State v. Demarest, 32 N.J.L. 528

State v. Demarest

32 N.J.L. 528 | N.J. | 1866

*536The opinion of the court was pronounced by

Dalrimple, J.

The writ of error in this case removes the judgment of the Supreme Court on certiorari in a tax case. Elisha Ruckman, the prosecutor in the court below, brought a certiorari to remove an assessment of taxes, made against him in the township of Harrington, in the county of Bergen, in the year 1864.

It appears that the county of Bergen responded to the call made upon it for troops, to prosecute the late civil war, prior to 1864, by furnishing volunteers and substitutes, and thus avoiding the necessity of a draft. Bounties were paid for such volunteers and substitutes by the board of freeholders, on request of the inhabitants of the several townships of the county, or some of them. By an act of the legislature, approved February 11th, 1863, (Pamph. Laws of 1863, p. 33,) the indebtedness which had thus been informally and without authority of law, created for the purpose of paying bounties up to that time, was ratified and confirmed as against the county, and it was authorized to provide for the payment of the same by issuing its bonds, and to provide for the payment of the bonds and interest by taxes, to be assessed and collected at the time other taxes in the county were levied and assessed.

The third section of the act provides, that the said taxes shall be apportioned among the several townships in the said county, as follows: “ So much thereof as may be required to pay the principal of the bonds and indebtedness and interest thereon, issued and incurred to pay the bounties of volunteers, to fill the regular quota of said county under said call, in the ratio of the number of volunteers each township was required to furnish, and so much thereof as may be required to pay the principal of the bonds and indebtedness and interest thereof, issued and incurred to pay the bounties of volunteers in excess of said quota, shall be apportioned on the same basis as other county taxes are.” By another act, approved March 10th, 1864, (Pamph. Laws of 1864, p. 207,) the chosen freeholders of Bergen were authorized to provide *537for the payment of the indebtedness incurred, or to be incurred, by said board in raising money and'paying bounties to and for such volunteers and soldiers as had been, or should be, enlisted and mustered in the service of the United States, in and for the said couuty, by issuing bonds in the corporate name, and under the corporate seal of said county, and to pledge tiie property and credit of the county for the payment of the same, and were required to provide for the payment of the same and interest by taxation, to be made, levied, assessed, and collected at the times and in the manner that other county taxes in said county were levied, assessed, and collected. An assessment of taxes was made in the year 1864, to pay the interest and a portion of the principal of the bonds issued and indebtedness which had been so created, and for which the county had thus become liable.

The prosecutor was a taxable inhabitant of the township of Harrington, and, as such, was assessed for his proportion of these taxes. He was above the age of forty-five years when the war commenced, and was not, therefore, liable to be drafted oil any of the calls, to fill which the county furnished volunteers and substitutes. The Supreme Court having affirmed the tax, the prosecutor sues out of this court his writ of error, and instead of assigning errors upon the record, he makes twelve assignments of error upon the opinion of the court, and thereby alleges twelve different imperfections or defect's in the reasoning whereby the court below reached its conclusion. This mode of assigning errors is wholly unwarranted, and the court, of its own motion, orders all the assignments of error, except the thirteenth (which may be said to be upon the record,) stricken out.

There were two reasons relied upon on the argument in this court for a reversal. The first was, because the tax was assessed on the same basis as other county taxes were, and was not apportioned as required by the third section of the act of 1863, “ in the ratio of the number of volunteers each township was required to furnish.” Rut the act of 1864 adopts another mode of assessment. It says, in so many *538words, “that it shall be lawful for the freeholders of the county of Bergen to provide for the payment of the indebtedness incurred, or to be incurred, by said board in raising money and paying bounties, by issuing bonds in the corporate name, and under the corporate seal of the county, and to provide for the payment of the same and the interest, by taxation to be made, levied, assessed, and collected at the time and in the manner that other county taxes in said county are levied, assessed, and collected.” It has not been shown that any of the taxes of 1864 were to be applied to the payment of the bonds issued by virtue of the act of 1863. If they were not to be, then the assessment was rightly made under the act of 1864. It is not necessary for us to inquire as to the precise effect, or proper construction of the act of 1864, until the prosecutor shows that the moneys raised by the assessment of which he-complains, or some of them, were to be applied to the payment of the indebtedness provided for by the act of 1863. Besides, by the third section of the latter act, it will be seen that the taxes, necessary to be raised to pay the indebtedness incurred to pay the bounties of volunteers in excess of the quota, should have been apportioned on the same basis as other county taxes were.

It does not appear whether the taxes of 1864 were raised to pay the bounties of volunteers, called to fill the regular quota, or of those raised in excess of that quota. If the •taxes were to be applied to the payment of bounties to the latter class of volunteers, they were properly assessed on the same basis as other county taxes. The prosecutor alleges the error. It is for him to prove it. A still more conclusive answer to this objection is, that it sufficiently appears to the court that the prosecutor’s tax, if the mode of assessment he contends for as the correct one had been adopted, would have been greater in amount than it now is. He is better off with the assessment made on the basis it was, than if the one he contends for had been adopted. Such seems to be the case from the facts and figures before us. Assuming that the tax complained of was to pay the indebtedness provided *539for by the act of 1863, and that strictly it should have been assessed in the manner pointed out by the first clause of the third section of that act, the prosecutor has not shown, nor attempted to show, that he has been injured by the assessment as made. If he has not sustained some substantial injury, he cannot ask to have the assessment set aside.

The other objection is, that both the acts of 1863 and 1864 are unconstitutional and void. No express provision of the constitution of this state, nor of the United States, contravened by either of these acts, has been pointed out. The argument is, that the taxes authorized by them are not taxes for any of the great purposes of government, but a taking of private property for private use. In other words, the prosecutor, not being liable himself to draft, it was unconstitutional to tax him to exempt his neighbors who were. Was the tax in question levied for private or public use? That seems to be the proper test. The rebellion was raging. The government called for troops. The quotas of the different townships, precincts, and wards in the state were assigned by the war department of the general government. If not filled by volunteers within a fixed time, a draft was to be made. Male citizens, between the ages of twenty-one and forty-five, were alone liable to draft. The taxes authorized by the laws in question, were to be assessed to fill up the ranks of the army of the United States. All alike, whether liable to military duty or not, were interested in the maintenance of the government, to support which the armies were raised. The State of New Jersey, as an organized political community, was interested in supporting the government and strengthening its armies, and when she, in her sovereign capacity, authorized a tax to be assessed to pay men voluntarily to enter those armies, such tax was for a public and not a private purpose. Besides, such tax was for a public purpose, for the very reason that the intent and effect of raising money thereby, was to save a general conscription of those liable to military duty.

Whether the interest of the people of the state, taking all *540circumstances into consideration, would be best promoted by suffering a draft, or by levying a tax and paying bounties, and filling the army by'volunteers and substitutes, was a question of which the legislature was the sole judge. From their decision, as to the equity, policy, and wisdom of authorizing such a tax, there is no appeal. It is sufficient for the court to say that the taxes, authorized by the statutes now under consideration, were to raise money to be expended for the protection of the person, property, and rights of the prosecutor, and of every other citizen of the state. This was for a public purpose. The legislature had full power and authority under the constitution to decide, that the public good required that a general conscription should be avoided by the raising of moneys to pay bounties to volunteers. A draft, enforced by the officers of the general government, might have been detrimental to all classes, and to the best interests of society. A tax upon all, to save a class from a draft, was no more a tax for a private purpose than a tax levied to promote common school education. School taxes are levied upon all for the benefit, in one sense, of a class. But all the citizens are interested in having an intelligent rather than an ignorant population.

Nor is it perceived that the tax is any the less legal because prior to the passage of the act authorizing it, the funds, or a portion of them, had been expended without any express authority of law warranting such expenditure. The county was not originally liable for it, as was well understood by all parties interested. The legislature afterwards saw fit to ratify and confirm the action of the county authorities; made the county, in its corporate capacity, liable for the moneys which had been- expended, and provided by tax for their re-payment. This ratification by the legislature was, to all intents and purposes, as valid and effectual as if authority had been originally given to raise and expend the moneys.

The question before us is one of constitutional power on *541the part of the legislature to authorize the tax for the purpose and in the manner it did.

We are clearly of opinion that it had such power; that the tax complained of is legal, and that the judgment of the Supreme Court must be affirmed.

For affirmance — Elmer, Bedle, Dalrimple, Woodhull, Cornelison, Wales, Kennedy. 7.

For reversal — None.

Judgment affirmed.

Cited in Morrow v. Inhabitants of Vernon, 6 Vroom 492; Cleveland v. Board of Finance and Taxation of Jersey City, 9 Vroom 265.