are provided to pay every lawful claimant in full.

2. A question has arisen as to whether the reasonable expenses incident to the administration of the soldiers’ compensation act may be paid out of the funds available from the sale of bonds. The controversy involves the validity of chapter 209 of the Laws of 1923, section 1 of which is as follows:

“There is hereby created a fund in the state treasurer’s office to be known as the soldiers’ compensation fund, and the money realized from the sale of the bonds authorized to be issued by section 2 of the act entitled ‘An act relating to compensation for veterans of the world war’ shall be paid into the state treasury to the credit of the fund to be known and designated as the soldiers’ compensation fund and all of said fund is hereby appropriated to the uses of said act, and acts supplemental thereto, out of which shall be made disbursements of all sums allowed to claimants as compensation and all sums necessary to pay all the expenses incident to the administration of the act entitled ‘An act relating to compensation for veterans of the world war,’ including the salaries and expenses of the director of compensation and district examiners, as provided by law; and' all necessary expenses of the board or members thereof created in section 4 of the act entitled ‘An act relating to compensation for veterans of the world war’: Provided, That for the purpose of paying expenses that may be incurred prior to the sale of the bonds provided for herein, there is hereby appropriated out of any money in the state treasury not otherwise appropriated the sum of five thousand dollars.”

Consideration of the soldiers’ compensation act is necessary. As chapter 255 of the Laws of 1921, it was submitted’to the people of Kansas and adopted by the requisite constitutional majority at the general election of 1922.

Section 1 reads:

“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, nav3' or marine corps of the United States prior to November 11, 1918, and who was honorably discharged therefrom, the sum of one *286dollar 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 reads:

“The governor, secretary of state, and state auditor are hereby authorized and directed to issue bonds of the state of Kansas in a sum not .exceeding twenty-five million dollars to provide funds for the purpose set out in section 1 hereof: Provided, That such bonds may be issued in installments from time to time in such amounts and upon such terms as may be necessary to meet the payments of compensation as the same are allowed; such bonds shall bear interest not to exceed 5% per cent; such bonds or the portion thereof at any time issued shall be made payable at the fiscal agency of the state of Kansas in twenty-five equal annual installments, the first of which shall be payable one year from the date of issue, and the last of which shall be payable twenty-six years from the date of issue, and which bonds shall be sold to the highest bidder and for not less than par.”

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

Section 4 reads:

“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.”

In State v. Davis, 113 Kan. 4, 213 Pac. 171, where the validity of the compensation act was questioned, it was said:

“If chapter 255 of the Laws of 1921 is uncertain or indefinite in any particular, that uncertainty and indefiniteness can be removed by subsequent legislation not inconsistent with that act.” (Syl. fl 4.)

It is contended that the constitutional restriction which relates to debts for extraordinary purposes requires, that the purposes for which the debt was created should be specified in the, law; that it was so specified as being an indebtedness of the state to the veterans of the world war of one dollar for each day’s service; that the legislature cannot divert any part of the money appropriated by the compensation act from the destination fixed by law which was approved by the people; that the expense of distributing the fund is the state’s expense — the state’s business — and that the legislature cannot divert any part of the fund to pay the cost of run*287ning the business of the state, and therefore, that the attempt of the legislature, in chapter 209 of the Laws of 1923, to divert a part of the fund for the purpose of disbursing it, is invalid.

Whether chapter 209 of the Laws of 1923 is valid, depends on whether the expense of administration may come out of the fund provided by the compensation act. Various matters should be considered in arriving at a conclusion.

In State, ex rel., v. Kelly, 71 Kan. 211, 811, 813; 81 Pac. 450, it was said:

“In construing a statute resort should first be had to the language of its provisions. If it be found that a clear and definite meaning may be ascertained by giving .the words their common signification, the court has no choice or discretion to exercise; its only duty is to declare the result of its investigation. An observance of this rule requires the court to consider every part of the act, and, if possible, to discover from the whole the legislative intent. Another requisite rule of construction is that where it is doubtful which of two objects the legislature had in view, one being within its authority and the other not, the language must, be given a broad and liberal interpretation, and an endeavor made to apply the act to the object within the legislative authority. All presumptions are resolved in favor of the constitutionality of a statute, and when doubt is entertained its language should be given that construction which will sustain it. (The People, ex rel. Sinkler, v. Terry, 108 N. Y. 1, 14 N. E. 815; Miller v. Dunn, 72 Cal. 462, 14 Pac. 27, 1 Am. St. Rep. 67; City of San Diego v. Granniss, 77 id. 511, 19 Pac. 875; Mauldin v. City Council, 42 S. C. 293, 20 S. E. 842, 27 L. R. A. 284, 46 Am. St. Rep. 723; Wesger v. Taylor, 39 Kan. 754, 18 Pac. 911.)”

In construing a statute the court may look to the history of the times, to the causes which induced its enactment and to the object sought to be attained. The intent of the lawmakers should govern if it can be ascertained, if the provisions of the statute do not contravene the constitution. While the construction of a statute is a judicial and not a legislative function, a legislative construction is entitled to weight. Antecedent, contemporary and subsequent action of the legislature and the condition of affairs when the statute was enacted may be considered in construing it. (See, State, ex rel., v. Kelly., supra, and cases cited.) The legislature which enacted chapter 209, Laws of 1923, was largely the same legislature that enacted chapter 255 of the Laws of 1921. The senate was comprised of the same membership and approximately one-third of the members of the house were the same in 1923 as in 1921. We may consider the fact that the legislature of 1923, by enacting chapter 209 placed a *288construction upon chapter 255 of the Laws of 1921 to the effect that the reasonable and necessary expenses of administering the compensation act should be paid out of the funds derived from the sale of the bonds. “In determining the intent of the legislature, the court is not limited to a mere consideration of the words employed, but may properly look to the purpose to be accomplished, the necessity and effect of the statute under the different constructions suggested.” (City of Emporia v. Norton, 16 Kan. 236, and cases cited.) Courts will ordinarily yield to a practical construction of a statute placed upon it by the legislative and executive departments unless satisfied that such construction is repugnant to the plain provisions of the constitution. (State, ex rel., v. Lord, 28 Ore. 498; 31 L. R. A. 473.) Here both the legislative and executive departments proceeded upon the theory that the reasonable expenses of administration might properly be paid out of the funds accumulated from the sale of the bonds.

It is not necessary to here detail the various measures enacted, the requirements thereof, and the efforts made to put the compensation act into effect. The legislature could not have estimated, with any degree of accuracy, what amount of money would be 'required to efficiently administer the fund. No person was able to foresee what force of assistants, clerks, stenographers and typists or what equipment might be necessary for a performance of the work nor the length of time required in which to accomplish it. Under the circumstances it was natural and expedient for the legislature to make provision for the payment of the expenses out of the fund accumulated from the sale of the bonds with the expectation that if the $25,000,000 appropriated was not sufficient to pay all lawful claims in full, and also pay the cost of administration, the legislature would, in due time, make the necessary appropriation to cover the deficiency. The human machinery developed in Kansas for the disbursement of the fund is said to be the most efficient and economical of any yet devised by the several states for the disbursement of compensation to world war veterans. This, however, is not a matter with which the court has to do.

When the validity of a statute is questioned, or when its language is not clear, it should be given such a construction as will not deprive the persons interested of a substantial right. Here those entitled to payment from the compensation fund would have been de*289prived of a substantial right, they would have been compelled to wait an unreasonable and indefinite length of time for payment, if the compensation board had not proceeded with promptness, by all available means, to the work of paying the compensation to those entitled to it. A statute which will admit of two interpretations, one valid and the other invalid, should receive the interpretation sustaining its validity. It has often been said that, “Courts should never give construction to a statute which will render it unconstitutional if any other construction is reasonably possible.” (See Hunter v. Coal Company, 245 Iowa, 175, 154 N. W. 1037, L. R. A. 1917 D 15 and cases cited.) It is the duty of the court .to construe as a whole and harmonize, if possible, all valid legislation on • the same subject and a construction making all provisions valid should be adopted if it can be done without violating constitutional limitations. (Dinuzzo v. State, 85 Neb. 351, 123 N. W. 309, 29 L. R. A., n. s., 417.)

The compensation act acknowledges the indebtedness of the state of Kansas to the veterans of the world war in the sum of one dollar per day for each day of service and provides funds to pay the amount. Section 2 authorizes the issuance of $25,000,000 of bonds to provide funds for the purpose set out in section 1, and in a proviso to section 2, direction is given to issue installments of the bonds from time to time as may be necessary to meet the payments of compensation as they are allowed. In section 4 an administrative board, consisting of the officers named in' section 2 and the adjutant general are charged with the administration of the law. The words in the sections referred to, make no specific mention of payment of expenses in administering the fund, but expense must be incurred as a necessary incident to the disbursement of the funds. The purpose of the statute cannot be effectuated without the incident of expense, therefore, when in section 1, the statute creates the debt of one dollar per day and states the purpose of the state to pay that sum, and in section 2, authorizes bonds for the purpose set out in section 1, and in section 4, directs the compensation board to carry out the provisions of the act, it, by implication, authorizes the payment of expenses as a necessary means to effectuate the purpose. Every incident necessary to accomplish the purpose of section 1 inheres in the act itself.

“Wherever a power is given by statute everything lawful and necessary tp *290the effectual execution of the power is given by implication of law.” (State v. A. C. L. R. Co., 56 Fla. 617, 645, 32 L. R. A., n.s., 639.)
“It is elementary that the grant of specific power, or the imposition of a definite duty upon any person or court, confers, by implication, the authority to do whatever may be necessary in order to execute the power conferred, or to perform the duty imposed, and the implied power is as much a part of the statute as if it were written into the body of the act itself.” (Brown v. Clark, 102 Tex. 323, 333, 116 S. W. 360, 24 L. R. A, n.s., 670.)

In The Mayor et al. v. Sands, 105 N. Y. 210, 218, it was said:

“It is a well established principle that statutes containing grants of power shall be construed, so as to include the authority to do all things necessary to accomplish the object of the grant, and to enable the donee of the power to effect the purpose of the act. Domat expresses the idea as follows: ‘All laws necessarily bear with them all the powers or incidents necessary to carry out their intention.’ (Sedgwick Const, and Stat. Laws, p. 245.) Sedgwick says, ‘When a statute commands an act to be done, it authorizes all that is necessary for its performance.’ (Sedgwick, 228.) Potter’s Dwarris states the rule to be: ‘In statutes, incidents are always supplied by intendment, in other words, whenever a power is given by statute, everything to the making of it effectual is given by implication.’ ” (See, also, Brown County v. Barnett, 14 Kan. 627; State, ex rel., v. Younkin, 108 Kan. 634, 196 Pac. 620; State, ex rel., v. Wooster, 111 Kan. 830, 208 Pac. 656; In re Neagle (Cal.), 5 L. R. A. 78, affd. 135 U. S. 1; Endlich on Interpretation of Statutes, § 418; Bateman v. Colgan, 111 Cal. 580; M’Culloch v. State of Maryland, 17 U. S. 4.)

In Young v. Regents of State University, 87 Kan. 239, 124 Pac. 150, it was said:

“It is tlie duty of the court to interpret a statute designed to ameliorate social conditions and promote the general welfare of the people of the state in such a way that it may be upheld and not nullified, if it be possible to do so, and in such a way that the intention of the legislature may be carried out to the fullest extent. A casus omissus should not be acknowledged if by any reasonable interpretation the statute may be read to avoid it.” (See cases cited in Young v. Regents; also, Railway Co. v. Cowley County, 103 Kan. 681, 176 Pac. 99.)

We conclude that the expense of administering the fund is a necessary incident to the disbursement of the fund itself, and falls within the rule that whenever a power is given by statute, everything necessary toward making it effectual is given by implication. The reasonable expenses incident to the administration of the soldiers’ compensation act may be lawfully paid out of the funds available from the sale of the bonds.

3. The question is propounded whether the legislature may, without further submission to popular vote, authorize an additional bond *291issue to cover any insufficiency in available funds to pay the state’s debt incurred by section 1 of the compensation act.

The compensation act, enacted by the legislature of 1921, was submitted to the people for adoption or rejection under sections 5, 6 and 7 of article 11 of the constitution. An examination of those constitutional provisions is proper.

Section 5 reads:

“For the purpose of defraying extraordinary expenses and making public improvements, the state may contract public debts; but such debts shall never, in the aggregate, exceed one million dollars, except as hereinafter provided. Every such debt shall be authorized by law for some purpose specified therein, and the vote of a majority of all the members elected to each house, to be taken by the yeas and nays, shall be necessary to the passage of such law; and every such law shall provide for levying an annual tax sufficient to pay the annual interest of such debt, and the principal thereof, when it shall become due; and shall specifically appropriate the proceeds of such taxes to the payment of such principal and interest; and such appropriation shall not be repealed nor the taxes postponed or diminished, until the interest and principal of such debt shall have been wholly paid.”

Section 6 reads:

“No debt shall be contracted by the state except as herein provided, unless the proposed law for creating such debt shall first -be submitted to a direct vote of the electors of the state at some general election; and if such proposed law shall be ratified by a majority of all the votes cast at such general election, then it shall be the duty of the legislature next after such election to enact such law and create such debt, subject to all the provisions and restrictions provided in the preceding section of this article.”

Section 7 reads:

“The state may borrow money to repel invasion, suppress insurrection, or defend the state in time of war; but the money thus raised shall be applied exclusively to the object for which the loan was authorized, or to the repayment of the debt thereby created.”

It is contended that $25,000,000, the sum named in the law is the limit to which bonds may be issued, without a further vote of the people; that section 1 of the act cannot be considered separate and apart from the rest of the law; that section 2 can only be construed as a restriction on the acknowledgment of indebtedness contained in section 1; that the people, in voting on the compensation question, were voting for a bond issue of only $25,000,000.

The reasons and purposes of a statute and the language used therein must be considered in its interpretation. A construction inconsistent with the reason or purpose should not be given. A reason*292able interpretation should be given in order to accomplish the object-sought to be reached. It must always' be construed with reference to the object in view. (Young v. Regents, supra, and cases cited; Gleason v. Sedgwick County, 92 Kan. 635, 141 Pac. 584; 36 Cyc. 1110, and cases cited; 26 Am. and Eng. Ency. Law, 602.)

The language of section 1 of the act is definite, clear and all inclusive.

“The state of Kansas acknowledges its indebtedness to, and promises to pay to each person . . . who served in the world war in any branch of the army, navy or marine corps . . . one dollar per day for each daj- of his or her entire service.”

The language contains neither exceptions nor discriminations. The plain words of the statute, according to their ordinary signification, solve the question absolutely unless restricted by other provisions of the statute.

Courts will not construe language so as to invalidate an act where it is fairly susceptible of a construction consistent with validity, but will give effect to a legitimate legislative purpose, plainly indicated, if it can reasonably be done. Section 2 authorizes the issuance of $25,000,000 of bonds to provide funds for the purpose set out in section 1, and in a proviso, direction is given to issue installments of the bonds from time to time as may be necessary to meet the payments of compensation as they are allowed. It also contains other directions of an administrative nature. Sections 3 and 4 deal with matters of administration. The provisions of sections 2, 3 and 4 are all of a character which may reasonably be said to have been enacted by the legislature and adopted by the people for the purpose of carrying out and making effective the acknowledged indebtedness specified in section 1. If the language of section 2 providing for the issuance of $25,000,000 of bonds is a restriction on the language of section 1, then the state did not mean what it said when it acknowledged its indebtedness and agreed to pay one dollar for each day’s service. If that view should be adopted, the language should have been, “that the state acknowledges its indebtedness and agrees to pay one dollar for each day’s service, provided $25,000,000 is sufficient for the purpose, and if it is not sufficient, then such part of one dollar per day as the total fund of $25,000,000 will pay, and provided, further, that if the $25,000,000 exceeds the amount necessary to pay one dollar for each day’s service, then, each person so *293entitled, shall receive an additional compensation over and above the one dollar per day.” The contention does not appear sound. Did the legislature intend and did the people vote $25,000,000 as compensation to those entitled under the act, whether it was more or less than one dollar for each day’s service? Or, was one dollar for each day’s service the debt acknowledged, and the $25,000,000 an estimate of the amount required to pay the indebtedness? We think the latter.

A similar situation arose in the state of Washington. $11,000,000 was there provided in an enabling act which was submitted to the people. The bonds were insufficient, and the question of authority to issue additional bonds was submitted to the supreme court of that state. It was held that additional bonds could be issued because the state had incurred a definite and fixed obligation or an obligation that could be ascertained and determined, and therefore, there was authority to provide for the payment without another referendum. The court there said:

“When the act was passed it was impossible to ascertain the exact number of veterans who would be entitled to the additional compensation or the exact amounts 'due to those entitled to it. Those matters, however, were matters of public record, to be determined according to the records of the government of the United States, and when determined the amount necessary to be raised by the sale of bonds was possible to determine. It is a general rule that that is certain which is capable of being ascertained and made certain. The debt, therefore, is already contracted by the legislature . . . The legislature, the people approving at the referendum, contracted the indebtedness and the evident intention of the legislature and the people was that every veteran entitled to the amount fixed by the act should be provided for.” (State, ex rel. Hart, v. Clausen, 117 Wash. 260, 264, 265; 201 Pac. Rep. 30.)

We are here placing an interpretation on an act of the legislature which was submitted to the people. The ballot was in the following form:

“CONSTITUTIONAL QUESTION SUBMITTED — BALLOT.
“To vote in favor of any question submitted upon this ballot, make a cross X mark in the square after the word ‘Yes’; to vote against it make a similar mark in the square after the word ‘No.’
“Shall the following be adopted? .
An act relating to compensation for veterans Yes. □ of the World War. No. □”

The people voted for compensation for veterans of the world war. The act specifically states that the compensation shall be one dollar *294for each day’s service. The $25,000,000 specified in section 2 of the act was an estimate by the legislature of the amount necessary to pay the indebtedness created by section 1. If inadequate, the legislature may take necessary means to provide for the inadequacy. Had it been more than was required no one would have contended that under the plain provisions of section 1 any veteran was entitled to more than one dollar for each day’s service. It is not within the province of this court to say what the legislature shall do, but if it shall be ascertained that there is a shortage of funds to pay each lawful claimant in full, the legislature may adopt such means as lies within its power to make up the shortage. If funds are available it may appropriate the necessary amount. Or, it may levy a tax to raise the amount. Or, it may authorize the issuance of additional bonds for the purpose.

The letter and spirit of the statute are in agreement. We are convinced that it was the intention of the legislature, in enacting the compensation act, to provide payment of one dollar for each day’s service, as specified in the plain language of section 1; that the law proposed the creation of the debt therein specified, which was submitted to the people and by the requisite constitutional majority, acknowledged and adopted.

We conclude that the constitutional provision forbidding the state to incur a debt in excess of a million dollars without a vote of the people was thereby satisfied, and the legislature, without further submission to popular vote, may authorize an additional bond issue to cover any insufficiency in available funds to pay the state’s debt incurred by section 1 of the compensation act.