By the Court,
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.
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,
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
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
“ 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
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
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.
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*
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 de
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
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.
I concur in the opinion of the Chief Justice.
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
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
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
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
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 plau
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
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 al
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
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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.