Carpenter, for the defendants.
I. The vote of the town in March, 1864, was simply and absolutely void. It conferred
no right upon the plaintiff, and subjected the town to no liability. It is incapable
of confirmation. Loyd v. Lee, 1 Strange 94; State v. Richmond, 26 N.H. 232 .
II. The act of 1874, in so far as it undertakes to ratify, confirm, and make legal
and binding upon the town, the said vote of 1864, is retrospective and void. Bill
of Rights, Art. 23; Bristol v. New Chester, 3 N.H. 533 -535; Roby v. West, 4 N.H.
287 ; Clark v. Clark, 10 N.H. 380 ; Towle v. Railroad, 18 N.H. 547 ; Willard v.
Harvey, 24 N.H. 344 ; Morr. Dig. 160 a.
III. But the act is unconstitutional in its prospective operation. The legislature
cannot authorize towns to appropriate the public moneys to any other than public
uses. It cannot authorize them to tax citizens for the benefit of one or more individuals.
The effect of the law is to empower towns by vote to give a certain sum of money
to certain persons, and thus to make taxation unequal, unjust, and oppressive. Bill
of Rights, Arts. 10, 12; Const., Arts. 5, 6; Opinion of the Justices, 4 N.H. 565
.
Bingham Mitchell, for the plaintiff.
I. In the object for which the $300 was exacted and paid, viz., to assist in and
contribute to the suppression of the Rebellion, every citizen and tax-payer in the
defendant town had an equal interest with the plaintiff. The government that was
imperiled was not
for the protection of any one individual or class of individuals, consequently the
burden of upholding it did not fall entirely upon any one class of individuals or
kind of property, but upon all, according to their means and ability. The defendants'
vote in 1864 shows conclusively that they regarded it as a duty incumbent upon them
to share with the plaintiff the burden he was temporarily compelled to assume on
account of the conscription laws of the United States. The vote is also a recognition
of the town's sense of the right and propriety of uniformity in bearing burdens
which were purely for the public good.
II. It is objected that the act of 1874 is unconstitutional, being in its operation
and effect retrospective, and so in conflict with Art. 23 of the Bill of Rights.
That article declares, "Retrospective laws are highly injurious, oppressive, and
unjust. No such laws, therefore, should be made, either for the decision of civil
causes or the punishment of offences." It is apparent that the laws contemplated
by the framers, and the passage of which the people by this article of the constitution
inhibited, were those only which are in their nature, effect, and operation "highly
injurious, oppressive and unjust." This law is not of that description. It simply
enables the town to perform what they considered an act of justice and their duty.
It perfects the plaintiff's remedy, by which he can compel his fellow-townsmen
to share with him a burden incurred by him for their common good. It secures uniformity
and equality in bearing burdens for the public good. The effect and operation of
the law are in every respect entirely consistent with justice.
III. This law being applicable to civil cause, to be inhibited by this clause and
afford no relief in this case must be for "the decision of" it. Does it decide this
cause, in contemplation of the framers of the constitution? If it does not decide
it, or is not for its decision, the law is not unconstitutional. Retrospective laws,
as interpreted by our courts and the courts of other jurisdictions, are such as
destroy or interfere with vested rights. A law which provides a new or additional
remedy is not unconstitutional. The right here involved was not in any way interfered
with by the statute. It existed as truly and justly before the statute as it does
now. The rules by which that right was to be determined, the standard of right and
wrong between the parties, the law did not change. The law gave the plaintiff a
remedy to enforce an existing right. It gave the defendants authority to act in
accordance with their expressed will. It deprived the defendants of no right, but
granted them a privilege. Willard v. Harvey, 24 N.H. 244 ; Rich v. Flanders, 39
N.H. 304 ; 1 Kent Com. 455.
IV. It is also contended that the act, in its prospective operation is unconstitutional,
on the ground that the legislature cannot authorize towns to appropriate public
moneys for other than public uses.
The use for which the money was appropriated or authorized by this statute is public.
It is an appropriation for "public uses," as much as appropriations for the support
and benefit of indigent persons, insane persons, and other classes of destitute
and unfortunate persons. The constitutionality of laws making or authorizing appropriations
for these purposes is never questioned.
It is also an appropriation for public use, and of the same class as those made
and authorized to pay bounties to soldiers who volunteered, and to pay the commutation-money
of those who might be drafted. The constitutionality of acts authorizing these appropriations
has never been questioned. Crowell v. Hopkinton, 45 N.H. 9 ; Stone v. Danbury, 46
N.H. 139 ; Upton v. Stoddard, 47 N.H. 167 .
V. A town, under our laws, is a corporation created by the legislature. It enjoys
and can exercise such powers only as are specifically granted by the legislature.
Being creatures of the legislature, the legislature can change, divide, and finally
abolish them. By virtue of its powers over them the legislature can relieve them,
and also impose burdens upon them. In short, towns are but a part of the machinery
of the state government, exercising important functions, which are regulated and
controlled by the legislature. Berlin v. Gorham, 34 N.H. 266 ; Bristol v. New Chester,
3 N.H. 534 ; State v. Canterbury, 28 N.H. 218 ; Londonderry v. Derry, 8 N.H. 320
.
The constitution vests the legislature with supreme legislative powers. Art. 2 of
the Constitution. To the legislature has also been "given and granted full power
and authority * * * to impose and levy proportional and reasonable assessments,
rates, and taxes upon all the inhabitants of and residents within the said state."
Art. 5 of the Constitution. The legislature, in 1862, authorized towns to raise
and appropriate money to pay bounties, as an encouragement to volunteers to enter
the military service. Laws of 1862, c. 2580, s. 3.
In Crowell v. Hopkinton, 15 N.H. 9 , the court gave a construction to this law,
but did not question its constitutionality, or the legislative power to pass it.
Nor was it questioned in subsequent adjudications under this act, in Huntress v.
Stratham, 46 N.H. 409 , and Stone v. Danbury, 46 N.H. 141 . The act of the legislature
in 1864 authorized the raising of money to pay bounties to volunteers and drafted
men. Laws of 1864, C. 4023, s. 7. Upton v. Stoddard, 47 N.H. 168 , was an adjudication
under this act, but neither its constitutionality nor the legislative power was
questioned. Neither were these questions raised in Hilliard v. Stewartstown, 48
N.H. 280 , Kidder v. Stewartstown, 48 N.H. 290 , or Knowlton v. Sanbornton, 48
N.H. 333 .
The legislature, in 1864, passed an act authorizing and empowering towns to raise
and appropriate money for military purposes; and the operation of one section of
that act had the same effect as
the act in question, so far as votes of towns passed previous to its enactment:
"Any city or town having, at a meeting duly called for that purpose, and held prior
to the passage of this act, voted to pay its soldiers a sum not exceeding the amount
herein authorized, is hereby empowered to raise and appropriate the sum voted, in
the same manner as if the meeting had not been called or held till after the passage
of this act." Laws of 1864, c. 4026, s. 2. There is no suggestion in any of the
decisions that this section was retrospective, or beyond the power of the legislature.
As to the power of the legislature to enact laws of this character, we call attention
to Baldwin v. North Branford, 32 Conn. 47 ; Booth v. Woodbury, 32 Conn. 118 .
These are cases directly in point. The act authorized towns to confirm and ratify
votes to pay commutation-money, which were passed before the law. If the legislature
can authorize a town to confirm a void vote, it is clear, we submit, that the legislature
can itself confirm it.
In People v. Flagg, 46 N.Y. 401 , the court held that the legislature might compel
a municipal corporation to make improvements, without the consent of its authorities
or a vote of its citizens; also, that it might direct the corporation to levy a
tax to pay for such improvement. State v. Tappan, 29 Wis. 664 , has no application
to a question like the one here. The law there in question was special, and special
laws are inhibited by the constitution of Wisconsin.
VI. When it is within the power of the legislature to grant a corporation authority
to do a certain act, if the corporation does it without the authority, the legislature
may waive the objection, and ratify and confirm the act by a subsequent statute;
and such subsequent ratification gives to the act the same force and validity it
would have had if the authority preceded it. Richards v. Railroad, 44 N.H. 136
; Thomson v. Lee County, 3 Wall. 327; The People v. Mitchell, 35 N.Y. 551 ; Pierce
on Railroads 511. The legislature of Pennsylvania passed a law which cured fatal
defects in the acknowledgments of deeds which were made and executed prior to its
passage.
The courts of the United States and Pennsylvania held the law constitutional and
within the power of the legislature. Watson v. Mercer, 8 Pet. 88; Barnet v. Barnet,
15 Serg. R. 72; Tate v. Stooltzfoos, 16 Serg. R. 35. The legislature of Rhode Island
confirmed and ratified an executor's deed, thereby making it good. The court held
that it was within the legislature's power to do it. Leland v. Wilkinson, 10 Pet.
294.
Carpenter, for the defendant. Second brief.
It is not pretended that the vote of the town in March, 1864, conferred any right
upon the plaintiff, or subjected the town to any liability. It is admitted that
the town had no jurisdiction of
the subject-matter, had no power to pass the vote, and that the plaintiff must recover,
if at all, solely by virtue of the effect of the statute.
I. I reaffirm the position taken in my first brief, that the act in question, in
so far as it undertakes to ratify and confirm the vote or make it binding upon the
town, or in so far as it undertakes to compel the town to pay the money to the plaintiff,
is void under Article 23 of the Bill of Rights, which forbids the making of retrospective
laws.
That this statute has a retrospective operation, that it creates and fixes upon
the town of Landaff a new obligation in respect to transactions and considerations
already past, is altogether undeniable, and, indeed, is not, as I understand it,
questioned; but it is said that this clause of the constitution has no application
to public or municipal corporations, "that the prohibitions of the constitution
were most manifestly intended to protect private rights only" — Richardson,
C. J., in Dartmouth Coll. v. Woodward, 1 N.H. 120 ; that "acts of the legislature
are not within the prohibitions, unless they operate on the interests of individuals
or private corporations" — Woodbury, J., in Merrill v. Sherburne, 1 N.H.
213 ; that, in fact, all the powers and rights of municipal corporations are "wholly
at the legislative disposal (a doctrine dangerous in government, and, as we think,
unsound in constitutional law)." Cooley Taxation 481. Towns can neither be compelled
nor authorized to raise by taxation, or to appropriate money, for any except public
purposes. Perry v. Keene, 56 N.H. 514 .
Assuming, then, for the purposes of this question, that the money was paid by the
plaintiff for such a purpose that the legislature might, by antecedent legislation,
have authorized or compelled the town to pay it, I maintain that it cannot by subsequent
legislation compel the town to repay it to the plaintiff. That the statute, in so
far as it has any effect upon the defendants in this case, is compulsory seems plain,
because the town at the time of the vote was by law incapable of having or expressing,
in any form, by vote or otherwise, any sentiment or choice upon the subject. Wilson
v. School-District, 44 Conn. 157 .
The vote cannot fairly be considered indicative, even, of the personal sentiments
of those voting. It must be presumed that the citizens knew the law, and knew therefore
that they had no power in the premises, and that any vote they might pass would
be utterly void of effect, — in short, that it was a matter of entire and
absolute indifference to themselves and to everybody how they voted, or whether
they voted at all. But if such was the personal wish of all the voters at the time
of the vote, non constat that it was so at the time of the passage of this act more
than ten years afterwards.
The position in which the town finds itself appears to me very remarkable. If, at
the time the vote was taken, the town had had
jurisdiction of the subject-matter, — if the vote had been legal, —
it might have been rescinded or reconsidered before actual payment, at any subsequent
legal meeting called for that purpose. Dale v. Governor, 3 Stewart (Ala.) 387. And
in that event there would have been no "vote" upon which the statute could operate.
A legally rescinded vote would not be a "vote heretofore passed," etc.
But a void vote cannot be reconsidered or rescinded. It was not in the power of
the town to make their action any more void, any less effectual, any less a "vote
heretofore passed," etc., than it already was. No matter, then, what may have been
the sentiment of the town, there was no possible escape from the effect of this
statute.
For these reasons it seems clear that the vote is entirely immaterial, except in
so far as it serves to identify the towns to which this portion of the statute was
intended to apply. The legislature might just as well, so far as giving the citizens
of the town any voice in the matter is concerned, have declared that all those towns
shall pay, etc., which are less than six miles square, which gave a Republican or
Democratic majority at the last election, or all those towns whose names begin with
L.
Returning, then, to the question whether the legislature has constitutional power
to impose burdens upon towns or municipal corporations by retrospective legislation,
I submit, —
1. Towns existed prior to the constitution. They were then and have ever since continued
to be corporations, endowed by law with the power of holding and owning property,
making contracts, and of suing and being sued in courts of justice, and every dollar's
worth of property within their limits, to whomsoever belonging, is directly (and
not merely indirectly, by means of taxation) pledged for the performance of their
legal obligations. Gen. St., c. 220. Why should they not be protected by all the
guaranties of the constitution, which in their nature are applicable to them? Was
not the constitution ordained for the benefit of all the subjects of the state,
artificial as well as natural?
Of course municipal like private corporations, being mere legal entities, without
personality, have no occasion for the protection of the person, or of personal rights.
The only rights they possess or can possess capable of being invaded are proprietary
rights. Those parts of the constitution which relate to personal rights merely,
can, from the nature of the case, have no application either to private or public
corporations. But why do not its provisions respecting rights of property apply
not merely to those of natural persons and private corporations, but as well to
those of public corporations, those of every entity within the state, endowed by
law with the capacity of holding and owning property for any purpose whatever? There
are no express exceptions: upon what ground, upon what sound principle, is one to
be implied? Is there
any difference between strictly private rights and property and the property and
rights of municipal corporations in this state, except in the purposes for which
and to which they may be lawfully exercised and appropriated?
2. It is contended, that inasmuch as the legislature has power to create, change,
or abolish towns, it therefore has full and unrestrained power over all their property,
and all their rights of property, during their existence as corporations. But (1)
the argument proves too much. The legislature has the same power over strictly private
corporations. Gen. St., c. 133, s. 18. (2) The reasoning is false. It does not follow,
because the legislature can at its pleasure make and unmake a municipal corporation,
that when created, and during its existence, such corporation has no rights beyond
legislative control; nor does the right to abolish include, as being the less, the
right to appropriate the effects of the deceased, either before or after dissolution.
Portland v. Portland, 23 Conn. 255 -272; Willimantic v. Windham, 14 Conn. 468 , 469
; Bristol v. New Chester, 3 N.H. 535 ; Atkins v. Randolph, 31 Vt. 226 ; Story,
J., in Terrett v. Taylor, 9 Cranch 52 (3 Curt. 256); Story, J., in College v. Woodward,
4 Wheat. 664 (4 Curt. 505); Brunswick v. Litchfield, 2 Greenl. 28; Bowdoinham v.
Richmond, 6 Greenl. 112; Grogan v. San Francisco, 18 Cal. 590 ; Windham v. Portland, 4
Mass. 390 ; Hampshire v. Franklin, 16 Mass. 76 ; 1 Dill. Mun. Corp., ss. 36-41;
Cooley Const. Lim. (4th ed.) 289-295, and notes.
3. It is not necessary to deny that the legislature may impose burdens upon the
state by retrospective legislation, and levy taxes for their discharge. The restrictions
of the constitution are directed against the power of the state over its subjects,
not over itself. However that may be, this particular clause, by express terms,
excludes any idea of its application in such case. There can be no "civil cause"
against the state. The tax itself can never be the subject of a civil action. The
town could not have a "civil cause" for the recovery of the taxes, nor could any
suit be brought against them, so far as I know, on account of the taxes; and for
this reason the act is, quoad the town, unobjectionable. Richardson, C. J., in Bristol
v. New Chester, 3 N.H. 534 ; Hibbard v. Clark, 56 N.H. 155 .
4. None of the very numerous cases, sustaining retrospective legislation in those
jurisdictions where there is no constitutional prohibition, need be examined or
questioned here. "There is no doubt of the right of the legislature to pass statutes
which reach back to and change or modify the effect of prior transactions, provided
retrospective laws are not forbidden, eo nomine, by the state constitution." Cooley
Const. Lim. (4th ed.) 461. The great importance of knowing and keeping in mind the
constitutional provisions of the several states when examining the decisions of
their courts upon this question, and the grave liability of falling into error unless
one does so, are clearly shown by Bellows, J., dissenting, in Rich v. Flanders, 39
N.H. 386 -391.
5. In New Orleans v. Clark, 95 U.S. 644 , Field, J., who delivered the opinion,
fell into the error of treating judicial decisions in jurisdictions where retrospective
legislation is not prohibited, as apposite and authoritative in those where it is.
To say that "a law requiring a municipal corporation to pay a demand (preexisting,
of course) which is without legal obligation, but which is equitable and just in
itself, being founded on a valuable consideration received by the corporation, is
not a retroactive law," is, I submit, sheer and utter nonsense. What has the justice
or injustice of the demand to do with the question whether the law is retroactive
or not? If Judge Field means to say that only such retroactive laws as may happen
in the opinion of the court to work injustice and oppression are forbidden, then
I want to know where in the constitution of Louisiana he finds that limitation?
In many of those states where retrospective legislation is not expressly prohibited,
laws of that character, which appear to the courts to be repugnant to the principles
of natural justice, have been for that reason held invalid; but acts of that character,
which appear to the court just and reasonable, are upheld. Rights are not regarded
as "vested contrary to the equity of the case." Cooley Const. Lim. 460-479, and
cases above cited. But in this state the question does not turn upon the "substantial
equity" ( 53 N.H. 580 ) of the particular case. The constitution prohibits not merely
such retrospective laws as may happen to appear to the court "injurious and oppressive,"
but all such laws "for the decision of civil causes," whatever their end or particular
effect may be. Whether therefore, there was "any executed contract, any consideration
or benefit received by the defendant, or any change of plaintiff's position, on
which justice upholds the retrospective character of the statute," is entirely immaterial.
6. The provision of the constitution of the United States, that no state shall pass
any law impairing the obligation of contracts, was early held to protect not merely
individuals, but all municipal as well as other corporations, — in short,
every entity within the United States endowed by law with the capacity to make a
contract. Fletcher v. Peck, 6 Cranch 87; Green v. Biddle, 8 Wheat. 1-92. The reasoning
used in those cases is equally applicable here.
In Spaulding v. Andover, 54 N.H. 38 , it was held that this clause is applicable
to contracts between the state and municipal corporations. Why should a different
construction be given to the clause under consideration in our own constitution,
from that put upon the federal constitution? The language is equally general in
each. Upon what ground, upon what sound principle of construction, is it to be held
that the "civil causes" of towns are not protected by our own constitution against
retrospective legislation, while their contracts are protected by the federal constitution
against impairment?
8. The holding of our own court has been uniform, that municipal
corporations are as entirely within the protection of the constitution as are natural
persons. To this point the following cases were cited and commented on: Richardson,
C. J., in Bristol v. New Chester, 3 N.H. 524 ; Londonderry v. Derry, 8 N.H. 320
; Dunbarton v. Franklin, 19 N.H. 257 ; Kennett's Petition, 24 N.H. 139 ; Pembroke
v. Epsom, 44 N.H. 113 .
Towns are under the protection of Art. 15 of the Bill of Rights, and cannot "be
held to answer for any offence, until the same is fully and plainly, substantially
and formally, described." State v. Canterbury, 28 N.H. 195 , 228 . Under Art. 20
the right of trial by jury is secured to them. Copp v. Henniker, 55 N.H. 179 .
Suppose that a Mr. Jones erected at his own expense a bridge over the Connecticut
river at Bath, and maintained the same for many years to the great benefit of the
public generally, and of the citizens of Bath especially, until it was carried away
by the last freshet: can now the legislature compel the town of Bath to refund to
Mr. Jones the cost, or any part of the cost, of his bridge?
Suppose a father, not of "sufficient ability," has nevertheless, in fact, supported
his pauper son for many years: can the legislature compel the town in which the
pauper has his settlement to repay the father for such support? How is this case
to be distinguished from the one at bar, assuming that the town, as such, is bound
to fill its quota? The subject-matter in each case is equally one of public concern,
and the town is equally benefited in each case, equally relieved from a public burden.
If the legislature cannot take away from a town a vested right of action (Pembroke
v. Epsom, above cited), how can it take away a vested right of defence? —
how can it make that a legal claim which before was not? Could it make the bond
given by Boscawen to Canterbury, which in a suit thereon between those towns ( 17
N.H. 465 ) was held void by the court, a valid bond, legally obligatory upon the
defendant town? — or Epping liable to Gove ( 41 N.H. 539 ) for costs of the
criminal prosecution against him? If it could, could it do so as well after ( 1
N.H. 213 ; 10 N.H. 380 ) as before judgments rendered in said suits? If it could
not, then clearly it could not remove the bar of the statute of limitations; and
(provided the statute in question is sustainable) the case presents this notable
feature, that the town, by attempting what it had no power to do, by its void action
is put in a worse condition than it would have been had it possessed full power,
and its action been legal and valid; for in that case the plaintiff's claim would
have been barred by the statute long before the passage of this act.
II. Upon a just and reasonable construction of this statute, upon such a construction
as the legislature intended, the plaintiff's claim is barred by the statute of
limitations.
III. The legislature could not under the constitution, by antecedent legislation,
authorize towns to pay commutation-money in order to
relieve their citizens from the draft, because the purpose for which the money was
to be paid was not a public one.
One's property can be taken under neither the power of eminent domain, nor that
of taxation, for any purpose except for public uses, in the strict sense of the
term, — that is to say, for the use of the public, — so that the whole
public in fact have, or are legally entitled to have, the direct and immediate benefit
and enjoyment of the appropriation, whether it be of property or of money; and for
whatever use one's property may be condemned, his estate may be taxed, and for
no other, and vice versa. All attempts to draw any sound distinction between these
two powers, so far as relates to the purposes for which they may be exercised, have
signally failed. Accordingly, as was to be expected, we find the court which first
upheld the "Mill acts," so-called, when at length confronted with the question whether
taxes may be levied for the same or similar purposes, very sensibly and wisely denying
that those acts can be sustained as an exercise of the power of eminent domain,
but claiming, with a fatuity not expected, that they may be supported upon other
grounds certainly no better: if they are no worse, it is only because they could
not be. Lowell v. Boston, 111 Mass. 454 .
To distinguish between a strictly public and a private use may not in every case
be altogether easy. The general distinction taken by the cases, and, though often
difficult of application, the only one which the nature of the question seems to
admit, is between the direct, primary, and immediate, and the remote, indirect,
consequential, or incidental, effects of the particular use in question. In other
words, the character of any given use is in general determined by its primary and
direct object or effect, without regard to incidental results. Wells, J., in Lowell
v. Boston, 111 Mass. 461 , 462 ; Opinions of Judges, Dickerson, J., especially
in 58 Me. 590 ; Miller, J., in Association v. Topeka, 20 Wall. 664; Curtis v. Whipple, 24
Wis. 353 , 354 ; Folger, J., in Weismer v. Douglas, 64 N.Y. 100 , 101 ; Allen
v. Jay, 60 Me. 124 ; Bank v. Iola, 2 Dill. 353; Tyson v. Directors, 51 Pa. St.
9; Tyler v. Beacher, 44 Vt. 648 ; Cooley, J., in People v. Salem, 20 Mich. 488
; Christiancy, J., in People v. Salem, 20 Mich. 500 ; Bigelow, C. J., in Freeland
v. Hastings, 10 Allen 589.
It is a mistake that towns, as such, in their corporate capacity, were under obligation
to fill the quotas assigned to them: and this fallacy underlies the whole of the
plaintiff's argument. The language used by courts in some cases (for the most part,
but not always, alio intuitu) lends perhaps some color to the idea, but it is plainly
without foundation. The following cases — Butler v. Putney, 43 Vt. 484 ;
Seymour v. Marlboro, 40 Vt. 178 ; Taylor v. Thompson, 42 Ill. 16 ; and especially
Wilson, J., in Laughton v. Putney, 43 Vt. 493 -497 — afford good examples
of the general patriotic looseness of language used by courts on this point.
Congress has no power to impose the duty of furnishing men for
military service either upon any state, or upon any corporate subdivision of a state.
Constitution, Art. I, s. 8; Houston v. Moore, 5 Wheat. 1; Martin v. Mott, 12 Wheat.
19. It cannot even impose a tax upon a state municipal corporation. Collector v.
Day, 11 Wall. 113.
Moreover, towns had no power to perform such a work. That congress cannot impose
duties upon a municipal corporation created by the state, possessed of no powers
except such as it has conferred, and liable to dissolution at any minute, which
that corporation has by law no power to perform, seems tolerably clear without discussion.
But however that may be, congress did not undertake to do so. The first law passed
by congress during the late war, for the purpose of filling up the army otherwise
than by volunteers, was the act of March 3, 1863, which provides that "For the greater
convenience" of enrolling, etc., the United States shall be divided into districts,
of which each congressional district shall constitute one, and that the board of
enrollment may divide each district into sub-districts; that the president may assign
to each district the number of men to be furnished by said district, and in doing
so shall take into consideration the number of volunteers furnished by and from
the several states in which said districts are situated, and the period of their
service, so as to equalize the numbers to be furnished among the several states.
Under this law the plaintiff was drafted, and paid $300 to obtain his release, in
accordance with the provisions of s. 13.
The act of February 24, 1864, in amendment of the foregoing, provides "that the
quota of each ward of a city, town, township precinct, or election district, etc.,
shall be as nearly as possible in proportion to the number of men resident therein
liable to military service, taking into account as far as practicable the number
which has been previously furnished therefrom." Obviously congress makes use of
the various civil divisions of the several states as a pure matter of convenience
only, and entirely without regard to the fact whether such divisions are endowed
with corporate powers of any kind or not. It might, in fact it did, create districts
entirely independent of town or county lines, or of any other existing lines, and
assign quotas thereto. The acts operate, and purport by their express terms to operate,
only upon the individuals of the districts liable to render military service, —
the enrolled men, — providing that out of the number resident in a district
a proportionate number shall be drafted into the service. See Lyon, J., in State
v. Tappan, 29 Wis 673 .
The legal obligation to fill the quota assigned to Landaff rested therefore solely
and exclusively upon a particular class, namely, the men liable to render military
service, and resident therein. In the filling of that quota no other citizen of
the town had the remotest legal interest or concern. It may indeed be said that
it was a matter of vital interest to all the citizens that those who were under
that legal obligation should perform it. But it may be pertinently asked, Upon what
sound principle of public policy, even, can be justified the appropriation of the
public moneys to "encourage" a class of men to perform an obligation imposed upon
them by law?
But until the draft was actually made, the legal obligation of each individual of
the enrolled men to enter the service was not fixed and absolute, but inchoate,
uncertain, and contingent; and inasmuch as the general duty of national defence
rests upon all citizens alike, and not merely upon any one class, and no more upon
enrolled men than upon anybody else until actually drafted, it may perhaps with
some slight color of reason be held, as it has been in numerous cases, that towns
may be authorized to encourage enlistments, and to pay bounties to volunteers for
that purpose, the direct object and primary effect being to aid in the discharge
of a burden common to all, although it may have the incidental effect also of relieving
a particular class of persons from a legal liability. It happens to benefit a class
of men more than it does others, as every public measure from the nature of things
must.
This question has apparently never received any consideration at the hands of this
court, although numerous suits against towns for bounties have come before it. In
Crowell v. Hopkinton, 45 N.H. 9 , the first reported case on the subject, the question
of the constitutionality of the law authorizing bounties was not raised; but Bell,
J., says "It forms no part of the ordinary duties of towns to encourage the enlistment
of soldiers, by bounties or otherwise. They may be specially authorized by statute,
perhaps, to raise money by tax or loan, and to apply it to such purposes, or they
may be required to perform duties of that kind;" and the opinion contains not another
word on the subject.
In Shackford v. Newington, 46 N.H. 415 , the position was for the first time taken
that the law was in violation of the constitution. The court, Bellows, J., at the
close of the opinion, disposes of the objection in these words: "It is urged that
the legislature had no power under the constitution to authorize towns to raise
money to pay bounties to volunteers: but in the case of Crowell v. Hopkinton ( 45
N.H. 9 ), before cited, it was held that such a vote by a town was valid; and we
are satisfied with that opinion." In all the other cases the question is passed
sub silentio, without the remotest allusion to it.
Laws authorizing the payment of bounties to drafted men, who either enter the service
themselves or procure substitutes, stand in some respects upon the same footing
as those authorizing bounties to volunteers, — both tending alike to fill
up the army, and promote the national defence. But the act in question has in its
favor not even the feeble apology which exists in behalf of the bounty laws. Manifestly
the payment by towns of commutation-money, so far from encouraging enlistments would
have a direct tendency to discourage them. One strong inducement to volunteer arose
from the
liability to be drafted, and thus being compelled to serve without any bounty. The
idea advanced by the plaintiff, that commutation-money was received by government
as the equivalent for a substitute, is entirely groundless. "So far from being equivalent
to personal service, the payment of the money was imposed as a fine for not rendering
such service." Dickerson, J., in Thompson v. Pittston, 59 Me. 554 . It would tend
also to prevent drafted men themselves from entering the service, and the act would
therefore be "void as obstructing the general government in performing its functions,
and as tending to defeat the operation of the act of congress of March 3, 1863;"
and so it was held in State v. Jackson, 33 N. J. 450 .
[Special attention was called to the reasoning of the court in the last case; also
to the language of the court in Thompson v. Pittston, 59 Me. 545 , Kelly v. Marshall,
69 Pa. St. 319, and Freeland v. Hastings, 10 Allen 589.]
By the "draft, the obligation of the drafted man becomes fixed and absolute: payment
of the commutation-money by the town has the effect to release him entirely from
that obligation. Now, whether towns can be authorized to pay bounties in order to
stimulate men to perform duties imposed upon them by law or not, I insist that they
cannot be permitted to appropriate money for the purpose of releasing a man from
a duty which is by law incumbent and fixed upon him; and it makes no difference
whether that duty be to pay money or to do something else, or whether the money
to be paid or the act to be done will or will not promote the general good, and
be of public benefit. Admitting that it is for the public benefit that a drafted
man should pay his $300 to the government, it does not therefore follow that it
is for the public good that the public should pay it for him.
Assuming even that it were incumbent upon towns in their corporate capacity to fill
their quotas, the payment of the commutation-money for a drafted man does not benefit
them in the remotest degree. What difference can it possibly make to the town whether
it is paid or not? If not paid, the man enters the service; if it is paid, he escapes;
— but the quota — the number of men to be furnished by the town —
remains the same in either case.
Finally, I submit that nobody is benefited by the payment of this money except the
man who pays it. If towns can be authorized to pay it, they can be authorized to
pay any and every other claim which government may have. If not, why not? Why not
the bond of a defaulting post-master? Why may they not be authorized to pay all
the income tax assessed upon their inhabitants? A, who was assessed $300 as an income
tax, was under no more obligation to pay it than was this plaintiff, being drafted,
to pay his $300, or enter the service, or procure a substitute; and so far as the
public is concerned, the payment in each case had precisely the same effect. Neither
the town as such, nor the enrolled
men therein, derived any other or further advantage from the $300 paid by this plaintiff,
than did all towns and all citizens within the united States, — exactly the
same, namely, as they all received by reason of the payment by A of his income tax.
Such a law is in violation of those provisions of the constitution which require
that all taxation shall be equal. Opinion of Justices, 4 N.H. 565 .
As already shown, money paid as commutation is of no special local benefit. The
town which pays it and its citizens receive no more advantage, directly or indirectly,
than an adjoining town which does not pay it and its citizens.
A tax, in the benefits and advantages of which all the people throughout the entire
state equally participate, in order to be equal, must be assessed equally upon all
the persons and estates within the state. It will not probably be contended that
the legislature could compel one or more towns to pay the whole state debt, or to
build the new state prison. Can it any more authorize towns to contribute towards
the payment of the debt, or the building of the prison, as a majority of the legal
voters therein may see fit? If the town of Landaff, by a bare majority, votes to
pay the whole debt, must the minority submit? How can, the legislature confer upon
such majority a power which it does not itself possess? If the vote were unanimous,
the case might be different — volenti non fit injuria. Cypress Pond Co. v.
Hooper, 2 Met. (Ky.) 350, Ferguson v. Landram, 1 Bush. (Ky.) 565. The question is,
whether those who dissent can be compelled to pay a tax of this nature, which all
the citizens of all other towns are permitted to escape. The guaranties of the constitution
are provided for the safety and protection of minorities: majorities do not need
them.
The authorities in support of this argument are numerous. Cooley Taxation 104, et
seq.; Cooley Const. Lim. 613-617; Ferguson v. Landram, 1 Bush. (Ky.) 548; Merrick
v. Amherst, 12 Allen 504; Dorgan v. Boston, 12 Allen 235-238; Oliver v. Washington.
Mills, 11 Allen 275. [The following authorities were quoted from at considerable
length: Cooley, C. J., in Ryerson v. Utley, 16 Mich. 276 ; Black, C. J., in Sharpless
v. Philadelphia, 21 Pa. St. 168, 171; Sharswood. J., in Hammett v. Philadelphia,
65 Pa. St. 151, 153; Seely v. Pittsburgh, 82 Pa. St. 367, 368.] See, also, Wagner,
J., in McCormack v. Patchin, 53 Mo. 36 ; State v. Haben, 22 Wis. 660 ; People
v. Salem, 20 Mich. 452 ; Bank v. Hines, 3 Ohio N. S. 15; Sanborn v. Rice Co., 9
Minn. 273 ; 2 Kent Com. 331, 332.
IV. If the legislature can authorize the payment of commutation-money in the case
of future drafts, it cannot authorize a refunding of such moneys paid by individuals
in the past for the purpose of procuring their discharge, and without any expectation
or promise of reimbursement, because "such repayment by the public could be nothing
else than an appropriation of public moneys to a private purpose." Cooley Taxation
101.
V. But if towns may be authorized to refund such moneys, they cannot be compelled
to do so. [This point was fully argued, and the following authorities cited: Cooley
Const. Lim. 284, and cases in note; Cooley Taxation 474-495, and cases cited; Tyson
v. Directors, 51 Pa. St. 22; Grim v. Weissenberg, 57 Pa. St. 433; Perkins v. Milford, 59
Me. 315 ; Thompson v. Pittston, 59 Me. 545 ; Kelly v. Marshall, 69 Pa. St. 319;
Ferguson v. Landram, 1 Bush. (Ky.) 548 — S.C., 5 Bush. 230; People v. Detroit,
28 Mich. 228 , State v. Tappan, 29 Wis. 664 ; Freeland v. Hastings, 10 Allen 570;
Booth v. Woodbury, 32 Conn. 118 ; Waldo v. Portland, 33 Conn. 363 ; State v. Jackson, 33
N. J., 450 .]
VI. But even if all towns throughout the state may, by a general law, be compelled
to refund such moneys, one or more towns cannot be singled out and compelled to
do so while all others are left to do as they please.
1. It is emphatically class legislation, — selecting particular individuals
from a class or locality, and subjecting them to peculiar rules, or imposing upon
them special obligations or burdens, from which others in the same class or locality
are exempt. Cooley Const. Lim. 490, et seq., and notes and cases cited. It is not
a "general law in relation to a particular place." The objection here is, not that
the law "does not extend to all places," but that it "does not extend to all persons"
of the same class. Scott v. Willson, 3 N.H. 321 ; Opinion of Justices, 4 N.H.
572 -574.
2. It makes taxation unequal. All which has been hereinbefore urged upon this subject
is with even greater force applicable here. This court has held that the legislature
cannot constitutionally grant a tax upon a particular town, for the purpose even
of making or repairing highways therein. Opinion of Justices, 4 N.H. 565 .
VII. Upon the supposition that the statute is not in conflict with the constitution,
I submit that the effect of the vote, assuming it to be valid, either in the first
instance or made so by the statute, was not to subject the town to any liability,
but simply to impose a legal obligation upon the selectmen.
1. It is not pretended that the town owed the plaintiff anything, or was under any
obligation to him whatever before the vote was taken. We have none of the elements
of a contract. The consideration, if any, was past and executed. If the plaintiff
had rendered any service to the town, it was done long before the vote, of his own
motion, and not at the request of the town. Whatever liability, then, rests upon
the defendants arises solely from the vote. But (1) the vote does not purport to
subject the town to any liability. It simply instructs the selectmen to pay the
plaintiff $300. (2) A vote of a town, instructing their officers to pay what they
are under no obligation to pay, manifestly cannot convert the proffered bounty of
the corporation into a subsisting debt against it. Clearly, until payment is actually
made, the instructions may be revoked.
Dale v. Governor, 3 Stewart (Ala.) 387; Terrett v. Sharon, 34 Conn. 105 -108; Paine
v. Boston, 124 Mass. 486 . But even if that be not so, if by the vote the duty
of the selectmen to pay is irrevocably fixed, how can their neglect or refusal to
perform that duty give to the object of the town's bounty a cause of action against
the corporation?
2. The statute, by "ratifying, confirming, and making legal and binding" votes previously
taken, cannot certainly be construed as giving to such votes any greater force or
obligation than to votes subsequently passed under the authority conferred by the
same statute. But a subsequent vote to refund the money would impose no legal obligation
upon the town to do so. Cole v. Bedford, 97 Mass. 326 , note. Both of these cases
go upon the simple ground that a vote of a town, under due authority conferred by
statute, to refund to individuals moneys paid by them under such circumstances,
does not confer upon them any right of action against the corporation. In other
words, such a vote, assuming it to be a promise, has no greater effect than the
promise of a natural person to make a present to his neighbor. Usher v. Colchester, 33
Conn. 567 , is (so far as respects this particular point) identical with this case.
Terrett v. Sharon, 34 Conn. 105 , goes to precisely the same point, although there
was in that case a vote of rescission. See, also, Paine v. Boston, above cited.
VIII. The plaintiff has mistaken his remedy, if he has any. If any action at law
would lie against the defendants, it must, upon general principles, be debt and
not assumpsit. But the liability of the town, as well as that of their officers
by reason of it, is still to be measured by the terms of the vote itself; and, as
already argued, the most that can be said is, that, by means of the vote and of
the statute confirming it, the legal duty of the selectmen to pay this plaintiff
$300 became and was irrevocably fixed and absolute. If the selectmen neglect or
refuse to perform that duty, they may be punished by indictment. Gen. St., c. 244,
s. 20; State v. Hoit, 23 N.H. 355 . The remedy to compel the performance of that
duty is by mandamus, and that is the only remedy open to this plaintiff. Hall v.
Somersworth, 39 N.H. 511 , and cases cited; Treat v. Middletown, 8 Conn. 243 -246;
2 Dill. Mun. Corp., c. 20, ss. 662-671, 685-693; Kidder v. Stewartstown, 48 N.H.
290 .
Bingham Mitchell, for the plaintiff. Second brief.
Was the purpose for which this money was paid by the plaintiff such a one as the
law recognizes as a public purpose?
The direct benefit resulting from its payment enured to the public. The mission
of the government being to govern and protect the public, the burden of its support
and preservation devolves upon the public. The theory of our republican institutions
is, that equality in protection is afforded all persons and property, — in
return
for which, support and defence are required of all persons and their property upon
a like basis of equality. No one person or class of persons can be arbitrarily required
and compelled to assume the entire burden of the support and defence of the government,
or an unequal share of that burden. If, from a lack of previous provision, the public
necessity demands that a particular class of persons shall for the time being assume
an unequal share of the public burden, when the exigency which demanded it has passed
it is due from the public to reimburse that class of persons and thereby equalize
the burden.
Upon whom devolved the duty of filling the quotas of the several towns? Was it the
duty and legal obligation of the men who were either drafted or liable to a draft,
or was it the duty of the several towns in their corporate capacity? We maintain
that it was the duty of each town to fill or provide means for filling their quota
of men, and not the duty of the citizens of that town who were liable to draft.
The public defence required men, and the president called for them. The law designated
the number of men required of each town to fill the number called for by the president,
and not the sacrifice required of each man, or of a particular class of men, to
answer that demand.
The history of every town in the state, during the war, attests the fact that the
duty and burden of filling their quota of men was by them regarded as a public duty
and burden, and their votes and acts were shaped in accordance with that understanding,
and aimed at the performance of that duty. When a call was made, and the number
required of each town was ascertained, they met in public meeting, in their corporate
capacity, and, under the power granted them by the legislature, they raised and
appropriated money to be offered and paid to men as an inducement to enlist and
have their enlistment credited on the town's quota. Agents were employed at the
town's expense to procure these enlistments. The laws which authorized towns to
raise and appropriate money for filling their quotas, have, by numerous well considered
adjudications, in this and other jurisdictions, been held constitutional. These
laws have been held constitutional, upon the ground that the purpose for which the
money was raised and appropriated was a public one. The purpose was to fill the
town's quota: hence the duty and burden of filling the quota was a public duty
and burden. Since to fill the quota was a public duty, a failure to perform it was
a public and not an individual failure: so the loss consequent upon that failure
should be borne by the public, who are the party in default.
The duty of filling the quota was an entirety. If the public were under the obligation
of filling any portion of it, they were obliged to fill it entire. If it was lawful
and constitutional for the public to fill a portion of the quota, it was clearly
lawful and constitutional
for them to supply it entire. In other words, if filling a portion of a town's
quota was a public purpose, it follows that to fill the quota entire was a public
purpose. And if it was the duty of the public to fill the quota, a loss sustained
by an individual in consequence of the public failure to perform their duty is a
very proper matter for the public to reimburse and repay to that individual.
As we view it, there can be no doubt but that it was incumbent upon this defendant
town to furnish, for the public defence, the number of men fixed by the law as their
quota.
The demand for men was made upon the towns in their public capacity, and not upon
a few individual citizens of the town. Had this town done their duty by filling
their quota, no draft would have been necessary, and consequently no loss sustained
by this plaintiff by reason of a draft. The draft necessitated the payment of this
money by the plaintiff. The defendants' failure to perform their duty necessitated
the draft, consequently the primary cause which compelled the plaintiff to pay this
money was the defendants' failure to perform a plain legal duty. In addition to
this the payment of the money was credited, not to the plaintiff, but to the defendant
town, as one man, and reduced the government's demand against them to that extent.
And the money was applied to the increase of the public defence.
It is said that the plaintiff paid this money simply in discharge of an individual
obligation he owed to the government. This we deny. If it was an individual obligation
he owed, then it was a tax: but it was not a tax, because it lacked the essential
element of equality. When and why was a draft required? The number of men for each
town was designated. The time within which they could furnish them was fixed. The
public safety required the number of men designated by the time fixed; and the law,
anticipating the possibility of a failure on the part of towns or districts to perform
this duty in furnishing their required numbers by the day fixed, provided an arbitrary
manner of getting the deficiency by making a chance selection from the soldier material
in the town. This was resorted to upon the town's failure to fill their quota.
This method was not resorted to because the individual drafted owed military service
to the government, but because the town, of which he was a citizen, were indebted
to the government for men and the necessities of the government were such that it
must have the men; and it leaves the town and their citizens, who fell victims from
the town's negligence, to settle the matter among themselves. And the law in its
wise provisions gave to the towns power to settle with and compensate their citizens
for the loss and unequal burden they were compelled to assume in consequence of
the town's failure, resulting either from negligence or inability.
In illustration of our view, suppose that the protection of the government required
one hundred thousand horses to be used in
its defence, and, instead of buying them with the revenue of the government, the
president made a call upon the country for them, and each town were required to
furnish, on or before a fixed day, their proportionate number of these horses. These
horses would be an assessment upon the town. If the town raise money, buy, and furnish
them, it is all right. But, as in the case of men, the law, anticipating a possible
failure of the town, provides that in case of such failure the officers of the government
will go to the town in default, and take indiscriminately and arbitrarily from among
the serviceable horses they find therein the number the town are in arrears. Can
there be any doubt but that the horses thus taken arbitrarily are as much for the
public use and benefit as the horses furnished by the town with the money by them
raised? Is there any doubt about the constitutionality of an act of the legislature
which authorizes the town to pay the persons from whom the horses were thus taken
the value of them? We submit there is not. If a person has an execution against
a town which has no property to satisfy it, after a notice required by the statute,
and the expiration of sixty days, he may levy his execution on the property of the
selectmen, if they have sufficient to satisfy it; otherwise, upon the property of
any inhabitant of the town. The inhabitant whose property has been thus taken to
satisfy the execution is entitled to recover the sum so levied, and damages and
double costs. Gen. St., c. 220, ss 8, 10.
The inhabitant's property is taken upon the town's failure to pay their debt.
The citizen is entitled to recover the amount by him paid, because the burden put
upon him is unequal, and should be shared by the other inhabitants of the town.
We contend that the same principle which governs the rights of a creditor, inhabitant,
and the town, under this statute, governs the rights of the government, citizen,
and town in the case of a draft, — the citizen in the one case standing in
the same relations to the town that the inhabitant does in the other, and the government
and creditor standing alike.
The votes of towns raising and appropriating money to fill their quotas, the acts
of legislatures authorizing or ratifying such votes, and the adjudications and course
of reasoning adopted by the courts when determining judicially the validity of such
votes and acts, all directly support us in our position, that the duty of filling
a town's quota was a public duty, devolving upon the town, and the burden of it
must be borne by the town. In Hickok v. Shelburne, 41 Vt. 415 , the court say,
"It has been repeatedly held that the obligation upon the town was perfect and complete,
upon the call of the president for men and assignments of its quota under the law,
to furnish them." It being the defendant town's duty to fill their quota, their
failure, and the plaintiff's consequent draft, which required the payment of $300,
entitle the plaintiff to a repayment of this money, the law having authorized the
town to repay it.
Acts authorizing towns to pay bounties have been held constitutional and within
the legislative power so often, and by so large a number of courts, in thoroughly
considered decisions, that no one at this time questions it. The reason invariably
assigned for holding these acts constitutional is, that the money authorized was
appropriated for a public purpose. The correctness of this position, that the money
was for a public purpose, no one doubts.
If the law authorizing the repayment of commutation-money is constitutional, that
which authorizes the repayment of money paid by a drafted man for a substitute is
also constitutional, and vice versa. The one puts in his own substitute, while the
other pays money which presumptively the government has used to procure a substitute
for him. Our position is, not only that commutation-money and money paid for a substitute
are alike, and governed by the same principle, but that money paid as bounties is
also paid for the same purpose, as affects the public, and is governed by the same
principle. In principle there is no difference, and there can be no difference.
The public welfare is promoted equally in each instance. The public good demands
it in each instance. The same substantial object is accomplished in each case, viz.,
the quota is filled, the public forces are increased, and the public security assured.
If money paid as bounties is for a public purpose, then we contend it is clear that
money paid by individuals in instances where the town failed to get men for bounties
is equally as much for a public purpose. The name, whether it be bounty, commutation
or substitute, under which the money was paid, amounts to but little: it is the
object for which it was paid that should govern.
Let us examine the two cases, and see if in principle they do not run together.
Bounties are constitutional and authorized, it is said, because "the whole community
have shared in the benefits accruing from the payments."
The draft could directly affect but one class of the citizens. It could not reach
the whole public, because liability to draft was limited to a class. This legislation,
then, it is claimed, had for its object the relief of this class of persons from
the sacrifices consequent upon a draft. If the legislature has power to authorize
a taxation which will prevent the burdens incident to conscription, can it not,
by the exercise of the same power, authorize a taxation which will relieve the class
of persons who have fallen victims to the rigor of the conscription laws? In principle,
can there be any possible difference between a town's giving A $300 to enlist to
save B's being drafted, and giving $300 to B to pay his commutation-money, he having
been drafted? Can it be said, with any show of reason, that the public share in
the benefits of a law which pays A a bounty to enlist and save the draft of B, any
more than they do in a law which authorizes the payment of B's commutation-money
when he is drafted? In each instance B is the man saved. He is as completely saved
in the one as he is in the other instance.
Each law has the same thing in view, and the effect of each accomplishes the same
result. The public interest is as practically and effectually subserved in the one
case as in the other. If it is for a private purpose in the one case, it is in the
other. If to serve upon being drafted, or commute it with money, is a duty private
and personal, and in which the public have no concern, then we maintain that the
liability to be drafted, which the town in a large number of cases removed by paying
bounty, is equally so. And if, on the other hand, a liability to draft is a liability
thrust upon him for the public, and for which the public can pay to relieve him,
then we claim a draft thrust upon him is for the public, and the power which authorized
the public to remove the liability will also authorize them to relieve him from
the draft, which was the direct result of the liability they failed to remove.
It seems too clear for argument that a power which can remove a liability can also
remove the consequence of that liability. And if it is a public duty or purpose
to remove a liability to draft, it is equally a public duty to remove the burden
imposed by the draft, consequent upon a failure to remove the liability. The true
reason why bounty money is regarded as paid for a public purpose, is because it
is paid towards filling the town's quota of men, which is a public duty and burden
upon the town. And it being the town's duty to fill its quota, the $300 commutation-money,
which counts one man for the town, and is part of its quota, is paid-for a public
purpose, as well as $300 bounty paid to a volunteer whose enlistment is credited
to the town, as the drafted man's commutation is, and county the same, and no more.
A volunteer, substitute, and $300 commutation-money stood alike in the reduction
of the town's quota. In each instance the public got the same. In case of volunteer
and substitute, men were actually put in; and in case of the commutation, a man
was presumptively put in by the government. At all events, the government gave the
town the same credit; and there is no tangible reason, — legally or morally,
why, for the same benefits, the town should not pay the same price.
These views and positions are fully sustained by the best considered decisions,
which involved and settled this particular question here presented. As cases in
which was raised and adjudicated this exact question, and which are directly in
point, we ask particular attention to the following: Booth v. Woodbury, 32 Conn.
118 ; Baldwin v. North Branford, 32 Conn. 47 ; Waldo v. Portland, 33 Conn. 363
; Bartholomew v. Town of Harwinton, 33 Conn. 408 ; Usher v. Colchester, 33 Conn.
567 ; Laughton v. Town of Putney, 43 Vt. 485 ; Comer v. Folsom, 13 Minn. 219 ;
Wilson v. Buckman, 13 Minn. 441 ; Miller v. Putnam County, 29 Ind. 75 ; Dean v.
Putnam County, 29 Ind. 117 ; People v. Westford, 38 How. Pr. 23; People v. Westford,
53 Barb. 565.
[These cases were then commented upon separately.]
In conflict with these authorities and our positions, we have been able to find
but two cases, viz., Kelly v. Marshall, 69 Pa. St. 319, and Freeland v. Hastings,
10 Allen 570.
In Kelly v. Marshall the question was raised and decided; — but an examination
of the case will show that the subject was but little considered, and is entitled
to but little weight compared with the cases above cited, where there was a full
investigation and thorough consideration. In Freeland v. Hastings this question
was not raised, because the statute under consideration did not cover it. All the
court said touching it was uncalled for: it was considering the constitutionality
of a law which did not exist.
The legislature, by the act of 1874, decided that money paid for substitutes and
commutation was money paid for that which constituted a public burden, and was for
a public purpose. The legislature has power to authorize towns to raise and appropriate
money for any public purpose. The legislature has not only the power to grant the
authority, but it is also vested with the power to judge of what is a public purpose
and for the public good.
In Cooley Con. Lim. 129, it is said, "what is for the public good, and what are
public purposes, and what does properly constitute a public burden, are questions
which the legislature must decide upon its own judgment, and in respect to which
it is vested with a large discretion which cannot be controlled by the courts, except,
perhaps, when its action is clearly evasive. * * * Certain expenditures are not
only absolutely necessary to the continued existence of the government, but, as
a matter of policy, it may sometimes be proper and wise to assume other burdens
which rest entirely on considerations of honor, gratitude, or charity. * * * There
will therefore be necessary expenditures, and expenditures which rest upon considerations
of policy alone; and in regard to the one as much as to the other, the decision
of that department to which alone questions of state policy are addressed must be
accepted as conclusive." Cooley Con. Lim. 488.
In Booth v. Woodbury, 32 Conn. 128 , it is said by the court, "If there be the
least possibility that making the gift will be promotive in any degree of the public
welfare, it becomes a question of policy, and not of natural justice, and the determination
of the legislature is conclusive. And such is this case. Such gifts to unfortunate
classes of society, as the indigent blind, the deaf and dumb, or the insane, or
grants to particular colleges or schools, or grants of pensions, swords, or other
mementos for past services, involving the general good indirectly and in slight
degree, are frequently made, and never questioned."
To the same effect is Speer v. School Directors of Blairsville, 50 Pa. St. 150,
in which it is said that "a tax law must be considered valid unless it be for a
purpose in which the community taxed has palpably no interest, when it is apparent
that a burden is imposed for the benefit of others, and when it would be so pronounced
at first blush."
This question was ably and elaborately discussed by Judge Ladd in delivering the
opinion of the court in Perry v. Keene, 56 N.H. 514 , decided by the superior court
of New Hampshire, and published in 15 A. M. Law. Reg (N.S.) 397. Judge Ladd said,
p. 534, "But before the court can reverse the judgment of the legislature and the
executive, and declare a statute levying or authorizing a tax to be inoperative
and void, a very clear case must be shown. After the legislature and the executive
have both decided that the purpose for which a tax is laid is public, nothing short
of a moral certainty that a mistake has been made can, in my judgment, warrant the
court in overruling that decision, especially when nothing better can be set up
in its place than the naked opinion of the court as to the character of the use
proposed."
We ask the court's attention to chapters 2712 and 2713 of laws of 1863, and section
7 of chapter 4023 of laws of 1864. These were laws authorizing aid and payment of
bounties to drafted men. The constitutionality of these laws has never been questioned
by our courts, so far as we have been able to discover. See Upton v. Stoddard, 47
N.H. 168 . In this case, section 7 of chapter 4023 was construed by the court, but
there was no intimation that the law was not constitutional.
In conclusion, and to recapitulate, we submit the following propositions, viz.:
1. To fill a town's quota of men was a public duty, and upon the public devolved
the burden of filling it.
2. In principle there is no difference, and there exists no constitutional distinction,
between a law granting money to a volunteer, and one granting money to a drafted
man.
3. By the passage of the act of 1874, the legislature decided that the purpose for
which the money authorized by that act was to be applied was a public one, and with
the power to make this decision the legislature was vested.
Bingham Mitchell, for the plaintiff. Third brief.
I. The courts have either expressly or impliedly treated the votes of towns, which
offered, agreed, or authorized their officers to pay bounties to volunteers, substitutes,
or drafted men, as promises of such towns. Crowell v. Hopkinton, 45 N.H. 9 ; Huntress
v. Stratham, 46 N.H. 409 ; Upton v. Stoddard, 47 N.H. 167 ; Knowlton v. Sanbornton, 48
N.H. 333 ; Pittsburg v. Danforth, 56 N.H. 272 (under laws of 1869, c. 126, p.
371); Burnham v. Chelsea, 43 Vt. 69 ; Butler v. Putney, 43 Vt. 481 ; Laughton
v. Putney, 43 Vt. 485 ; Swift v. Elmore, 44 Vt. 87 ; Rosebrooks v. Guildhall, 44
Vt. 90 ; Jackman v. New Haven, 42 Vt. 591 ; Gale v. Jamaica, 39 Vt. 610 ; Hickok
v. Shelburne, 41 Vt. 409 ; Rogers v. Shelburne, 42 Vt. 550 ; Steinberg v. Eden,
41 Vt. 187 ; Hill v. Eden, 41 Vt. 195 .
II. Application upon in reduction of a town's quota of men has been held a sufficient
consideration for the subsequent vote of the town to pay bounties to volunteers
and drafted men. Seymour v. Marlboro, 40 Vt. 171 ; Cox v. Mount Tabor, 41 Vt.
28 ; Swift v. Elmore, 44 Vt. 87 ; Rosebrooks v. Guildhall, 44 Vt. 90 . By the
act of 1874, the defendants' vote of 1864 stood as though passed pursuant to precedent
legislative authority.
III. Assumpsit is a proper action in which to enforce the plaintiff's rights and
recover the money by him paid, the statute not having expressly prescribed a different
remedy. See authorities supra, and, also, 1 Chitty Pl. 119 (16 Am. ed.); Pawlet
v. Sandgate, 19 Vt. 621 ; Hillsborough Co. v. Londonderry, 43 N.H. 451 .
The vote of the town, so far as the selectmen were concerned, was simply an instruction
given them by the town. So far as the town themselves are concerned, it has a different
effect: it is an appropriation of the town's funds for the purpose and to the extent
specified. The vote also expressly recognizes the "amount" as "due from the town."
It stands like any claim against the town, which they, through their officer, refuse
to pay.
Mandamus is granted to compel an officer to discharge a legal duty, when no other
adequate remedy exists. Hall v. Somersworth, 39 N.H. 511 , and authorities there
cited; School-Dist. v. Perkins, 49 N.H. 538 . In this case the interference of
the court by writ of mandamus is unnecessary, for two reasons: First, there exists
an adequate remedy without it; secondly, there is not involved the failure or neglect
of a legal duty by the selectmen of the defendant town, any more than there would
be on the town's promissory note, or town bond, which the town through their officers
had failed and neglected to pay. Dill. Cor., ss. 667, 668, notes 3 and 1, and authorities
cited; Mygatt v. Supervisors, 11 N.Y. 563 , and authorities cited.
IV. Assuming that the vote was a promise in law, it was not perfect until the passage
of the law which gave it validity. The plaintiff had no right of action until the
passage of the law, and the statute of limitations did not begin to run until the
plaintiff's right of action had accrued; consequently the claim could not be barred
by the statute until the lapse of six years from the passage of the law.
V. The consideration for the defendants' vote, if a consideration was essential,
was the payment of $300 by the plaintiff for a cause in which every other person
in town was equally interested with himself, and the application of it upon the
government's claim for men against the people of the defendant town. If the defendants'
quota had been promptly filled (by the people of this portion of the United States
of America, commonly known as the town of Landaff), a draft would not have been
necessary, and consequently the plaintiff would not have been compelled to make
this sacrifice. How absurd it would be to contend that a
principal is bound to pay his debt, but his surety having paid it he cannot recover
it of his principal. The enrolled men liable to draft were the sureties and guarantors
for the prompt fulfilment of the several quotas. The political divisions to which
assignments of quotas were made were the principals; and any one, in whatever way
or from whatever cause, who made a sacrifice for fulfilment of these several quotas,
made a sacrifice in a public cause, and for it is entitled to public recognition
and remuneration.
VI. The effect of the law of 1874 is not to permit some towns and to compel others.
Its effect is permissive. Towns which have acted, are authoritatively permitted
to pay in accordance with their vote. The effect is the same whether authority is
granted before or after the act. It is no more compulsion in the one case than in
the other. In one case the authority precedes the act, and in the other it is subsequent
to the act. The act is by authority in each case, and as much so in the one as in
the other.