The following opinion was filed February 8, 1919:
Owen, J.(dissenting). Sec. 4232a, Stats., responds to a plain sense of justice and voices a humane public policy. It was enacted out of consideration for those who were about to leave their homes, their families, and their business affairs to fulfil the highest duties of citizenship. ■ ' It was considered unjust to leave those who were called by the government on a mission of service and sacrifice in the interest of their country and of humanity to the mercy of inconsiderate creditors, arid it' was to save them from default judgments, foreclosure proceedings, forced sales, and their families from unconscionable evictions, that the law was passed. Moreover, in passing the law the state was not without a selfish interest. ' We are in a better position now than at the *344time the law was passed to understand the interest of the state in the welfare of the returning soldier and that of his family during his absence. The state is primarily and ultimately concerned with the care of its citizens and of those dependent upon them. In obedience to this duty the state has expended considerable sums of money during the last two years in the support of the dependents of those engaged in military service. Upon the state falls the financial burden of dependency. Upon the state falls directly the far heavier burden of the demoralization of its citizenry and of the social unrest which attend destitution and the denial of opportunity. The state has a direct interest in preserving the property status ofi those of its citizens who entered the military service so that upon their return they may find their property and their business as they left it and not be relegated to the army of unemployed to become dependencies of the state. As stated in the majority .opinion, a law of this nature was upheld, during the civil war, in Pennsylvania, where it was called “An act to stay proceedings.” Breitenbach v. Bush, 44 Pa. St. 313. That is not an inappropriate designation of sec. 4232a. A more comprehensive designation perhaps would be, “An act to suspend the right of civil process and to stay proceedings.”
The subject is one over which the state has plenary power as an incident of sovereignty, except in SO' far .as it may have been delegated to Congress. The power may be exercised by the legislature, except so far as it is limited by.'constitutional provisions. There are none such, except thos§, relating to special or class legislation. The legislature may suspend the right of civil process against any class of its citizens in the interests of justice and in promotion of the general welfare where the classification is germane to the purposes of the legislation. There is no suggestion that those in- the military service of the United States do not constitute sudh a class. I apprehend, also, that those riot in the military service of the United States, but who. have left their' homes *345and businesses and with humane and patriotic motives engaged in the work of ministration and mercy to- our stricken soldiers, such as nurses of the Red Cross, members of the Salvation Army, representatives of the Y. M. C. A., Knights of Columbus, and similar organizations, would form a legitimate classification for such legislative consideration. If so, then the legislature might grant immunity to the latter class, while, it is held, like consideration cannot be extended to those in the military service of the United States for the reason that the state’s power in this respect has been delegated to Congress. While the result is ironical, the conclusion must be accepted if the premise be well founded. If such power has been delegated, it is by reason of the following provisions of sec. 8, art. I, of the constitution of the United States, declaring that Congress has power:
“[11] To declare War, . . .
“[12] To raise and support Armies, . . .
“[13] To provide and maintain a Navy;
“[14] To make Rules for the Government and Regulation of the land and naval Forces;
“[15] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
“[16] To- provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
“[18] To make all Laws which shall'be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
It will be conceded at once that these provisions do not amount to an express delegation of the power we are considering. At most it amounts to no more than an implied delegation of power to an extent necessary to carry into *346effect the powers expressly granted. Granting that, by implication, the power is delegated to Congress so far as may be necessary to successfully maintain an army and navy and carry on the military activities and undertakings of the government, it can be but a partial delegation oí the power. The rest is reserved to the states. In other words, the power of Congress in such respect is exhausted when it has exercised the same so far as may be necessary for the promotion of its military interests. The power of the state to suspend civil process and to stay proceedings for state reasons, namely, as a matter of simple justice to its citizens, to promote the public welfare, and to secure the state against burdensome dependencies, still remains. The respective interests of the state and federal government in this subject are by no means identical. The purposes to be attained are quite different. The federal government is interested in the individual in his capacity as a soldier; the state government is interested in him in his capacity as a citizen. It seems self-evident that the consideration which the state may extend to its citizens in this respect is not limited by the military necessities of the federal government. The immunity which it may enforce does not mark the limit of immunity which the state may grant. I cannot escape the conclusion that even though the federal government has the power to legislate upon this subject so far as may be necessary in prosecuting its military undertakings, its power is limited to the accomplishment of such purposes, and that power to legislate upon the subject in their own interests and pursuant to their own policies still resides with the states.
But it is held in the majority opinion that the two laws under consideration are in conflict. If this be true, of course the state law must yield. But I confess my inability to discover a conflict. Laws are in conflict when, as pointed out in Southern R. Co. v. Reid, 222 U. S. 424, 32 Sup. Ct. 140, if one obey the state law he incurs the penalties of the federal law, and if he obey the federal law he incurs the penal*347ties of the state law. In other words, they are in conflict when obedience to one involves violation of the other.
“A state statute enacted in execution of a reserved power of the state is not to be regarded as inconsistent with an act of Congress passed in the execution of a clear power under the federal constitution unless the repugnance or conflict is so direct and positive that the two' acts cannot be reconciled or stand together.” Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 18 Sup. Ct. 488.
Such is not the case here. The enforcement of the state statute in no- manner interferes with the accomplishment of the purposes sought by the federal legislation. Both may be enforced, and the accomplishment of the purposes sought by both the federal and state government secured. They may stand side by side, and the presence of one in no- manner detracts from the force of the other.
The majority opinion of the court, as I understand it, proceeds on the theory that the federal enactment is to be construed as covering the subject, thereby excluding any further enactments on the part of the states with reference thereto. This construction obtains where full power to- regulate the subject has been delegated to Congress, such as the power to regulate interstate commerce, and where the federal enactment affirmatively discloses the intent on the part of Congress that its regulation shall be exclusive. But even where full power has been delegated to Congress such intent will not be imputed to the Congressional act unless it clearly appears therefrom. As said in Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92:
“It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifested.”
There is nothing about the phraseology of the federal soldiers’ and sailors’ civil relief act to- indicate such an intent. Neither can it be inferred from the purposes to be accomplished by its enactment. Plainly it was the purpose *348of Congress to secure certain immunity for soldiers and sailors. The securement of such immunity is not hindered by the voluntary action of the state in' granting further immunity. Congress simply demanded such immunity as was required by its military exigencies and, in my opinion, had no power to demand any more. The granting of further relief on the part of the states was of no concern to Congress. Its power was to demand the immunity necessary for its military purposes. It had no power to forbid further immunity on the part of the state. But whether this be true or not, the circumstances under which the legislation was passed furnish no justification for the conclusion that by the enactment of the soldiers’ and sailors’ civil relief act Congress intended to forbid the states from granting further immunity to the special objects of its gratitude, and unless such an intent can be gathered from the act or from the purposes of its enactment, as said in Reid v. Colorado, supra, it will not be so construed.
Where there is a conflict between a state statute and a federal enactment a state court should not hesitate to acknowledge the supremacy of the federal act. The power of a state to enact legislation which it deems beneficial to its own interests, however, should not be lightly yielded. I feel that the decision in this case is a voluntary and unnecessary surrender of a sovereign power. I cannot join in the capitulation.