Powers v. Shepard

1 Abb. Pr. 129, 45 Barb. 524, 30 How. Pr. 8

• Court: New York Supreme Court
• Decided: October 15, 1865
• Status: Published

Opinion

Clerke, J.

I. If the legislature of this State has the power to prescribe to any citizen what amount of money he shall pay for a substitute to represent him in the national army, it has the power to prescribe what he shall pay for any article of commerce, for any pleasure, or any social or domestic enjoyment. I admit that the'legislature is vested with all the powers of government, notdelegatedto theHnited States, and which have not been expressly or impliedly delegated to other departments of the government of "the State, and that there are no restraints upon its political power, except those which are declared by the constitution of the State. But, I,-nevertheless, think that it is not absolute and omnipotent, and that its power is limited to the legitimate sphere of political society. Constitutional government, under whatever form it may exist, is not based on the idea that all the conduct, and acts, and interests of a citizen, are the proper subjects of legislation. On the contrary, the tendency of such a system is to confine the action of government within ks limited a sphere as is consistent with the maintenance of the peace, good order, and progress of society. It recognizes the great truth, that the most important and sacred purposes and interests of society are not within the domain of civil law, but are regulated and allowed by the power of self-adjustment, which God has implanted through the balancing and antagonism in it, of the various needs and aspirations of the individuals of whom it is composed. ■ The moral and religious interests "of society, for instance, are out of the sphere of law,—out of the sphere of political government; they are merely .left to individual and social efforts, prompted by benevolence and conscience. Not only are such efforts. infinitely more benignant, but they are much more effectual than they possibly could be made through the cumbrous machinery, of State or any other political government. The rights of imperfect obligation, to employ a legal phrase, are much more numerous than those of perfect obligation. So it is with the economic interests of the individuals who compose society. Every individual, or rather the great majority of individuals, know much better tliau any- public authority can know, what price he should give for the various comr modities of necessity or luxury, which he needs. The interests of the buyer on the one hand, and of the seller on the other, will be much more likely to adjust the proper price, than any intervening authority can possibly do: on the contrary, the latter would, inevitably, produce disturbance and confusion, if' not distress, as similar interference did in the markets of Paris, during the first French revolution. I hold, therefore, that the exercise of such power by the government was never contemplated by the framers of our political constitutions, or by the people who ratified them; and that the powers of the legislature cannot be extended so far as to dictate to individuals what price they shall give, or what price they shall receive, for any thing which they may want to buy or to sell. If it possessed this power, for instance, of dictating what price citizens should give for any article of dress, it could prescribe what kind of dress they should wear; and thus we may, during any legislative session, hear that we had returned to the days of sumptuary laws. Formerly, in England, penal laws were enacted by its omnipotent Parliament, to restrain excess- in áppearel,—chiefly in the reigns of Edward HI., Edward IY., and Henry YHL, against piked shoes, short doublets, and long coats; all of which, Blackstone tells us, were repealed by statute (1, Jac. I., c. 25). But, he remarks, as to excess in diet, there still remains one ancient statute unrepealed (10 Edw. 3, c. 3), which ordains that no man shall be served at dinner or supper, with more than two courses, except upon some great holidays, there specified, in which he- may be served with three.

Can we believe that such things’, in any age of the commonwealths of America are cognizable by laws, or that the people of any of them delegated such power to their legislature. No; the legislative power of America is not omnipotent in this sense; all regulations relative .to private manners and habits, and to prices and expenses, are not within the domain of civil law. The possession of such power belongs alone to absolute governments, or to Parliaments, which claim omnipotence. A power so infinite is inconsistent with the character and design of constitutional republican government. All the political power which the people, in their sovereign capacity, can, consistently with this character and design, exercise, has been delegated to the legislature; but. nothing more. It can no more, prescribe to us what price we shall pay for a coat, or for a substitute in the army, than it can prescribe what kind of shoes we shall wear, or how many courses we shall have for dinner. Ho government possessing such power could be called free; and yet in framing the present constitution, the people declare that they establish it in gratitude “ to Almighty God for their freedom.”

II. Again, even if the legislature possessed this power, I think an' act of this kind, so far as it interferes with individual freedom of action, should be strictly construed. Like penal acts,' and acts in favor of corporations or particular persons, acts in derogation of common right should not be extended beyond their express words or clear import. This act prohibits the payment of a greater amount than three hundred dollars for a one year volunteer or substitute, four hundred dollars for a two years’ volunteer or substitute, and six hundred dollars for a three years’ volunteer or substitute; that is, no volunteer or substitute shall receive a larger amount for these different terms of service, than the respective sums mentioned.

This action, however, is not to recover money paid to volunteers or substitutes, but money which the defendant promised to pay the plaintiff for furnishing volunteers or substitutes. This money, it is to be fairly presumed, not only included the sums paid to the volunteers or substitutes, but, also, such sum as would be a compensation to the plaintiff for procuring the volunteers or substitutes. It, certainly, would not be just to expect that this plaintiff should perform services without some compensation. Like any other agent or servant he is entitled to compensation; his services were exceedingly useful to the plaintiff, and could not be rendered by him without considerable labor and trouble; and the difference between the amount of the bounty allowed by the act and that promised to be paid by the defendant, may be deemed the measure of the plaintiff’s compensation. It does not appear in the complaint, that the volunteers or substitutes received more than the act allows.

The demurrer must be overruled with costs, with liberty to defendant to answer within twenty days on payment of costs of demurrer.