Kelly v. Marshall

69 Pa. 319 | Pa. | 1871

The opinion of the court was delivered, October 16th 1871, by

Agnew, J.

The farthest point reached by this court on the subject of military bounties is to be found in Hilbish v. Cather-man, 14 P. F. Smith 154. We there held that an excess of $150 over $400 per man allowed by law to be paid to procure enlistments in relief of the public from the draft, could be required by the legislature and authorized to be refunded to the subscribers; the money having been paid in ease of the district, and for a public useful purpose. Taxes being the revenue collected from the people for objects in which they are interested and conducive to their welfare, in principle there cannot be a difference between a precedent authority to pay for . such a public object, and a subsequent recognition of the same thing. But we said that could we Took upon taxation to pay bounties to volunteers to relieve the township from a draft as the application of public moneys to private ends, we would agree that the principles decided in Norman v. Heist and like cases, would forbid the application of the revenue to the payments in the case of Hilbish v. Catherman. We said that it could not be doubted that the legislature cannot take the property of one man and give it to another; it cannot tax the public to give the revenue to a wholly private object, nor tax a few to perform a general public work. This is the distinction which we think must govern the case now before us. The township of Hampton offered no bounty, and the petitioner paid none. He was duly drafted, accepted, and ordered to be mustered into service and paid a commutation under the Act of Congress for exemption from service. The whole affair was personal to himself, and for his own relief. He but performed an individual duty which fell upon himself. He owed the service by reason of the draft and order to muster in, and simply commuted it with money. It was not a measure of public relief, but a private exchange of one thing for another. He acted not under the state law, but accepted an alternative offered him by the federal law, and did nothing and offered nothing for the benefit of the community beyond the line of his legal duty. The order of the court below is therefore reversed, and the petition for mandamus dismissed at the cost of James Kelly the petitioner.

Judgment accordingly.