State v. Jackson

31 N.J.L. 189

• Court: Supreme Court of New Jersey
• Decided: February 15, 1865
• Status: Published

Opinions

Elmer, J.

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 which more than the required number voted, resolved that the sum of thirty-one thousand dollars should be raised, and that the same or such part as should come into the hands of the collector should be applied to the payment of the commutation money for the exemption from the draft of such persons as should be drafted and accepted for the township of Delaware at the ensuing draft, the one now ordered.

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. Is the man who does either of the two things left to his-option, guilty of opposing or thwarting the object of the law t And if not, is the friend who aids him to do so guilty of any wrong? What the most loyal citizen may innocently do, or what his friends may aid him in doing, certainly cannot become disloyal because it has the sanction of a town meeting or of the legislature.

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 commutalion money the requisite substitutes would not be obtained. The draft fell only upon a portion of those actually enrolled, ■so that others upon whom it did not fall, or who perchance were not subject to enrollment, large numbers of whom it is well known, were actually received as substitutes, might have •been procured; and even those actually drafted might have •been willing to serve in the character of substitutes upon receiving the commutation money. If in point of fact it turned out otherwise, it does not follow that the act of congress or the resolution of the town meeting are therefore to be condemned. If the three hundred dollars prescribed in the law failed to produce as many substitutes as were desired, .it may have been and probably was occasioned by the substitutes procured in all the loyal states, and in almost every district of those states, by means of the much larger bounties provided for by voluntary contributions of money or by taxes .authorized by laws, the constitutionality of which has not been questioned.

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, beyond question that the best means of raising an army, or of arranging the details of a draft or the procurement of volunteers or substitutes, are subjects of very great difficulty,, which continue to tax to the utmost the wisdom of the ablest statesmen. What at one time may be deemed the measure-best adapted to obtain the men to compose our national forces,, at another time and under other circumstances may appear directly to oppose and thwart that all important object. In. view of all this uncertainty, it must be a plain and wilful conflict with the measures adopted by the general government,, that- will justify us in deciding that a tax, in express terms-authorized by the state legislature, is unconstitutional, and cannot therefore be collected.

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 powers are, and expressly provides that the powers not delegated to the United States by the consitutiou nor prohibited by it to the states, are reserved to the states respectively or the people. The power of taxation is beyond a doubt a legislative power, and except so far as it is restrained by the constitution of the United States, is in this state without regulation or limit.

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 well as the other loyal states, and must continue to be afforded. This is done in part by imposing taxes to defray the expense of bounties to volunteers and substitutes, and to increase the pay of the national forces, composed of citizens of the state. It is true that every such volunteer might be required to serve without any bounty or even without any pay, and in a certain sense, every citizen owes this duty to the government that protects him. There is however no similarity between a tax raised to take money from one man merely that it may be paid to another, and one raised to compensate a volunteer or a drafted man for performing a duty which might have been exacted of him by a government sufficiently despotic, without compensation.

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 substitutes, whatever might have been the cost, they would have shown more zeal to promote the object in view of raising an army; but a lack of intelligent zeal to promote this object, although quite sufficient to have justified negative votes in the town meeting, is not a sufficient ground for declaring a tax raised in a manner authorized by the law, illegal and void.

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 the usual maimer of making a new assessment. This he was not required to do; the aot directing him to make this assessment according to the valuation as made at the regular assessment, next before such special town meeting. No evidence has been produced, nor has it been suggested by counsel that any of the prosecutors or others have been assessed for property they do not own, or that any property or polls have been omitted which ought to have been assessed.

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.