Bowles v. Landaff , 59 N.H. 164 ( 1879 )

In the exercise of powers which are not contested in this suit, and which include authority "to provide for calling forth the militia," congress passed the act of March 3, 1863, entitled "An act for enrolling and calling out the national forces, and for other purposes." By that act, all able-bodied men, deemed of military age, who were citizens of the United States, or had formally declared their intention to become citizens, with certain exceptions, were declared to be the national forces, liable to perform military duty in the service of the United States. "For greater convenience in enrolling, calling out, and organizing the national forces, and for the arrest of deserters and spies," the act provided that the United States should be divided into districts, of which the District of Columbia should constitute one. Where there were congressional districts, their boundaries were adopted as the lines of enrollment districts. Other parts of the country, having no congressional districts, were to be divided into enrollment districts by the president. For each district, a board of enrollment was established, to be appointed by the president. Each board was authorized to divide its district into sub-districts of convenient size, and was required to appoint for each sub-district an enrolling officer, whose duty was to enroll all persons subject to military duty. All persons thus enrolled were declared to be subject, for a certain time, to be called into the military service of the United States. The president was authorized to so assign to each district the number of men to be furnished by it as to equalize the numbers among the districts of the several states. Thereupon it was the duty of the enrolling board to make a draft. The persons drawn were to be notified to appear at a designated rendezvous to report for duty. Any person drafted and notified to appear was allowed to furnish an acceptable substitute, or pay a sum, to be fixed by the secretary of war, not exceeding $300, for the procuration of such substitute. Such person so furnishing a substitute, or paying the money, was discharged from further liability under that draft. Any person failing to report, after due notice, without furnishing a substitute or paying the required sum therefor, was a deserter. Any person enrolled and drafted, who furnished an acceptable substitute, was entitled to receive from the board a certificate of discharge from such draft, which exempted him from military duty during the time for which he was drafted, and such substitute was entitled to the same pay and allowances as if he had been drafted. The president was authorized to call forth the national forces, by draft, in the manner provided in the act.

Taxation is an equal division of public expense among those for whose benefit the expense is presumed to be incurred. The cost of the war of 1861 was a public expense; but neither the cost of the plaintiff's commutation, nor any part of the duty of raising armies, was put upon the defendants by the act for enrolling and calling out the national forces. By draft, in the execution of that act, the federal government called forth as many militia-men as it thought necessary, to perform a service that was due from them to the Union. Under that act, the plaintiff, being a member of the national forces, was, by federal officers, enrolled and called out. The act operated upon the militia directly, by federal instrumentalities, and not through any state or municipal agency. For some reason, the method of calling out the militia which congress adopted was purely federal. By the statute, no duty was put, or authorized to be put, upon all the people of the districts or sub-districts, or upon tax-payers as a class. The board could form the sub-districts without regard to the boundaries of counties or towns, or school or highway districts. The adoption, by the board, of town lines for the lines of sub-districts, imposed no duty upon towns. The amendatory act of Feb. 24, 1864, passed after the plaintiff was discharged, made no change that would have affected this case if it had been passed before he was drafted. The second section of that act required the quota of each sub-district to be, not in proportion to the population or taxable property of the sub-district, but in proportion to the number of men resident therein liable to render military service. What was called the quota of Landaff was the quota of the militia of a federal sub-district.

The plaintiff was not called out in consequence of the defendants' failure to perform any duty; and his commutation did not relieve the defendants from any liability. The sum paid by him for the procuration of a substitute was not paid upon or in pursuance of any contract between him and the defendants, or upon any promise made or inducement held out by the defendants. The transaction was between the federal government, calling out the Union forces, and the plaintiff, called out by that government as a member of those forces, and electing to pay that government for the procuration of a substitute. In that affair the defendants were not delinquent, nor a party. The plaintiff was an inhabitant of three state municipalities, — county, town, and school-district. One of them had no more federal power than the other to pay the expense of procuring a substitute for him. Neither of them was required or authorized by the United States to raise national forces, or to raise money to obtain releases of the obligations of service due to the United States from national forces whom the United States called forth. A federal duty of the plaintiff was declared and enforced by the conscription act. Neither by that act, nor by any provision of the constitution or laws of the United States, were the defendants required or authorized to perform that duty.

"Every member of the community has a right to be protected by it in the enjoyment of his life, liberty, and property. He is, therefore, bound to contribute his share in the expense of such protection, and to yield his personal service, when necessary, or an equivalent." New Hampshire Bill of Rights, Art. 12. Service was due, not merely from those who had taxable property, but from every member of the community, because every member had a right to be protected by the community in the enjoyment of life, liberty, and property. The call, made upon the plaintiff by the draft, was not caused by any fault of the plaintiff or the defendants, the sub-district or the district, the state or the federal government, the tax-payers, the able-bodied, or those who were neither tax-payers nor able-bodied, or all the people of the state. The whole population were not called to the field, because it was not necessary or expedient to call the whole, as it is not necessary or expedient to summon the whole at once to serve as jurors. Calling those who for any reason were incompetent for the work would have been maladministration. The necessary and expedient quotas of persons competent for jury service are selected by lot. The necessary and expedient quotas of persons competent for military service were selected in the same way. The plaintiff was summoned, not because he owed a service and others did not, but because, from all who owed service, as many of the competent as were wanted were properly selected by lot; and the lot fell upon him. The service which he was called to render was no less a personal service due from him, than it would have been if all had been called forth to yield the service due from all.

As the conscription act shows no congressional intention to authorize the imposition of any duty or the bestowal of any authority upon the defendants, it is not necessary to consider the question of congressional power over state municipalities. If congress could require and had required the towns of New Hampshire to perform a duty of raising troops, and the plaintiff had been drafted in consequence of the defendants' neglect of that duty, the practical operation of the delegation of power to towns by the state act of 1874 would have been to put one town's quota of a federal burden upon their tax-payers, and to leave another town's quota of the same burden upon their conscripts. And one question would have been, whether, upon constitutional principles of equality, any New Hampshire power of legislation is capable of such an act.

When property of individuals is taken to satisfy an execution against a town, they may recover, from the town, remuneration for their compulsory payment of the town's debt. G. L., c. 239, s. 10. The legislature have not delegated to the towns the power of deciding, in such cases, whether they will indemnify the payers of their debts or not. The delegation of such power to towns might result in the payment of one town's debt by the town, and the payment of another town's debt by a property-owner selected by the sheriff. Had the power of granting and withholding indemnity been delegated, there would have been such a statutory provision for an- unequal division of public burdens, as the act of 1874 would have been if the conscription act had made military service a municipal obligation.

The plaintiffs contends that the defendants had a local interest in keeping their citizens at home, away from the dangers of the war. The plaintiff did not pay for the procuration of a substitute at the defendants' request, or on the defendants' promise to indemnify him. He says, in the declaration, he paid the money to avoid military service. After he paid it, the town passed the vote to pay him the same sum. The vote was passed six months after he was released from his obligation to go away; and the act of the legislature, confirming the vote, was passed nine years after the close of the war. There was no action of the town or the legislature by which the plaintiff was kept or induced to stay at home. Nothing was done, promised, or authorized, by the town or the legislature, for the purpose of keeping him at home, or preventing his going as a conscript or as a volunteer. And what effect such action or purpose would have in a hypothetical case, we need not inquire.

When the town voted, in 1864, to pay the plaintiff the sum by him paid in 1863, the town had no legal authority to pass the vote or pay the money; and this action could not have been maintained before the enactment of c. 60 of N.H. Laws of 1874. If he had had a right of action before the passage of that statute, this action would have been barred by the statute of limitations. The only question is, whether a right of action was created and given to him by that statute.

Legislative power can be delegated to towns only in local town affairs; and a public expense, not of a local character, cannot be unequally divided among the towns. The legislature cannot give towns an option of taxation for a purpose not local, and cannot compel one town to build a state-house, or state prison, or to pay more than their share of any public expense. Whether the legislature could, directly and uniformly, out of the state treasury, pay the United States the expense of procuring substitutes for national forces called forth from New Hampshire in September, 1863, or could require all the towns to pay that expense under an equal apportionment and uniform rule, or could in any way proportionately put upon towns a duty of filling the federal ranks, is a question not raised by this case. The provision of the act of 1874 ratifying the defendants' vote, if regarded as equivalent to a delegation of legislative power to the defendants, was unauthorized, because the procuration of substitutes for the militia called forth by the draft of September, 1863, was not a subject of local municipal legislation. And whether the ratifying provision is regarded as such an act of delegation, or as an act of the legislature making the defendants the plaintiff's debtor without such delegation, it was unauthorized because it was unequal taxation. It unequally divided among the towns an expense not of a local, municipal character. It authorized the imposition upon Landaff tax-payers of a non-local burden not put upon tax-payers in all other towns.

Raising men and money for the war was not one of the defendants' local affairs. What might legally have been done for local defence, with or without federal or state authority, if the defendants had been in danger of invasion, is not a material inquiry in this case. The war was carried on for such a purpose, and at such a distance from Landaff, that the interest, great or little, which the tax-payers of that town had in it was no more a local concern of Landaff than their interest in the recapture of New Orleans. No local interest is alleged in the declaration, and nothing that can be regarded as a local interest has been suggested in argument. The war, the act of calling out the plaintiff, the acceptance of $300 for the procuration of a substitute for him, the object to be accomplished by calling him out and accepting $300 as equivalent to a substitute, and the choice of a method of accomplishing that object, were national and not local. In contemplation of law, they were as much the business of all the people of the United States as the erection, use, and defence of a custom-house. The power of providing for the prosecution of the war was not a power of local, municipal legislation, that could be delegated by the state to the towns, and left to be used by some of them and not used by others.

The plaintiff's duty was alternative. He could perform personal service, of which the monthly pay was fixed by congress and paid by the nation, or he could furnish a substitute, or pay the nation $300 for the procuration of a substitute. The duty was not less his personal national duty than it would have been if the last two alternatives had been omitted. The conscription law made it immaterial, so far as this case is concerned, whether he joined the army, furnished a substitute, or paid $300 for the procuration of a substitute. The conscript who served was not less entitled than the plaintiff to be paid $300 by the town in which he lived. If the plaintiff were entitled to that sum, he would have been not less entitled to it had he gone to the war. If he had answered the call by bearing arms, he would have performed his public militia duty, and not the duty of Landaff. If he had performed that duty by service instead of payment, the payment to him of $300, like his service and monthly wages, would not have been one of Landaff's local affairs. And his performance of his federal duty by payment of $300 was no more a local affair of Landaff than his performance of the same duty by personal service would have been.

The law under which he elected to pay money for the procuration of a substitute was an exercise, not of the federal power of taxation, but of the federal power of requiring the militia to perform their federal duty. And if it had been federal taxation, it would have been a division of a national expense incurred for the maintenance of the Union. It would have been taxation for a national and not for a local purpose. The expense of the war was not local in its legal character, and could not be unequally divided a delegated state power of taxation exercised in some towns and not exercised in others. It would be immaterial whether the payment made by the plaintiff were his performance of his federal tax-paying duty, or his performance of his federal military duty by substitute. In either case, the inequality of conscripts, paid $300 in some towns for the performance of their federal duty, and not paid that sum in other towns for the performance of the same duty, could not be legally effected by a delegation of legislative power.

Whether all conscripts who performed their federal duty by personal service, or by furnishing a substitute, or by paying $300, should be paid $300 each, or any other sum for their performance of that duty, is not a local, municipal question, to be decided by and for one town in the affirmative, and by and for another in the negative. The expense of paying for the performance of that duty cannot be unequally divided among New Hampshire towns, either by the legislature or by a municipal exercise of delegated legislative power. Whatever the state can or cannot do towards an equalization of burdens, and whatever it can or cannot do towards the reward of persons who, by service or payment, perform their military or civil duty to the state or the Union, neither the power of taxation, nor any other constitutional power, can, in some towns, leave upon the national forces the national duty to which they were called in September, 1863, and in other towns transfer that duty to the tax-payers.

The judicial service of juries is a public duty which the state, by enrollment and draft, requires some of its citizens to perform. In principle, the jury conscription act (G. L., c. 213) and the militia conscription act of March 3, 1863, are much alike. The quotas of jurymen are assigned so that each town "may furnish its proportion of jurors in each year." Their service is compulsory, and their compensation, like the compensation of drafted militia, is fixed by statute, and not by contract, — except so far as the constitution regards the statute as the execution of the social contract by which government is established and its power determined "when men enter into a state of society." Bill of Rights, arts. 1, 3. Whatever payment for jury service can or cannot be made by general law, operating retrospectively upon all jurors and all tax-payers of the state or of one county, or upon jurors drawn in a particular year, or for a particular term of court, or for the trial of a particular case, an act delegating to towns a legislative power of deciding whether they would or would not grant their jurors a certain remuneration would lack an essential element of uniformity. For equal service on the same panel, a Landaff juror being paid by his town, and a Haverhill juror not being paid by his town, either the former would be overpaid, or the latter would not be paid in full. The public duty of fully compensating them (Bill of Rights, art. 21) being unequally performed, would not be constitutionally performed. There would be a violation either of the Haverhill juror's constitutional right to be fully compensated, or of the Landaff taxpayers' right of contributing no more than their share of public expense. There would be an unauthorized disparity in the conditions of the jurors, and in the conditions of the tax-payers, of the two towns. A burden would be unequally divided, and the unequal division would not be taxation. Jurors and tax-payers would have cause to complain that the arbitrary discrimination was not a rule of action in a legal sense, and was not law in a constitutional sense. The governmental order given by Landaff for the transfer of property from tax-payer to juror, and not given by Haverhill, justified on no ground of local legislation, would not be a constitutional observance of equal right. And it would be immaterial whether the order, not given for Haverhill, were given for Landaff by the state, or by Landaff, wielding a so-called delegated power of the state. The delegation of the power would be a cession of a nonexisting power of introducing unequal conditions.

Jury trial being a constitutional right, jury service is necessarily a constitutional duty: and protection by force as well as by jury trial being a right, military as well as civil service is a duty. The express recognition of the duty of jury service, in article 21 of the Bill of Rights, is not stronger than the recognition of the duty of military service in articles 12, 13, 16, and 24 of the Bill of Rights and articles 51, 53, 54, and 55 of the second part of the constitution. The plaintiff's obligation of federal militia service is as indisputable as his obligation of state militia service. And for the service he rendered, he is not entitled to compensation from the defendants, as he would not have been if his call had been to federal jury service, and the act of 1874 had been an act to authorize towns to pay their citizens for such service. That act, being a provision for an unequal division of expense, is unauthorized. On the question whether an act making an equal division would have been valid, we express no opinion.

Demurrer sustained.

FOSTER, J., did not sit: BINGHAM, ALLEN, SMITH, and CLARK, JJ., concurred; STANLEY, J., concurred in the result.