Butler, J.
“ Towns, like other corporations, can exercise no powers except such as are expressly granted to them, or such as are necessary to enable them to discharge their duties, and carry into effect the objects and purposes of their creation.” Abendroth v. Greenwich, 29 Conn., 363. “ They act not by any inherent right of legislation, like the legislation of the tate, but their authority is delegated.” Daggett, J., in Willard v. Borough of Killingworth, 8 Conn., 254. Such is [125]*125the law as repeatedly recognized by this court, and it is quite too late to urge for them the possession of any inherent or prescriptive rights or powers, or any rights or powers not expressly or impliedly delegated to them by the legislative power of the state.
When in August, 1863, the town of Woodbury passed the vote complained of, they attempted the exercise of a power which had never been so conferred upon them, and their proceedings w.ere void. But by the act of November 13th, 1863, they were authorized by the. legislature to ratify and confirm those proceedings, and they did so ratify them, as the demurrer to the respondents’ answer admits. That authority and ratification must dispose of this case if it was competent for the'legislature to authorize their confirmation.
The votes complained of appropriated six thousand dollars to be divided among the men who should be drafted to fill the quota of that town, authorized by a law of the United States, and called for by the President, and for the purpose of assisting the citizens so drafted to obtain substitutes, or as a bounty if they personally answered the draft and served; and the votes further provided for raising the money by borrowing. This action involved an ultimate tax upon all the inhabitants of the town, for the purpose'of conferring a gratuity upon those who, by the law of the land, owed military service to the United States and were called on to render it, and because to render it was deemed a hardship upon those upon whom the draft had fallen or should fall; and that tax must presumptively fall upon some who were not subjects of military duty under existing laws, or liable to be made such under any reasonable and just law which congress have power to enact. Was it competent for the legislature to authorize the ratification of such action by the town ?
This question seems to be involved in another and higher one, viz., whether it is competent for the state legislature to give gratuities to such of our citizens as are called, under the allegiance they owe to the national government, and independent of the allegiance they owe to the state government, by distinctive and independent national enactments, to render [126]*126to that national government distinct and independent military service, and tax the citizens generally therefor. For, if they have the power to do it, they may apportion and impose the duty or confer the power of doing it upon the towns.
It is clear that with such action of the general government the state government, as such, has legitimately nothing to do. In authorizing, under the power to raise armies, a national conscription by the national government, the constitution so far forth ignores the state governments entirely; although it is otherwise in respect to the militia, for in regard to their organization and use, by another and distinct clause of the constitution and the laws of Congress enacted under and by virtue of it, the national government and the state governments act together concurrently or in harmony. It is clear therefore that the state government, as such, is under no obligation to aid the general government in such an exercise of its powers, and if it attempts to aid it is wholly a volunteer. By what principle then can the legislative branch of the state government be justified in taxing the people of the state, or authorizing their taxation by towns, to confer gratuities upon persons drafted by the United States.
Not by force of any specific authority conferred by the state constitution. That instrument does not confer any such power specifically. It provides for a collective bod}*- of persons, in whom the legislative power of the state shall vest, and by whom that legislative power shall be exercised, as an elective General Assembly, and confers upon them the whole legislative power as inherent in the people, except impliedly such as had been granted to Congress by the constitution of the United States and such as the General Assembly are expressly restrained from exercising by the bill of rights.
The question in hand therefore comes to this:—1st. Had the people of this state when they adopted the present constitution of the state, the inherent right, as part of the legislative power, to appropriate the money of all, as a gratuity to the few who should be called at any time by the national government into its independent service; and 2nd. If they had such power, [127]*127have they restrained the General Assembly from exercising it by any of the limitations of the constitution.
It must be conceded that the people, if convened and organized as a whole, and acting upon the fundamental principle that what the majority prescribe shall be law, could be under no restraint except that imposed by the principles of natural justice •; and the General Assembly in the exercise of that conferred legislative power, and irrespective of the bill of rights, are restrained by the same principles and no other. The first question, therefore, may be further narrowed to the inquiry, whether it is contrary to natural justice that A and B and the rest of the inhabitants of the state, should be taxed for gratuities to C and D, when G and D are called upon' to render military service to the general government. It should be observed that the bounty contemplated in the case put, as in this, differs from the bounty given by the United States, for that is in part payment for the service. It differs also from any bounty given to the militia in case they are turned over and mustered into the service of the United . States, for the organization and support of the militia is the concurrent duty of both governments. It differs also from the case cited from Root, (Hitchcock v. Litchfield, 1 Root, 206,) for there the troops were raised by the state and the state apportioned and imposed the duty upon the towns. It differs also from a case of bounty to volunteers raised by the state and turned over to the service of the United States, for in this instance, although the call was apportioned by the general government, for purposes of equality, among the states, districts and towns, it was apportioned and imposed directly upon the people as individuals, and not upon the states, districts and towns. The case is therefore entirely new, and the question returns, could the people as a whole, if they had retained the whole legislative power, by a major vote, tax A and B and the rest, to give a gratuity to C and D, because G and D were drafted by the United States; and if an infringement of the principles of natural justice, is it such an infringement that it is our duty to hold the law inoperative. Very clearly such a vote would not be such an infringement, for several reasons.
[128]
Free access — add to your briefcase to read the full text and ask questions with AI
Butler, J.
“ Towns, like other corporations, can exercise no powers except such as are expressly granted to them, or such as are necessary to enable them to discharge their duties, and carry into effect the objects and purposes of their creation.” Abendroth v. Greenwich, 29 Conn., 363. “ They act not by any inherent right of legislation, like the legislation of the tate, but their authority is delegated.” Daggett, J., in Willard v. Borough of Killingworth, 8 Conn., 254. Such is [125]*125the law as repeatedly recognized by this court, and it is quite too late to urge for them the possession of any inherent or prescriptive rights or powers, or any rights or powers not expressly or impliedly delegated to them by the legislative power of the state.
When in August, 1863, the town of Woodbury passed the vote complained of, they attempted the exercise of a power which had never been so conferred upon them, and their proceedings w.ere void. But by the act of November 13th, 1863, they were authorized by the. legislature to ratify and confirm those proceedings, and they did so ratify them, as the demurrer to the respondents’ answer admits. That authority and ratification must dispose of this case if it was competent for the'legislature to authorize their confirmation.
The votes complained of appropriated six thousand dollars to be divided among the men who should be drafted to fill the quota of that town, authorized by a law of the United States, and called for by the President, and for the purpose of assisting the citizens so drafted to obtain substitutes, or as a bounty if they personally answered the draft and served; and the votes further provided for raising the money by borrowing. This action involved an ultimate tax upon all the inhabitants of the town, for the purpose'of conferring a gratuity upon those who, by the law of the land, owed military service to the United States and were called on to render it, and because to render it was deemed a hardship upon those upon whom the draft had fallen or should fall; and that tax must presumptively fall upon some who were not subjects of military duty under existing laws, or liable to be made such under any reasonable and just law which congress have power to enact. Was it competent for the legislature to authorize the ratification of such action by the town ?
This question seems to be involved in another and higher one, viz., whether it is competent for the state legislature to give gratuities to such of our citizens as are called, under the allegiance they owe to the national government, and independent of the allegiance they owe to the state government, by distinctive and independent national enactments, to render [126]*126to that national government distinct and independent military service, and tax the citizens generally therefor. For, if they have the power to do it, they may apportion and impose the duty or confer the power of doing it upon the towns.
It is clear that with such action of the general government the state government, as such, has legitimately nothing to do. In authorizing, under the power to raise armies, a national conscription by the national government, the constitution so far forth ignores the state governments entirely; although it is otherwise in respect to the militia, for in regard to their organization and use, by another and distinct clause of the constitution and the laws of Congress enacted under and by virtue of it, the national government and the state governments act together concurrently or in harmony. It is clear therefore that the state government, as such, is under no obligation to aid the general government in such an exercise of its powers, and if it attempts to aid it is wholly a volunteer. By what principle then can the legislative branch of the state government be justified in taxing the people of the state, or authorizing their taxation by towns, to confer gratuities upon persons drafted by the United States.
Not by force of any specific authority conferred by the state constitution. That instrument does not confer any such power specifically. It provides for a collective bod}*- of persons, in whom the legislative power of the state shall vest, and by whom that legislative power shall be exercised, as an elective General Assembly, and confers upon them the whole legislative power as inherent in the people, except impliedly such as had been granted to Congress by the constitution of the United States and such as the General Assembly are expressly restrained from exercising by the bill of rights.
The question in hand therefore comes to this:—1st. Had the people of this state when they adopted the present constitution of the state, the inherent right, as part of the legislative power, to appropriate the money of all, as a gratuity to the few who should be called at any time by the national government into its independent service; and 2nd. If they had such power, [127]*127have they restrained the General Assembly from exercising it by any of the limitations of the constitution.
It must be conceded that the people, if convened and organized as a whole, and acting upon the fundamental principle that what the majority prescribe shall be law, could be under no restraint except that imposed by the principles of natural justice •; and the General Assembly in the exercise of that conferred legislative power, and irrespective of the bill of rights, are restrained by the same principles and no other. The first question, therefore, may be further narrowed to the inquiry, whether it is contrary to natural justice that A and B and the rest of the inhabitants of the state, should be taxed for gratuities to C and D, when G and D are called upon' to render military service to the general government. It should be observed that the bounty contemplated in the case put, as in this, differs from the bounty given by the United States, for that is in part payment for the service. It differs also from any bounty given to the militia in case they are turned over and mustered into the service of the United . States, for the organization and support of the militia is the concurrent duty of both governments. It differs also from the case cited from Root, (Hitchcock v. Litchfield, 1 Root, 206,) for there the troops were raised by the state and the state apportioned and imposed the duty upon the towns. It differs also from a case of bounty to volunteers raised by the state and turned over to the service of the United States, for in this instance, although the call was apportioned by the general government, for purposes of equality, among the states, districts and towns, it was apportioned and imposed directly upon the people as individuals, and not upon the states, districts and towns. The case is therefore entirely new, and the question returns, could the people as a whole, if they had retained the whole legislative power, by a major vote, tax A and B and the rest, to give a gratuity to C and D, because G and D were drafted by the United States; and if an infringement of the principles of natural justice, is it such an infringement that it is our duty to hold the law inoperative. Very clearly such a vote would not be such an infringement, for several reasons.
[128]*128In the first place, if it be conceded that it is not competent for the legislative power to make a gift of the common property, or of a sum of money to be raised by taxation, where no possible public benefit, direct or indirect, can be derived therefrom, such exercise of the legislative power must be of an extraordinary character to justify the interference of the judiciary ; and this is not that case.
Second, if there be the least possibility that making the gift will be promotive in any degree of the public welfare, it becomes a question of policy and not of natural justice; and the determination of the legislature is conclusive. And such is this case. Such gifts to unfortunate classes of society, as the indigent blind, the deaf and dumb, or insane, or grants to particular colleges or schools, or grants of pensions, swords or other mementoes for past services, involving the general good indirectly and in slight degree, are frequently made and never qrrestioned.
Third, the government of the United States was constituted by the people of the state, although acting in concert with the people of other states, and the general good of the people of this state is involved in the maintenance of that general government. In many conceivable ways the action of the town of Woodbury might not only mitigate the burdens imposed upon a class but render the service of that class more efficient to the general- government, and therefore it must be presumed that the legislature found that the public good was in fact thereby promoted.
And fourth, it is obviously possible, and therefore to be intended, that the General Assembly found a clear equity to justify their action. - *
Every citizen is bound to take up arms when necessary in defence of his government, not as a matter of strict law, but as an incident of citizenship ; and 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 on their ability alone to render the service or to render it with less pecuniary or social sacrifice, but on the wants of the [129]*129government and the supposed fitness of the class to subserve the purposes of the government with more ■ efficiency than others. But 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 or commute, for they have more generally accumulated property or received it by inheritance. Indeed if substitution and commutation are made elements of the conscription, and they were of the law in question, the ability to procure a substitute or commute 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 are drafted and serve or by making provision for the support of their families. ■ On this obvious equity rests the general law making provision for the families of all drafted men and their substitutes.
As therefore, if the people of the state collectively had retained all that portion of their legislative power not delegated to the Congress of the United States, it would have been competent for them to pass votes in reference to all the drafted men of the state like those which the respondent town passed, and as they have delegated their whole remaining legislative power to the General Assembly with certain exceptions contained in the bill of rights, it was competent for the General Assembly to do so, and therefore it was competent for them to delegate that power to territorial districts of the state or towns, and of course to authorize the towns to ratify votes of that character which they had passed without seeking beforehand such delegation of authority, unless the Assembly are restrained from the exercise of that power by some clause in the bill of rights contained in the constitution. And this leads to the second question, viz., whether there is any such prohibition in the bill of rights.
[130]*130The clause relied upon by the petitioners is that which inhibits the “ taking of private property for public use without just compensation.” But it is clear that the law in question was not passed in contravention of that clause of the constitution. The votes of the town did not contemplate the taking of any property within the .meaning of that clause. They appropriated money as a bounty or gratuity, and authorized the selectmen to borrow, it, and the legislature authorized them, by the act of November 13th, 1863, to lay a tax to pay it. If it be conceded that the money must be raised by tax, and that as a necessary consequence appropriating the money was equivalent to laying a tax, still the action of the legislature was not within the clause. Exacting money by taxation and taking private property for public use, are different things. Both, it is' true, are-in one sense the exercise of a right to take the property of individuals for public use, but there,is a broad distinction between them. Taxation exacts money from individuals as their share of a justly imposed and apportioned general public burthen, and the equivalent is presumptively received in the benefits conferred by the government. Property taken for public use from one or more individuals only, by right of eminent domain, is taken not as his or their share of an apportioned public burthen, but as something distinct from and more than his or their share of the public burthens, and therefore the justice and necessity of a constitutional provision for compensation. The clause referred to has no bearing on the case.
The superior court must be advised to overrule the demurrer to the answer and dismiss the bill.
In this opinion the other judges concurred.