Lead Opinion
The taxes complained of by' the prosecutors of this certiorari were ordered to be assessed by the vote of a special meeting of the inhabitants of the township of Delaware, in the county of Hunterdon, held May 17th, 1864, by virtue of a special act of the legislature, approved March 25th, 1864. Ads of 1864, p. 509. This act authorizes the said inhabitants to raise by assessment on the polls and taxable property in said township, such sum as those present and voting at such town meeting should decide to be necessary and proper, not less than 225 voting for the same, for the purpose of relieving the inhabitants of .said township from the burthen of a draft; which tax, when collected, was by the said act required to be paid out in such manner as should have been directed by the said town meeting.
A town meeting' duly held as prescribed by the act, at
It was insisted by the counsel for the prosecutors that this act of the legislature, or if not the act itself the use made of it by the town meeting, was so directly in conflict with the purpose and object of the act of the congress of the United States, entitled “an act for enrolling and calling out the national forces and for other purposes,” approved March 3d, 1863, as to render the whole proceedings unconstitutional and void.
By the provisions of this act all the able-bodied citizens of the United States, as well as certain foreigners, except as specially exempted, are required to be enrolled, so that whenever it may be necessary to call one the national forces for military service, the president is authorized to assign to each district the number of men to be furnished. The mode of drafting is prescribed, and the persons drafted are required to be notified to appear at a designated rendezvous to report for duty. Any person drafted may furnish an acceptable substitute, or he may pay to such person as the secretary of war may authorize to receive it, such sum, not exceeding three hundred dollars, as the secretary may determine, for the procuration of such substitute.
It is because the resolution of the town meeting made provision for carrying into effect one of the means for raising national forces, designated by the law of congress, and took no notice of the others, that it was insisted to be so directly in conflict with that law as to be for that reason unconstitutional and void. But there is nothing contained in that law which discloses any preference for one mode of proceeding over the others. Every drafted man reporting for duty is expressly authorized to furnish a substitute or to pay a specified sum to enable the government itself to procure one.
The great object of the law of congress undoubtedly was-' to raise men to compose an army, and not to raise money. But it is plainly apparent on the face of the law that congress expected, that besides obtaining men by means of a draft and by placing the drafted men directly in the ranks or by obliging them to procure substitutes, they might also-obtain them by requiring every drafted man who preferred such a course to pay a specified sum, to be applied by the government itself in procuring a substitute. It was urged in argument as a sufficient answer to this view of the subject,, that if all the drafted men of a district paid the commutation, as seemed to be intended by the resolution objected to, it would follow that no men would be obtained, and the government would be left without a soldier for its protection and the nation surrendered into the power of those who are warring, for its destruction. This argument assumes that we are wiser than congress. That body, including the president who approved the law, believed that the sum of three hundred dollars paid by each drafted man unwilling to serve in person, or unable or unwilling to pay more for a substitute, would enable the government itself to procure the needful substitutes; or at all events that it was Aviser to do without the soldiers rather than to make the burthen heavier than the people Avere prepared to bear. Can the legislature or the town meeting be held to have obstructed their action by adopting the same opinion ? If it turned out that both were mistaken, it surely cannot be assumed that either Avas guilty of anything Avrong or unconstitutional.
But it by no means folloAvs, as the argument so strenuously urged assumed, that if every drafted man paid the commuta
The statute book of this state shows that more than one hundred laws were enacted at the same session of our legislature, authorizing various districts to raise money and to incur debts for the payment of bounties to volunteers, who were received by the government as substitutes for the men required to be drafted. And it is a part of the history of our people and much to their honor, that in every state, and in almost every city, county, and township which remains loyal to the government of the Union, large sums of money have been raised and large debts incurred, generally by virtue of special authority from state legislation, for the same praiseworthy object. These proceedings have been universally and justly approved as patriotic and wise; and yet it might be very plausibly insisted, that they were in direct-hostility to this and other laws of the United States. They undoubtedly raised the price of substitutes beyond the limit contemplated in those laws, and enlistments in the army and navy were rendered difficult, if not impossible, and they -tended to exhaust the resources of the people. It is, indeed,
It was also insisted that the money required to be paid by the prosecutor’s as taxes, was simply money taken from one-citizen to pay the debt or duty owed by another, and that such a law is in opposition to the fundamental principles of our state government, and therefore void. The objection, if sound, applies to all those laws before mentioned, authorizing, the imposition of taxes to pay bounties to volunteers. Those-volunteers were procured after the draft had been ordered,, for the purpose of relieving the inhabitants of the districts-procuring them, from the burthen about to be imposed on them, and were directly credited to that object. The volunteers were paid heavy bounties to save the men actually drafted or who were liable to be drafted, from being obliged, to perform the duty of serving as soldiers or paying for substitutes. Every dollar raised from persons exempt from suck a draft, went as directly to pay the debt or duty of the men. drafted or liable to be drafted, as did the taxes now complained of.
The constitution of New Jersey vests the legislative power in a senate and general assembly, without undertaking to-define in what that power consists; differing essentially in that respect from the constitution of the United States, which,, intending to confer not general but only specific, although within their sphere, supreme powers, enumerates what, the
It may be, however, safely admitted, that the power of taking one man’s property and vesting it in another, is in no just sense a legislative power; and that a law which attempted to do this under the name of levying taxes would be wholly unauthorized and void. But before a tax expressly authorized by law can be held to be of this character, it must clearly appear that it could not have been intended for any governmental purpose.
Doubts have sometimes been expressed whether the state can impose taxes and expend the money thus raised in carrying into effect objects intrusted to the general government, which has ample powers of its own to fulfill its duties. From the first adoption of the constitution of the United States the practice lias been to do this; and the beneficial result of such a practice has never been more conspicuous than upon this recent occasion, when a great rebellion lias taxed the utmost powers of all the governments to suppress it. So closely indeed are the separate governments of the states united to the government of the Union, that it is impossible to say when and to what extent, the well-being and prosperity of the citizens of any particular state may greatly depend upon the laws of that state, which are intended to be in aid of the laws of congress. The state is prohibited by the constitution of the United States from keeping troops or ships of war in time of peace; but in a time of war with a foreign nation, or of war produced by a rebellion like that still in progress, the state may maintain an army and engage in the war. As this may be done directly, it may undoubtedly be done indirectly, by military aid to the general government. To a large extent this aid has already been afforded by this as
Bounties to volunteers and pay to soldiers and their families, are certainly legitimate expenses of the government. Whether the bounties were paid directly to the volunteers or substitutes, or to officers authorized to procure them at a price jimited by the government, can make no difference. Nor is it needful to inquire what motives may have induced those intrusted with the legislative power to authorize such expenditures. If may have been the belief that volunteers or substitutes would make better soldiers than drafted men; or it may have been some other motive equally prudent. That motives of a very powerful character were in operation was evinced by the general adoption of the practice, and by the fact that it was approved by the government and by all classes of the people throughout the loyal states. Much doubt as to the propriety of thus interfering was felt at the commencement of the proceedings; but these doubts soon gave way to the urgent necessity of the case, and heavy taxes and heavy debts were incurred, by general consent, for the purpose of relieving the inhabitants of most of the districts, of the burthen of a draft. It is very obvious now, with the knowledge we have of the circumstances attending a draft and the procuring of substitutes, that if the legislature or the town meeting had required a sufficient sum of money to be raised to secure the requisite number of volunteers or
Besides these objections there were several other reasons insisted on for setting aside these taxes, in whole or in a part, which remain to be noticed. It was urged that a larger sum was raised than was authorized by the town meeting. Upon referring, however, to the law, it appears that the third section expressly authorizes not only the sum ordered by the meeting to be assessed, but also “the expense incident to the assessing, collecting, and paying out the same.” It is jiot shown that the sum of $>776.96, added to the sum ordered by the meeting, was an unreasonable amount for the purposes indicated. The case, therefore, differs essentially from the tax held to be illegal in the ease of the State v. Bently, 3 Zab. 532.
Again, it was objected that the sum assessed to the polls was not what the act requires. The language is, that there should be assessed and raised by a poll tax on all married men of fifty ceñís each, and all unmarried men of one dollar each, on each and every four thousand dollars so assessed on said township, and in the same proportion on all fractions of the said four thousand dollars. In my opinion this language may be fairly interpreted as the assessor evidently understood it, to apply only to the assessment before mentioned in the act, which was to be of the money ordered by the meeting. At all events, the difference between the two modes of calculation affects the assessments upon property in respect to which the objection is made, in so slight a degree, that I do not think we are called on to interfere for this reason.
Another reason was that the assessor testified that he “ made no new assessment.” It is evident, however, he means only that he did not apply personally to every tax payer in
It appears, however, that two of the prosecutors, viz., William C. Veghte and Clarkson Hunt, were assessed as single men, although they had become manned men before the assessment was made. This, I think, was erroneous, so that the tax imposed on them should be reduced in the sum of three dollars and eighty-eight cents each, and in all other respects the assessment should be affirmed.
Chief Justice concurred.
Dissenting Opinion
dissenting. By the 13th section of the act of congress of the 3d March, 1863, for the enrolling and calling out the national forces, it is provided that any person who may be drafted into the service may, instead of going himself, furnish an acceptable substitute to take his ¡dace in the draft, or, if he shall not see fit to go into the service himself or to furnish a substitute, he has the privilege of paying to the government in lieu thereof, a sum of money not exceeding three hundred dollars.
In view of one of the drafts that had been ordered by the government, the inhabitants of the township of Delaware, in the county of Hunterdon, obtained an act of the legislature authorizing them to raise money by. taxation to relieve the inhabitants of the said township from the burthen of a draft. This act was approved on the 25th day of March, 1864, and it seems to authorize the clerk, when in the opinion of the township committee it shall become necessary, to hold a public town meeting for the purpose specified in the act, to call such meeting by setting up notices, &e.
The special town meeting seems to have been called and held, and it ordered and directed that the sum of $31,000 should be raised by assessment and taxation; and it further ordered and directed that the money so to be raised should be applied by the collector to the payment of the commutation money for the exemption from the draft then pending, of such persons as should be drafted and accepted for that township. That is to say, the meeting resolved and directed that if a person should be drafted and was willing to go into the servicie of the country, the township would give him nothing. If he were willing to furnish an acceptable substitute the township would give him nothing to aid him in so doing, but if he should prefer to do neither, but chose to remain at home and do nothing, the township would pay $300 to enable him to do so.
The assessor added to the sum of $31,000 ordered to be raised, the sum of $776.99 to cover expenses, losses, &c., and assessed the whole amount against the inhabitants of the township, the plaintiffs among the rest. As the quota of that township was 101 men, the amount assessed was $1476.99 more than was necessary to pay the sum of $300 for each man which the township was called on to furnish. To get this assessment set aside is the object of this certiorari.. Various reasons have been offered in support of this application.
First. It is said that this act of the legislature is unconstitutional and void, for the reason that it is in contravention
It is insisted that even if the act of the legislature be valid, still that the action of the township under that law made the whole proceeding nugatory, for the reason that it was intended to embarrass, ■ and did, in fact, embarrass rather than aid the government in its military operation. We have ■already seen that the money to be raised was to be appropriated, according to the directions of the special town meeting; and we have also seen that these directions were to use it in paying the commutation money, as it is called, for the men that should be drafted, and for nothing else. We can only ascertain the intention of the township from what it actually did; but whatever that intention may have been, it
The township, as such, was not bound to do anything to aid the government. Its claim was not upon the township but upon the men of the township. Each man in the township that was or might be drafted, had an undoubted right,, according to the act of congress, to pay his commutation; money of $300 and to do nothing else. And who can say that the township, if its people had been unanimous on the-subject, had not the right to aid their drafted men in doing so. This act of congress was manifestly intended to be as lenient as possible, for it said in substance to drafted and acceptable men, that, if they preferred not to go themselves, they might furnish substitutes on such favorable terms as. they might arrange for; but to save them from what might possibly have been an extortionate imposition as to price, it further said you need not be compelled to pay for substitutes,, in any event, over $300, and if you cannot procure them for that sum, we will take the money and procure the substitutes, ourselves. The township saw fit to direct and confine its bounty to this last alternative] and although it seems very much like a premium offered to keep their drafted men at home, still it is an alternative clearly presented by the act of congress, which 1 think the township, as between it and the government, had the right to adopt.
But had the township the right, even under the authority of the act of the legislature, to adopt this course as against its. own unwilling and resisting citizens? Was it not, as to them, a total perversion of the spirit and meaning of that act, and wholly different from what has occurred anywhere else. If the relief contemplated by the act had been extended alike to all their drafted men, whether they went into the service themselves or whether they furnished substitutes, or whether they chose to use the money to commute with the
It is further insisted that this assessment is illegal for the reason that the assessor assessed over $700 more than was ordered by the township meeting. This was for the purpose of meeting the expenses incident to the assessing, collecting, and paying out of the money. The assessor is expressly ordered to do this by the act of the legislature, and I do not see that he was wrong in so doing.
It also appears that the township directed the raising of $700 more than was necessary to pay the commutations of all the men which the township was liable to furnish, and the assessment is alleged to be erroneous for this reason, but this probably arose from not knowing at tlie time of the meeting the exact number of men that would be needed. If this excess of money bad been a very large one, it would seem as if the proceedings ought to be arrested on account of it, but as it was not, and as the quotas which the states, counties, and townships are liable to furnish, shift very much between the ordering and the completion of these drafts, and as the quota for that township, for auglit that appears, may have been reduced after the meeting was held, it would be, under the circumstances, I think, enforcing too rigid a rule to require perfect exactness in such a matter.
It further appears from the case, that the assessor made no new assessment against the tax payers and property of the township, as they then existed, by way of raising this money, but simply took and adopted the assessment precisely as it stood and had been made the year before. Ho seems to have been under the impression that he was required to do so, because, lie says, when speaking of certain of the assessments against some of the plaintiffs that he made them so from the fact, that he was to levy this tax from the former
It appears also as a matter of fact that some of these plaintiffs were assessed as single men who were married men at the time of assessment; and as no provision is made for an appeal, and as no session of the commissioners of appeal seems to have been held, and as no one was apprised by the assessor as to how he was assessed, no mode of correction was furnished. These last named assessments, therefore,
Assessment affirmed.
Reversed, 4 Vroom 450.