Brodhead v. City of Milwaukee

19 Wis. 624 | Wis. | 1865

Lead Opinion

By the Court,

DixoN, C. J.

The argument was able and exhaustive, and left nothing for research or suggestion on my part. I was convinced at the time, and so expressed myself to my associates, that the unconstitutionality of the tax could not be maintained. I thought the act valid in every particu-. lar, and my convictions have since been confirmed by the opinions of the highest courts of two of our sister states upon the direct question. One of those opinions was not then published, and both have but very recently come to hand. I refer to Booth v. Woodbury, in the supreme court of Connecticut, Law Rep., June, 1865, p. 232 ; and Speer v. Blairsville, in the supreme court of Pennsylvania, Am. Law Reg., Sept. 1865, p. 661 [50 Pa. St., 150.] I shall avail myself to a considerable extent of those opinions as expressive of my own views of the law.

Counsel on both sides accept as correct the, principles laid down in the great leading case of Sharpless v. The Mayor &c., 21 Pa. St., 147, 168, upon the subject of taxation. The same principles have frequently been affirmed by this court. The legislature cannot create a public debt, or levy a tax, or authorize a municipal corporation to do so, in order to raise funds for a mere private purpose. It cannot in the form of a tax take the money of the citizens and give it to an individual, the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation must be public, and such as subserve the common interest and well-being of the community required to contribute. To justify the court in arresting the proceedings and declaring the tax void, the absence of all possible public interest in the purposes for which the funds are raised must be clear and palpable — so clear and palpable as to be perceptible by every mind at the first blush. In addition to these, I understand that it is not denied that claims founded in equity and justice in the largest sense of those terms, or in gratitude or charity, will support a tax. Such is the language of the authorities.

I think the consideration of gratitude alone to the soldier for his services, be he volunteer, substitute or drafted man, will sustain a tax for bounty money to be paid to him or his family. Certainly no stronger consideration of gratitude can possibly exist than that which arises from the hardships, privations and dangers which attend the citizen in the military service of his country; and all nations have ever so regarded it. Who will say that the legislature may not, in consideration of such services, either directly or indirectly, or through the agency of the municipality or district to which he is credited, give to the soldier or his family a suitable bounty after his enlistment, or even after his term of service has expired ? I certainly cannot. It is a matter which intimately concerns the public welfare ; and that nation will live longest in fact, as well as in history, and be most prosperous, whose people are most sure and prompt in the reasonable and proper acknowledgment of such obligations.

But the act provides for paying the same bounties “ to persons who shall procure substitutes for themselves before being drafted, and have them credited to such town, city or village, upon its quota,” under the then pending call of the president or any call which should thereafter be made ; and it is said that clearly no debt of gratitude is due to such persons. To my mind it is not quite so clear. Suppose that during the late rebellion, citizens enough in the loyal states, liable to military service, had furnished substitutes so as promptly to have answered the calls of the president and kept the armies of the Union replenished with new soldiers, and so as to have avoided the evils and expenses of the drafts : is it clear that all the communities thus relieved would have been under no obligation of gratitude to such citizens ? Suppose still further, that under the system of apportionment adopted by Congress, a sufficient number of such citizens had been found in any town, city or election precinct to have filled its quota by substitutes : would there have been no cause for thankfulness on the part of the inhabitants of such town, city or precinct for their having done so ? I must confess that I think there would. War, though often unavoidable, is always a most deplorable public misfortune; and among its calamities, not the least, I may say the greatest, is the forcible separation of husbands, fathers, sons and brothers from their homes, kindred and friends, to be made bloody sacrifices upon the field of battle, or to die of loathsome diseases contracted in camps or upon campaigns ; and those who avert the evil of such forcible separation, I care not from what motive of private or individual interest, so that the duty of furnishing men for the army is performed, cannot but be regarded as in some sense public benefactors.

But it is not for those who have furnished substitutes in the past that the act provides bounties, but for those who shall do so under a pending call' before being drafted, and have them credited to the town, city or village, so as to avoid or help to avoid an approaching draft. In such case the power to tax may not rest upon the ground of gratitude. It can be sustained upon consideration of the benefit accruing to the town, city or village from the credit, which is direct and palpable. The procuring of substitutes was lawful and proper in itself. The act of Congress authorizes it, and the credit to the town, • city or village. Substitutes must be persons not liable to the draft, so as not to affect the interests of those who were, otherwise than by directly relieving them from the burden of it. The provision for substitutes was a necessity. Other obligations exist as strong, sometimes almost stronger than that of carrying arms in the public defense; and they could not be ignored. Some were so situated that personal service seemed impossible. Others might not go without greater loss to the community at home than gain to the public at large. The procuring of substitutes was, therefore, not only proper, but in many cases commendable. Persons procuring them performed their whole duty under the law. They furnished soldiers for the field, and relieved the communities in which they resided, the same as if they had themselves enlisted.' So far as the public interest is concerned in being relieved from the draft, I can see no distinction between paying bounties to them and to those who volunteer. Both contribute in precisely the same degree to such relief. The error of counsel, I think, consists in looking exclusively to the motives of private advantage by which the persons were governed. That such motives existed and were most frequently the predominant cause of their procuring substitutes, will not be denied. But there is no public good without at the same time some private gain, and in the language of Chief Justice Black, it is enough that we can see any possible public interest in the act, or public benefit to be derived from it. All beyond that is a question of expediency for the legislature, not of law, much less of constitutional law, to be determined by the courts.

Upon the general question, whether the payment of boun' ties to volunteers to fill quotas and avoid drafts is a public purpose so as to authorize state or municipal taxation, I quote from the opinion of the Pennsylvania court. “ The power to create a public debt and liquidate it by taxation is too clear for dispute. The question is, therefore, narrowed to' a single point: is the purpose in this instance a public one — does it concern the common welfare and interest of the municipality ? Let us see. Civil war is raging, and Congress provided, in the second section of the act of the 24th of February, 1864, that the quota of troops of each ward of a city, town, township, precinct &c., should be as nearly as possible in proportion to the number of men resident therein liable to render military service. Section 3 provides that all volunteers who may en list after a draft shall be ordered, shall be deducted from the number ordered to be drafted in such ward, town &c. Yolun-teers are therefore by law to be accepted in relief of the municipality from a compulsory service by lot or chance. Does this relief involve the public welfare or interest? The answer rises spontaneously from the breast of every one in a community liable to the military burden. It is given, not by the voice of him alone who owes the service, but swells into a chorus from his whole family, relatives, and friends. Military service is the highest duty and burthen the citizen is called to obey or to bear. It involves life, limb, and health, and is therefore a greater ‘ burthen’ than the taxation of property. The loss or injury is not confined to the individual himself, but extends to all the relations he sustains. It embraces those bound to him in the ties of consanguinity, friendship and interest — to the community which must furnish support for his family, if he cannot; and which loses in him a member whose labor, industry and property contribute to its wealth and its resources ; who assists to bear its burdens, and whose knowledge, skill and public spirit contribute to the general good. Clearly the loss of that part of the population upon whom the greatest number depend, and who contribute most to the public welfare by their industry, skill, property, and good conduct, is a common loss, and therefore a general injury. These are alike subject to the draft. The blind and relentless lot respects no age, condition or rank in life. It is therefore clearly the interest of the community that those should serve who are willing, whose loss will sever the least ties, and produce the least injury.”

“ The bounty is not a private transaction in which the individual alone is benefited. It benefits the public by inducing and enabling those to go who feel they can best be spared. It is not voluntary in those who pay it. The community is subject to the draft, and it is paid to relieve it from the burthen of war. It is not a mere gift or reward, but a consideration for service. It is therefore not a confiscation of one man’s property for another’s use, but is a contribution from the public treasury for a general good. In short, it is simply taxation to relieve the municipality from the stern demands of war, and avert a public injury, in the loss of those who contribute most to the public welfare. This is the design of the law; and it is no answer to say that bad men have abused it. * * * * It is not the individual payment that tests the public character of the appropriation. Individuals are always the recipients of the public funds. It is paid to salaries, to pensions, to bounties for the scalps of panthers, wolves, foxes, crows and blackbirds, to the poor, to the education of the young, as rewards for the apprehension of horse thieves and felons, to the families of soldiers in the service, to aid hospitals, colleges, agricultural societies, and to other useful objects. In all cases the recipient is directly benefited, while the public interest in many is not half so imperious or acute as the relief of a community from an impending draft. * * The pursuit of happiness is our acknowledged fundamental right., and that, therefore, which makes a whole community unhappy is certainly a social evil, to be avoided if it can be. The support of the poor affords one of the best illustrations of what is a municipal or public appropriation of money. The pauper is the party directly and solely ' benefited, while his pauperism is a public evil, and often is the result of crime. The pauper has not the merit of the volunteer, while the community is injured, not benefited,by his support. There is nothing but a naked public duty performed in his relief. The same may be said of all expenditures of public money in the punishment of crime. * * * If then it be within the scope of a municipal purpose to grant pensions, pay bounties, give rewards for the destruction of noxious animals, and the arrest of felons, employ watchmen, support paupers, build almshouses, bridges and markets, aid charitable institutions, make roads, and grade and pave streets, at public expense, how much more is it a public affair, which has for its object to prevent the forcible and blind extradition of a valuable part of the population into a service dangerous to the lives and limbs of those who go, and destructive of the welfare and happiness of those who remain. Nor can the dilemma be avoided. It is imposed by the exigency of war and the duty of public defense. * * * * In the ease before us the object is not to obtain money for the volunteer, but for the community which is to be relieved by the volunteer. * * * The consideration given on his side is most valuable — he enlists into a dangerous service, running the risk of life and limb ; and takes upon himself the burthen resting upon the whole community subject to the lot. The public welfare, as I have already shown, is most intimately involved in the draft, which enters directly within the field of municipal affairs. The die is not cast, and the lot is yet uncertain. All are liable within the ages of the greatest capability for usefulness. The chosen may be the most valuable, useful, and needed members of society, whose extradition may produce the greatest injury and the most distress. The public interest is more involved in the ills of a draft, than in many evils recognized as public in tbeir nature. An obstruction to a highway and a disorderly house, perhaps hurtful to but few, are punished as public nuisances. Even sounds and smells claim public attention. An impending draft is an evil certainly more to be dreaded than the odor of a pig stye, or the clatter of horns. Can it be that citizens may be torn from the community and social ties ruptured, to drag them into a dangerous public service, and yet community cannot interfere to save them, on the ground that it is only a private affair ? Their property may be protected from the storage of powder, by municipal regulations, but their bodies cannot be saved from being made food for powder in the public defense. It is possible to hold the disc of the dollar so close to our eyes, that it excludes from sight every object of public interest and blinds us to every sentiment of humanity.”

This is fully to the purpose, and enough upon the question of municipal bounties to volunteers.

Another objection is, that the duty of service is personal, confined to the class named in the conscription, and that the residue of the people required to pay the tax have no interest in the question. This is as false in fact as it is in theory. We all remember the gloom and anxiety that pervaded all classes of community before the late drafts, and tbe rejoicing and happiness when the “ quota was filled” and the draft avoided — not the happiness and rejoicing of those alone who were liable to the draft, but of thousands upon thousands of others connected with or dependent upon them in the manifold relations of life. It is idle to say that none but those within the ages of conscription were interested. And as to the theory that no others owe service, I answer, in the language of the court in Booth v. Woodbury, in which town bounties to drafted men were sustained,that every citizen is bound to take up arms, when necessary, in the defense of his government, not as a matter of strict law, but as an incident of citizenship. The selection of a class only, of a certain age, of whom that service is to be immediately demanded in a particular case, although, wise, is arbitrary, not based on any peculiar or special obligation resting upon the class, Or their ability alone to render the service, or to render it with less pecuniary or social sacrifice, but on the wants of the government, and the supposed fitness of the class to subserve the purposes of the government with more efficiency than others. If all owe the service, and it is for the common good, and there is the usual provision that it may be rendered by substitute or commutation, it is not easy to see why men above forty-five years of age, if able-bodied may not be called upon, as well as those of less age. If not as able to endure the hardships of the field, they may answer equally well for garrison duty or as details ; and presumptively they are better able to procure substitutes, for they have more generally accumulated property, or received it by inheritance. If substitution is made an element of conscription, as it was by the law in question, the ability to procure a substitute may well be an element without regard to age ; and therefore, when all above a certain age are exempt, they are favored, and it is clearly equitable and just that they equalize the burden by bounties to those who volunteer or are drafted and serve, or by making provision for the support of their families. On this equity, as well as upon the other grounds named, rests the power of the legislature to provide by taxation for state and local bounties; and under the system of apportionments prescribed by Congress, by which each municipality, election district or county is assigned its proportion of men, it becomes preeminently local taxation for local purposes, according to the rule contended for by counsel.

But it is said that the act does not apply to cities, — that it is applicable only to towns and villages. Cities are expressly named over and over in almost every section, and the intention of the legislature to include them is so obvious that he who runs may read and understand. I shall spend no time upon this objection.

It is also said that the act is in conflict with the charter of the city of Milwaukee, and impracticable in its operation. I do not think that it is in conflict with the charter, or repeals or modifies it in any particular. The charter remains the same as before, and all the powers which then existed or could have been exercised under it still exist and may now be exercised. The act was a delegation of new and specific powers to the qualified electors of the city, with a specific mode of exercising those powers, and in no wise affects or abrogates the general provisions of the charter, unless it be in some particular or particulars contravening the special provisions of the act, of which none were pointed out. No one can doubt the power of the legislature to pass special acts for special purposes without infringing upon the operation of other general laws, or to except a particular class of cases from the provisions of a previously existing general law, without repealing such law. Smith v. Hoyt, 14 Wis., 252.

As to the act being inconvenient, injurious, or impracticable in its operation, on account of the large number of voters who might be assembled at one place on the day of election, I' answer, that that is an objection proper to be addressed to the legislature, but not to this court. This court can, and, when properly presented, must deal with and determine questions of the power of the legislature under the constitution ; but it cannot lay its hand upon or interdict a statute, or arrest its operation, because such statute is either unwise, unjust or oppressive, there being no question of legislative power involved, The court is not the guardian of the legislative will, and cannot protect the people from the inconveniences or hardships of merely unwise or improvident enactments. The law may be very bad in the respect complained of, but as it was for the legislature to prescribe the time and manner of calling and holding the elections, so it is for the legislature to apply the remedy. And if the room at which the election is called is small, inconvenient, or inaccessible to large numbers, the elec* tors, or a majority of those present, may adjourn to some other place where these objections do not exist, making public announcement thereof and causing proper notice to be given to voters who shall come afterwards. This power, I have no doubt, is always possessed by the electors assembled on such occasions, unless expressly taken away by statute. The electors have this right as a power incident to all corporations at common law, irrespective of statutory grant. Chamberlain v. Dover, 1 Shepley, 472 ; People v. Martin, 5 N. Y., 27; Goodell v. Baker, 8 Cow., 289.

It has likewise been suggested that the legislature is prohibited by sec 8, Art. SI of the constitution, from providing for an election at one common poll, such not being the usual course in cities, but that the votes must be taken in wards or other lesser subdivisions. The object of this section is obvious. It was to impose upon the legislature the duty of restricting the power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and taxation on the part of cities and villages, and not to give the legislature power to organize cities and villages, nor to prescribe the form of such organizations. The power to organize cities and villages would have existed without such provision, and the section is entirely silent upon the form or mode of organization. It is a fundamental rule in the con struction of written constitutions, that we are to be governed by the purpose of the framers, and I do not see how any one can look upon the section and say from the language employed, that it was the intention of the framers to bind the legislature to any ancient or then existing form of organization. It is not often that constitutional conventions are engaged upon such trivial and unimportant matters of form, and the records of our convention do not show that any such question was up or discussed. I can see no object in such prohibition, and have always supposed, and still do suppose, that it was left in the largest sense to the discretion of the legislature to determine when and bow cities should be organized, who should be their officers, what their names of office, their powers, and how elected, &c., &c. I have always supposed, and still do, that the legislature has full power to change or modify the provisions of any of our city charters as it may deem wise or expedient, or to repeal them. Should the legislature to-morrow, or at its next session, repeal the charter of the city of Milwaukee, and throw the territory into the form of a town organization, so that all the electors must vote at one poll, would this court have power to arrest the operation of the act or declare it void ? Such an act might be most unwise and imprudent in itself, and most injurious in its effects ; but I hold that this court would have no power over it; and for the same reason I hold that we have no power over the present act.

It may also be suggested that section 26 of Art. IY of the constitution has some influence upon the question. My answer is that the persons there spoken of are those engaged in the service of the state. Our soldiers have been engaged in the service of the United States.

Another objection is, that it is a delegation of legislative power to the people. In reply to this I refer to Oliver's Case, 17 Wis., 681, and the authorities there cited.

Still another objection is, that the whole power of levying troops, organizing armies, fixing compensation, paying bounties, &c., resides in Congress, and that the-states can take no action in the matter. This objection was urged and fully met in the Pennsylvania decision. If Congress has the power and may legislate to the entire exclusion of the states, which is very doubtful so far as state aid to the persons and families of volunteers or drafted men is concerned, still Congress has not done so. The act of February 24th, 1864, was framed with direct reference to such state and municipal aid, and the act of Congress and the act of the state, without .the slightest repugnance or opposition, go hand in hand together for the more ready and perfect accomplishment of one common object. The propriety and legality of sucb assistance are expressly recognized in the third proviso of the seventh section, and the second proviso of the twentieth section, of the act of Congress.

One more objection, and the last in the long catalogue which T shall notice, is that the legislature did not pursue the system of division fixed by Congress. The bounties should have been by wards to volunteers to be credited to the wards respectively, instead of by the city at large, to be credited to each ward. How this diminished the power of the legislature, or could control its action, is not shown. I think it is very difficult to perceive. The argument tends to show an abuse of power, or lack of wisdom on the part of the legislature, rather than a total want of power, which last is the only one that can be addressed to this court to defeat the operation of the act. It is said that the residents of one of the wards had filled or nearly filled its quota at the time the vote was taken, and that it would be unjust to tax them to fill the quotas of the other wards. This is somewhat low and selfish ground, but admit the apparent injustice; still, if the court can see and the legislature could see, within the principles above stated, that they had yet some possible interest in filling the quotas of the other wards, and the legislature saw fit to tax them for that purpose, the tax must stand. In a city like Milwaukee, where all the interests of the people, religious, moral, political, social and economic are so intimately connected and blended throughout, it is not difficult to perceive such interest; and hence I think the objection must fall. It seems to me that the system of congressional subdivisions, adopted for convenience, has really no influence upon the question, and that the legislature might have provided for bounties from the state at large, or, as was done in Pennsylvania and New York, in some instances, from counties, as well as cities and towns.

I think, therefore, that the orders refusing the injunctions should be affirmed.

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Concurrence Opinion

Colb, J.

I concur in the opinion of the Chief Justice.

Dowíter, J.

These cases involve the validity of the bounty act, so called, of February 2d, 1865.

The first section of that act provides that “ the qualified electors of each town, city, and incorporated village in the state, shall have power, at any annual or special meeting thereof, to raise by tas such sum or sums of money as they may deem necessary to pay bounties to volunteers who may have enlisted, or who may hereafter enlist, under the call of the President of the United States, of December 19th, 1864, for three hundred thousand men, and who shall hereafter enlist under any call of the President which may hereafter be made, and become credited to such town, city or village under such calls; and also to persons who shall procure substitutes for themselves before being drafted, and have them credited to such town, city or village upon its quota under any such call, and for the purpose of giving aid to the familes of volunteers and drafted men.”

The electors of the city of Milwaukee voted to raise $119,-000 for the purposes mentioned in the first section of the act. It is contended that such tax is illegal on various grounds :

1. It is said that the power to raise and support armies is granted to Congress; that after the volunteers have enlisted they are exclusively under the pay, control and management of the general government, and that a state, much less a city, has no right in any way to aid or obstruct the exclusive rights and power of the general government; that the state cannot even give the volunteer, after his enlistment, extra pay or extra bounties. This doctrine, it is claimed, is sustained by the decisions of the supreme court of the Union in the cases of Prigg v. The Commonwealth of Pennsylvania, 16 Pet., 542, and Sturges v. Crowninshield, 4 Wheat., 122. There might be some force to this objection were it not for the resolution of Congress, approved March 19th, 1862, which provides that if any state during the present rebellion shall make any appropriation to pay the volunteers of that state, the secretary of war shall receive the same and make regulations by which such funds shall be applied to the specific purposes for which they may be appropriated by the states. This resolution, in our view, renders the position untenable.

2. It is insisted that the act is void because it delegates legislative power, and depends upon a vote of the electors. The line is too clearly drawn between an act which depends upon the vote of the people whether it shall be a law or not, and one which confers power upon officers or electors to raise money or not as they please by taxation, and is in force without a vote, to need any discussion. The former is void, the latter valid. Tho law in question is so clearly of the class of acts uniformly held valid, as to require no ■ citation of authorities.

3. It is further objected that the taxes authorized by the act are not for public purposes. It was conceded on the argument that money cannot be raised under the forms of taxation for mere private purposes. Such is undoubtedly the law, and we need not stop to inquire whether this prohibition is contained in some constitutional provision, or is a fundamental principle of free government, though not in the constitution; or whether it is implied from the very meaning of taxation, which is, an exaction of money or services from individuals as their respective shares of any public burthen.

Is the raising of money to pay bounties to volunteers who shall enlist in the service of the United States a public purpose? The whole United States hadan interest in putting down the rebellion. To put it down was a public benefit — a benefit to the Union — a benefit to each state — a benefit to every town, city and village. Here then is a public interest or benefit, in the largest sense of the term. It is sufficient to authorize a state to tax its citizens, or the United States to tax all their citizens. But is it not true that a city, to authorize a local tax on its citizens or their property, must have a special local interest over and above what it has in common with the state or United States? We think it must. This principle underlies all those cases which decide that towns, 'cities, and counties might impose local taxes to aid in the construction of railroads, plank roads, canals and highways, to build court houses, jails and harbors, and make various other improvements of a public character. The improvements may be such that the whole state has an interest in them, and might levy a tax to make them on the people of the entire state. At the same time it is true that the particular locality or municipal corporation authorized to impose the tax has a special interest beyond the interest which is common to the whole state. In a case where a city imposes a tax to aid in the construction of a railroad, the road tends to facilitate and increase the commerce of the city, to add to its population and its wealth. And there are public advantages or purposes special to the city for which a local tax may be imposed. It was urged however on the argument, that any 'public interest — the interest which a city had in common with the entire state or the United States — was sufficient to authorize local taxation. In support of this position passages in the individual opinions of judges in certain cases were cited. But none of the cases themselves turned upon that point; and it is evident upon a careful examination of them that they sustain the doctrime that there must he a special local interest to sustain local taxation, and that the expressions apparently to the contrary must be considered as made with reference to the subject matter of the actions or the questions before the court, and when so considered have no such meaning as was given them, or are mere obiter dicta. One of the leading cases upon the subject of local taxation is that of Sharpless v. The Mayor of Philadelphia, 21 Penn. St. R., 147. That was a suit in which the main question presented to the court was, whether the acts of the state legislature authorizing the city of Philadelphia to subscribe to the stock of certain railroad corporations, each having its terminus in or near the city — and to issue the bonds of the city for the stock, were valid. If the city could lawfully issue its bonds, it could impose a tax on its citizens to pay them. The court decided that the cityVtod a special local interest in the improvement, and could legally impose a tax to pay the bonds. Chief Justice Black, in his opinion in that case, says: “ Eor us it is enough to know that the city may have a public iriterest in them (the railroads), and that there is not a palpable and clear absence of all possible interest perceptible by every mind at first blush. All beyond that is a question of expediency, not of law, much less of constitutional law.” This and similar expressions in one or two other cases, it is insisted, go to the extent of asserting the doctrine that any public interest, even that which a city has in common with the state or United States, is sufficient for local taxation. But such was not the meaning of Chief Justice Black. It requires but a slight examination of his opinion to see that there runs through the whole of it the idea that there was in that case, and must be to sustain local taxation, a special local interest. The same is true also of the other cases cited on this point.

If the interest which the city has in common with the whole state is sufficient to sustain or authorize a city tax, then the legislature might levy the entire state tax upon the property in a single city. But this would contravene that clause in the constitution which provides that “ the rule of taxation shall be uniform.”

Had the city of Milwaukee any special local public interest in procuring the enlistment of volunteers, who should, after the offering or voting of the bounty, enlist and be credited on her quota or that of any of the wards of the city ? If she had, it was because it was for her interest that her mechanics and business men, who are the lifeblood of the city, and her citizens who have families to support, should remain at home, and their places in the army be filled by other persons residing outside of the city limits, or by those within, not so necessary to her well being and prosperity. Is it certain that the bounty offered would have the effect of filling the quota with persons wbo were not citizens, or with those classes of citizens whose enlistment would be the least injurious to the city? Is it not certain that many (stimulated as well by patriotism as by the bounty offered) of the very classes whi.ch the interest of the city required should remain at home, would enlist; and that the cowards and the sneaks, the idle, the lazy and the vicious would avail themselves of the very bounty offered, and procure, by adding to it a few dollars more, substitutes for themselves from the classes which the interest of the city required should remain at home, and thus aggravate the evil intended to be remedied ?

It is not very clear to my mind that the city had a special interest on which this tax can be based; still we are. inclined to the opinion that it had. And if it had any such interest, then it is a question for the legislature and not for the court. If it is doubtful whether there is any such public interest, then the court cannot pronounce the law void. To do that the court must be able to clearly perceive that the city had no special local interest in raising the volunteers. It follows that so much of the act in question as authorized a tax to pay bounties to volunteers who should enlist after the vote to raise the tax, is valid. We are sustained in this view by the recent decision of the supreme court of Pennsylvania in the case of Speer et al. v. School Directors of Blairsville, Am. Law Reg. for Sept., 1865, p. 661. The case of Booth v. The Town of Woodbury, Law Rep. June, 1865, p. 232, although it is perhaps somewhat in conflict with some of the views I have take in this opinion, yet in the main point, the validity of the law of Connecticut ratifying an unauthorized vote of the town to appropriate six thousand dollars to be distributed among men who should be drafted to fill the quota of the town, rests, it seems to me, upon the same principle as that portion of our law authorizing bounties to volunteers who should thereafter enlist. The giving of such bounties to men who should be drafted would enable men with families, and such as the interest of the town required should remain at home, to procure substitutes ; and it would or might induce those without families, not to procure substitutes, but to serve themselves.

4. It is maintained with great earnestness that the city has no special interest to support a tax to pay bounties to volunteers who had already enlisted when the act was passed, or who enlisted before the vote to pay bounties. The argument, in brief, by which this position is sustained is, that “ the record shows that these volunteers enlisted at the solicitation of private associations, or as substitutes for individuals who paid them a far higher price than the bounty offered by the city. The complaint of Porter and affidavit of Wyman show that the fifth ward had filled its quota, and that the funds had been raised by a private association which paid a bounty of from $200 to $285 to each volunteer. The city only gives a bounty of $200. The city has no special public interest to pay a still greater bounty to these volunteers; if she has, how and in what does this interest consist ? She is to derive no benefit from it which she would not receive without it. She is under no legal obligation to pay it, for she never made any contract to give them any bounty. There is no equitable claim to this bounty on the part of such volunteers, for no pledge before their enlistment; was ever given, express or implied, that they should ever have it; they have performed no public services so that it can be given them as an expression of gratitude for services rendered ; for they may not have enlisted ten days or even one before the vote to pay the bounty. Such volunteer never faced the music of battle, or smelt the powder of an enemy. He had been ever since his enlistment within the peaceable state of Wisconsin, and perhaps had not even paced the beat of the sentinel, and may have been all the while under close guard for fear he would play, in common parlance, the bounty jumper. He has no claim by the way of charity, for he may be worth his thousands.”

This reasoning is plausible. The answer given is also plausible. It is said, if tbe city has a special interest on which to base a tax to pay bounties to volunteers who enlist after the vote to pay the bounty, on the ground and for the reason that they by enlisting confer a special favor ujeon the city, why is not the volunteer who before the vote enlisted, and thereby conferred a special favor upon the city, without any agreement for remuneration, entitled to the bounty ? If there is a legal obligation in the one case, is there not a moral obligation in the other, or at least gratitude, on which to base this bounty ? This argument assumes what, if true in any sense, is not strictly true, and the answer is not therefore satisfactory. The volunteer may have been of the class which the interest of the city required to remain at home; and if so, no favor was conferred upon the city by his enlistment. But if a favor was conferred, who conferred it, the volunteer who has received from a private citizen or association from two hundred to eight hundred dollars as a bounty for enlisting, or the citizen or association who paid him the bounty ? If there is a debt of gratitude, and to pay which a tax may be levied, to whom is this debt due ? To the citizen who paid his money, and was the moving or procuring cause of the enlistment, or to the volunteer, who may reside out of the limits of the city — may be a resident of Canada or a citizen of some of the govern ; ments of Europe, and who was or may have been a mere hire ling, and acted in this matter without one patriotic impulse ? There can be no doubt that the citizen or persons who paid the bounty must be regarded in such case or cases as the real cause of enlistment. But for the bounties by them paid, the volunteers might and probably would never have enlisted and been credited to the city or any of its wards. Again, the equitable claims which may be paid by the state out of funds raised by taxation, are those growing out of services actually rendered, and which have not been fully remunerated; as where an individual has made a contract with the state or city to build a public building or make any public improvement, and has lost_ money in this undertaking. In such case, in some of the states it has been held, that although there was no legal obligation to pay, yet a tax might be imposed to raise money to make up the loss to the contractor, because his claim was based on equity or gratitude. It is on the same ground that pensions are given to discharged soldiers. The country is considered under a debt of gratitude to them for services actually rendered. But we apprehend that it would be somewhat novel to decide that a tax might be imposed to raise money to pay a debt of gratitude, when the services out of which the gratitude arises are yet to be performed, and when the party who is to perform them has already been most amply paid for what he has already done. The raising by tax money to pay in advance a debt of gratitude which may never be incurred, it appears to me, should not receive the sanction of a judicial tribunal. We must distinguish, however, between volunteers who by an unauthorized vote of a town or of its officers have been promised a bounty, and under such inducement have enlisted, and those who have enlisted without any promise or pledge of any bounty from town or city, and have actually received a bounty from private individuals. In the former case the volunteer might have such an equitable claim to the bounty pledged as to authorize a tax to pay it; in the latter no claim whatever.

Again, section 26, Article IV of the constitution of the state provides : “ The legislature shall never grant any extra compensation to any public officer, agent, servant or contractor, after the services shall have been rendered, or the contract entered into.” This relates undoubtedly to the officers and employees of the state. Is the state, then, absolutely prohibited from granting any extra compensation to its own officers, servants and employees, even as an expression of gratitude for services actually rendered, and yet can it give such extra compensation to the servants and employees of another sovereignty ? Is she not, by the strongest implication, by the spirit, if not by tbe letter of tbe constitution, prohibited from doing for tbe servants of another sovereignty what she cannot do for her own ? And if she cannot do it herself, can she delegate to municipal corporations the power to do it ?

Eor these reasons I hold that so much of the act under consideration, as authorizes the payment of bounties to volunteers who enlisted before the electors voted to raise the bounty tax, void; and as in the cases before us this illegal tax is mingled with the legal, it vitiates the whole.

6th. The act provides for paying bounties to volunteers who may have enlisted or shall hereafter enlist and become credited to such town, city or village, upon its quota. The laws of the United States in force at the time this act was passed, provided for assigning quotas to towns, townships, and wards of cities, but not to cities. It is contended, therefore, that the act is inapplicable to cities, inasmuch as there is no such thing as the quota of a city. On the other hand it is said that “ although there is not literally and strictly any such thing as the quota of a city, yet that the act should receive a liberal construction, and that the quota of a city may be said to be made up of the aggregate of all the quotas of all the wards, and that where a credit is given to any ward of a city it is in fact a credit to the city.” Still it is a fact that a city as a city is unknown in the act of Congress, and has no quota. If the city had a quota allotted to it, all the persons who volunteered, being residents of any ward of the city, would be credited to the city ; but now if any ward furnishes more men than its quota, the excess can neither be credited to the ward nor to the city. If one half of all the wards m the city should furnish the number required of all the wards, still the city would not be out of the draft. The other wards must each furnish its own quota. The act of Congress does not authorize a draft from among the residents of one ward to make up deficiencies in another, nor does it authorize any surplus or excess of men furnished by any ward over and above its quota to be credited to or allowed upon the quota of any other ward or wards. Practically, therefore, the filling of the quotas of the wards and the filling the quota of the city, if it bad any quota, would be different things. This court has repeatedly decided that laws authorizing the levying and collection of taxes must be strictly construed, and to the same effect are many authorities. Blackwell on Tax Tit., 86; Sharp v. Spier, 4 Hill, 84; id., 92; Beaty v. Knowler, 4 Pet., 152 ; 2 Dallas, 316. If the act is construed strictly according to the authorities cited, the objection is well taken, and the act void as to cities.

7th. The complaint alleges that “the city of Milwaukee contains fifty thousand inhabitants, and eight thousand legal voters ; that the City Hall, where the meeting was held, is not capable of holding, if filled to its utmost capacity, more than one thousand persons; that for the purpose of taking the said vote but one poll was open in the entire city, to wit, the poll in the common council room ; and that it would be absolutely impossible to take the votes of one half the legal voters of said city at a single poll between the hours of nine o’clock in the morning and five o’clock in the afternoon.” This allegation is not denied, and must be taken as true. The act only provides for one poll in any city, and the votes, viva voce, by ballot, or otherwise, are to be taken between the hours of nine o’clock in the forenoon and five o’clock in the afternoon. In fact all the business authorized to be done by the voters relative to any bounty tax to be raised, must be done in one day, between the hours aforesaid, and at one poll or place of meeting. What are the acts to be done ? The meeting is to be organized; a board of inspectors are to be elected; the amount of the tax to be raised may be fixed by vote at a lower sum than that mentioned in the petition for the meeting; and if the electors choose they may, by vote, fix the amount to be appropriated to each of the purposes mentioned in the first section of the act, and the amount to each volunteer, and may also determine whether the tax to raise the amount voted shall these things must of pegeggj£y}be d^e^pii^fd.j^^.Y^e, tallen in some other way than hy^llpt. |,r|Il}^fiit^0ifl9S/t3ii.p!%o[fce,r ■gbicb must be by ballot, to ^er^iijejw^e^^’i^tbpy^l'Icí^i^Rfey tas the bounty or not. It^pj^iirgs ¿iijitjVfryjgligbli.^gpiy^^dgg of tbe manner of con-ojlfitjftg s^;.¡g}^]¡iiiggjj J9 ifW&Píi® ifeft conclusion that eight t^usajicL Y.gte^ppu|d ijp^ub^jg^l,!,^ at(a single poll in eight |^ojjr@„,|i^rjpnejL^f o£j|;hem<¿ sa,yipg_pJ©];hing of the time that other than those by ballot. TheJa,iHeg^ig.ps])^r,e not(igplyi-.not denied, but can-^y wayof avoidwere offered. ^^ig[i&vi3j^rs^tj.pf^^c>¿'j-ÍIf.32^]PFer,fJrr^epigIg; c^rald not be expected taF&MR^that not one half is usual in elec-.fe^eetMfep PFoper machinery ffeptiiiRto} fÉp^cSPPlloftrféSy^rn^ilwaukee, has ^ÍAe©gftr8SÍdl^dm^%í.o^/taiJ;j2a|[)c¡iiy}tbe, act is inopera-ipo^uKyi w4i SiPffll^iHgfJ'i'iieSp1# in the idea of fell vote at by .iñ?flsPSRfe¡ IiWSVf (r/ftnjs .Misprising that $gt.£g§ fe ,g|iíÍeffliV8ted-p(i^M¡Píieffs^ to allow the tóWiyet has PJP* PSffllMi^íOTW teT^8fetefJ3an express Í¿l\rffi?bfs0ííj \rd ouuf.) od o.t byshoifjjjR sasuiand o:

NMbÁ^iRÁ^WfM^^^^iiéPk^riaiiíij^^Kfegpeets, the ®rc¥S& yo)^f§hojU^ ^ ;4lNsion of # É® ^pIS-SÉ ^HAkl&f^SS W §d0gfefeá9i¥,Present ffoJ'ÉúfBé-^-M ^iftkibgjx^díKplace Iii^ríí%¡ ^ÍÍRfidPi M4)(^9^14ilTpei(JaíSi§'bP.pngh}Jfe(al§com-f^^fKiÁPuTS^IPiíioS&tkafe^ílr.KftyíMyMligtípáyiíga'e of Ssífíi-SR'Í SMífi^F^íh 9? áS'P^ñP'ie^Piíipa^ffiMhifJf othe rooms where the meeting was held could contain only one thousand persons, it virtually excluded from any participation in the vote electing inspectors, and various other votes, most of the legal voters, and gave the control of the meeting to a few determined men. It appears to me that there is force in this objection. The signers of the petition, who fixed the place for holding the meeting, ought to have fixed it where all the voters could have assembled and voted. Suppose they had named some room as the place of meeting which would not contain more than twenty men, and twenty had assembled there, organized the meeting and elected inspectors, could there be any question that such proceedings would have been held illegal? And can there be any question that a meeting called for eight thousand voters, at which all have a right to be present at the same time and vote summarily otherwise than by ballot on important questions, ought not to be held in a room where only one thousand could assemble ? But it is said they could adjourn to another place. This is doubtful. The authorities cited to that effect are all cases where incorporated towns held meetings, and were authorized by law to hold them annually or oftener, to transact the ordinary business of the towns ; and even such meetings have not a right to adjourn until they are organized, or have proper officers to preside over them. The bounty act provides that the meetings in cities “ shall be held at the place designated therefor in the petition asking for the same.” The act contains all the authority for holding or conducting meetings in cities to vote to raise the bounty tax; and that act says the meeting shall be held at the 'place designated in the petition, and gives no authority to hold it at any other place or to adjourn. It is clear the meeting is the creation of the statute, and has no power but that given by the act. But if they have a right to adjourn to. another place, they could do it only by a vote of the meeting, and all legal voters would have a right to vote on the question of adjournment ; of which many of them might and would be deprived if the room in which it was taken could accommodate only one eighth of them.

For these reasons I hold that the order of the circuit court denying the injunction in the case of Brodhead et al. v. The City, should be reversed, and that so much of the order of the circuit court in the case of Porter v. The City of Milwaukee, denying the injunction prayed, as relates to the real estate of the plaintiff, should also be reversed.

Orders affirmed.