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POWERS OF THE STATE IN WAR TIME

A legal proceeding was brought to test the constitutionality of the statute giving power to the Commissioner of Excise, with the approval of the Governor, to regulate the traffic in liquor in certain territory during the war.

The Appellate Division of the Second Department unanimously held it constitutional. I quote so much of the opinion as bears upon the question:

“This legislation now attacked is an emergency measure for the safety and efficiency of the enlisted men while in training, and those engaged in munition and equipment services equally important. It is demanded by the high behests of war,' which may call the people to every sacrifice.

Accustomed, as we have become, to the war powers of the Federal government, we are not to overlook the unquestioned war powers still residing in the State. While the State cannot declare war, or in itself carry it on, it is bound to render loyal aid to the general government, in the effective prosecution of the war. After raising the military and industrial personnel, it is still under a duty to safeguard them from evil influence, even when its citizens have been mustered into the Federal military service. The State has also in good faith to co-operate in the national policies for war efficiency.

To win this war, the industrial army in factory, mill, and shipyard may become as necessary as the forces in the field. Industrial masses not having been under military training, however, are therefore in greater need of protection. The State shares with the general government in the duty to safe guard the men taken from their homes, mustered into the Federal service, and assembled in military camps.

But the number, which is now greater, gathered in war industries, are, for the present, dependent for their protection upon the power of the State alone.

Should a narrow and technical judicial policy weaken and annul this beneficent State statute, the result in this,

many a past instance, would necessitate an enlarge ment of federal control so as to bring the general govern

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ment more and more into State affairs. The Draft Act, approved May 18th, 1917, in section 12 authorizes the President to make 'such regulations governing the prohibition of alcoholic liquors, in or near military camps, and to the officers and enlisted men of the army, as he may from time to time deem necessary or advisable. Such control is the more wholesome and, being backed by local sentiment, should be more effective, if administered under the principles of home rule. The vast field of the Washington executive already overburdens the President. He should not be called on to supplement, and certainly not to replace, the proper and legitimate exercise of the police power of New York. It is now settled that, by virtue of its general sovereignty, the United States may take such measures as are necessary to insure peace and order in the performance of any of its functions. Ex parte Siebold, 100 U. S. 371; In re Debs, 158 U. S. 564.

“The occasion for this enactment is not disputed. Conditions threaten to demoralize camps, and to hinder, obstruct and delay the production of needed war material. Sales of intoxicants in this region have also led to serious assaults on government workmen passing through this neighborhood. Suspending the liquor traffic will abate most of these conditions, which otherwise may jeopardize the arming and equipment of transports and other government shipping as well as endangering the efficient output of munitions. The statute should, therefore, be sustained."

PRESERVATION OF SOLDIERS' AND SAILORS' CIVIL

RIGHTS.

'

The Secretary of War, through the Section on Co-operation with States of the Council of National Defense, has requested that I recommend to your Honorable Body the passage of an act staying civil proceedings against soldiers and sailors in the Federal service.

Attached hereto is a copy of a letter addressed to me by the Honorable George F. Porter, the Chief of the Section on Co-operation with States of the Council of National Defense; a letter addressed to Mr. Porter by the Major Judge Advocate, Assistant

to the Judges Advocate General, dated September 27th, and a letter addressed to Mr. Porter by The Honorable, The Secretary of War, dated October 19th.

I recommend a careful study of the report of the Judiciary Committee of the House of Representatives submitted on October 7th, numbered, Report Number 181, and a memorandum before the subcommittee of the Committee on the Judiciary of the United States Senate on the same bill, which contain a very interesting and exhaustive discussion of the provisions of the bill and of the legal questions involved.

There is probably very little question as to the authority of Congress to pass such an act under its war powers, but a more serious question is involved in regard to the power of a State legislature. However, the decision of the Appellate Division heretofore quoted, unless reversed by the Court of Appeals, may be regarded as authority as to the constitutionality of such legislation.

There appears to be no general demand for important changes in our laws or for much new legislation.

From 1866 to 1917, with but short interruption, our country enjoyed peace and escaped the sorrows of war. Under these conditions our statute law was built up. Now, when we are engaged in the greatest struggle that the world has ever known, we may find some changes necessary, but it is well to remember that the statutory law is the result of an evolution covering a number of years and is based on experience.

I am apprehensive lest in the name of patriotism some unnecessary and unwise legislation may be enacted, and I, therefore, urge upon you the greatest care in considering proposed legislation.

While I feel it my duty to call your attention to what this State has accomplished so far in the war, and it is with deep gratification that I do so, I realize, as of course you do, that we are not merely New Yorkers -- we are Americans.

In the Army and the Navy, citizens from every State, sons and grandsons of those who wore the blue and those who wore the gray, the rich and the poor, stand side by side, meet the same danger, endure the same privation, and in the end will share the same victory.

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As in the Army and the Navy our citizens are fighting shoulder to shoulder regardless of former conditions or differences, let us also work together, earnestly and unselfishly striving to the utmost to do not only our bit but our best to insure the triumph of our

cause.

CHARLES S. WHITMAN.

COUNCIL OF NATIONAL DEFENSE

SECTION ON COOPERATION WITH STATES

WASHINGTON, October 6, 1917. Hon. CHARLES S. WHITMAN, Governor, State of New York,

Albany, New York.

DEAR Sir: The War Department has asked us to bring to your attention for consideration by you for recommendation to the New York Legislature an act staying proceedings against soldiers and sailors in the federal service.

The act was presented to Congress late at the present special session. It has passed the House, but it was impossible to bring it before the Senate at this session.

The act is in no wise a rigid or inflexible stay law. The matter of granting a stay is placed entirely in the discretion of the court, but in no case may a stay be granted unless it is shown that the ability of the defendant to meet his obligation has been substantially impaired by reason of his military service.

Certain criticism that has been directed against the Federal Bill, particularly by real estate interests, has evidently been made under a misapprehension as to the provisions of the Bill. The Bill does not allow a soldier or his family to remain in possession of premises for the period of the war without payment of rent. The maximum stay from eviction which can be granted is a period of three months and then only as to premises occupied by the dependents of the soldier where the rent does not exceed $50.00 per month. A provision for an allotment of pay is also made. The provision as to mortgages in its effect is limited to cases where the mortgage is on a home or small business owned by the soldier and still occupied by his family or his employees. The purpose of the Bill has been to exclude anything in the nature of investments.

In spite of the belief that this law will be passed by Congress at the next session, the War Department trusts that the several States will also pass a law as nearly identical as possible with the pro

posed Federal statute. The history of State legislation during the Civil War shows that most States are likely to pass some sort of a “stay law” during the present war.

It is unnecessary to suggest that any protection given a soldier against suit should be uniform throughout the country. It would likewise be unfortunate to have any inconsistency between State and Federal laws upon this subject.

The War Department, therefore, appeals to the same spirit of cooperation by the States of which the States furnished such a remarkable example in connection with the administration and execution of the provisions of the Selective Service Law.

It is, of course, appreciated that the constitutionality of such a stay law as is here proposed, is more questionable if enacted by the States than if by the Federal Government. It is likewise true that many of the statutes of the Civil War were held unconstitutional by the State courts. It is suggested, nevertheless, that these decisions are not controlling at the present time. The State doctrine of police power has had its growth since the days of the Civil War. May not this doctrine be sufficiently elastic to cover a stay law in time of great public emergency?

We are enclosing a copy of the Bill as it passed the House of Representatives and also a copy of certain memoranda concerning the Bill before the Senate sub-committee and the report of the House Committee on the Judiciary.

May we call your attention particularly to pages 6, and 39 to 42 of the memoranda before the Senate sub-committee, You will also find enclosed a copy of a letter from the War Department on the subject.

In view of the appeal to the States made by the War Department for their cooperation, we trust that you may feel it desirable to recommend such legislation to the present special session of the New York Legislature. We shall be glad to know of any action you may take in regard to the matter.

Very truly yours,
GEORGE F. PORTER,

Chief of Section.

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