Tyson v. School Directors , 51 Pa. 9 ( 1866 )

The opinion of the court was delivered, by

Thompson, J.

— The point which ayíII engross our attention in this case is, whether the school directors of Halifax toAvnship are authorized, by the special act of the 25th August 1864, to levy and collect a tax to repay money borrowed to reimburse the “ Bounty Association of Halifax Township” for money expended by it to procure volunteers to fill the quota of the township under the call of the President therein mentioned for troops. Other questions are incidentally discussed in argument; but the material point is this mentioned, and to it this opinion will be confined, without the expression of any opinion on the others.

The act mentioned “ authorizes and requires” the school directors to borroAY money to reimburse the “ Halifax Bounty Association” moneys advanced to free said toAvnship from the draft, &c.

The first inquiry therefore is, were the moneys paid out by the association, advancements in aid of the township AYithin the meaning of the act, or only an appropriation by it of the v.oluntary contributions of its members to relieve themselves.

The expression “ moneys advanced” in its connection in the act must be understood in a business or commercial sense, and that is defined by Webster, to be “ giving beforehand, furnishing of something on contract, before an equivalent is received, as money or goods, towards a capital or stock, or on loan. A furnishing of money or goods for others in expectation of reimbursement.”

We are bound to regard the statute as an authority to reimburse what was intended by the association as advances made to the toAvnship, with the intent or understanding, to be reimbursed or-returned to those contributing. This was the light in which the learned judge beloAV regarded the terms used; and unless this appears in support of the present levy by the school directors, they are acting without authority. But the learned judge, if I properly comprehend his meaning, did not give sufficient importance to these terms, and hence I apprehend he fell into error. He does not seem to have considered it material whether the association paid its money voluntarily in aid of its own members, of expressly to aid the township in saving its people from a draft, with the understanding that it was advanced in the character of a loan, if the legislature chose to direct its repayment, and the school directors chose to act upon the authority conferred. This we cannot agree to. Such an enactment would not he legislation at all. It would be in the nature of judicial action it is true, but wanting the justice of notice to parties to be .affected by .the hearing, trial, and all that gives sanction and force to regular judicial proceedings; it would much more resemble an imperial rescript than constitutional legislation; first, in declaring an obligation where none was created or previously existed ; and next in decreeing payment by directing the money or property of the people to be sequestered to make the payment. The legislature can exercise no such despotic functions, and as it is not apparent in the act that they attempted to do so, we are not to presume they did. They evidently intended the advancements to be reimbursed, to be only such as were made on the faith that they were to be returned.

' Construing the' act in pari materiá with the general act passed on the same day and on the same subject, — and we think we ought so to construe it, 1 Kent 63, — such reimbursements are required by. the first section of the act, Pamph. L. 1864, p. 185-6, to be made to parties making advancements .to the municipal districts therein mentioned under an understanding or agreement that they would be reimbursed. As already seen, this is the commercial meaning of the words to “‘advance money,” and is consistent with the other legislation on, the subject, and in pari materiá. Moreover, the legislation would not be unconstitutional, as it would be in the aspect above noticed.

Taking this for the meaning of the authority conferred, was the money expended by “ the bounty association,” contributed by its members with, a view to aid the township to free itself from the draft, and with an understanding that it was to be reimbursed, or was it voluntary and to free themselves from the draft or liability to be drafted ? ,

This is a most material part of the defence to the bill, and the first member of the proposition is alleged in answer to the charge of the bill, but it is claimed that the last part alone is true ; does the proof sustain this answer ?

After a-most careful examination of the proceedings of the association, nothing like an assurance of repayment to the members of it is to be found, excepting that at the last meeting,' ás I understand it to have been, held on the 28th of July 1864. On that occasion, as the minutes show, the president, after ‘stating that the county commissioners had refused to levy a -tax for the payment of bounties under the call for 500,000 volunteers, expressed the opinion, it was ho more, for want of authority, that all payments to the association and expended by it would be considered as loaned to the township, and the belief that the legislature “ would so amend the law as to enable us to throw'the expense on the township.” This was not in shape an agreement, for the president neither so represented, nor had the authority to do so, nor was it anything from which an understanding to the effect that the parties paying would be reimbursed, nor is there a syllable to show that any one did contribute on the faith of it. The largest portion of the funds had been collected and expended before that time.

• But to take a step backwards: does it appear in the proofs that the association was organized for the purpose of aiding the township to free itself of the draft, or was not the purpose of the association formed to free its own members from it ?

The theatre of its action was exclusively the ’township of Halifax— its members were not liable to draft elsewhere. In protecting themselves from the draft they necessarily relieved the township to that extent. This fact does not prove that they were acting for the township. .In fact, that corporation was not at the time acting for itself or asking aid. The fact of contributing to the township, or rather advancing money to it with an understanding to be reimbursed by it, is a fact to be proved, and cannot rest in presumption. But is the fact proved ? Certainly I have seen no evidence to that effect. I think that it appears by the proceedings of the association in making their organization and afterwards, that the sole object of its care and effort was not the township, b]it its own members.

The first of the preliminary resolutions, passed as introductory to the constitution and reported by the committee on organization, declares “ that we the citizens of Halifax township who are subject to military duty, do hereby form ourselves into a society whose object it shall be to raise money, offer bounties, procure voluteers for the United States service, and have them credited to our township against the draft.” All this the association proposed to do themselves, and not to aid the township.

But the third resolution is still clearer as to the object. It declares, “that in case many who are subject to duty, hang back, thinking to allow the society to clear them, we will then report to head-quarters every man who is not properly enrolled, allow the draft to take place, and use the funds of the society to pay the commutation of such of its members as may be drafted.”

Nothing is plainer than the intention here declared — that the society had in view the mutual protection of each member without reference to the township, further than its assigned quota.

The constitution itself evinces fully the same purpose. In’art. 6, it is provided that if the funds of the association are not sufficient, and a draft takes place, they are to be retained until after the draft, and then “ those of the members drafted are to be assisted to the extent of the last dollar in the treasury.” Consistently with this object, at the meeting of the association on February 19th 1864, it was resolved that after the next meeting the “ doors of the society will be closed, and the whole care of the association directed towards securing its own members from draft, while outsiders must take care of themselves.” Accordingly at the next meeting it appeares by the minutes, that the books were opened and membership solicited — whether ever opened afterwards for that purpose, we do not know ; it does not appear.

This is the proof on these points and necessary to the defence, viz., that the money was advanced for the township on the understanding to be reimbursed. Had anything of the kind been in view of the association it would doubtless have appeared on the minutes, for they are exceedingly well kept, and' easily to be understood. There is no other testimony in the ease. We think the complainants have established their case, and that the terms of the act do not cover the case of mere voluntary payment of moneys, contributed as a mutual fund to save the contributors from draft. The legislature is not to he presumed to have attempted to exercise the power to compel the reimbursement of mere voluntary contributions, let the object he ever so beneficial, praiseworthy, or patriotic. We must therefore reverse the decree of the court below, and decree that ,the respondents be enjoined from collecting any portion of the sum of $23,500, assessed to. reimburse the Halifax Bounty Association for money paid out by it'to save the members of the association from the draft mentioned in the act set forth in complainants’ bill.

The proof has failed to establish the fact that the money was advanced for the township; and of necessity no understanding or agreement that it should be reimbursed by the township could have existed. The case proved does not bring the action of the school directors within the terms of the act, and for that reason their action cannot be sustained.

Decree. — This cause came on to be heard at the May term of this court, for the Middle District, held at Harrisburg, and was argued by counsel. And now, June 25th 1866, it is considered, adjudged, and decreed, that the decree of the Court of Common Pleas of Dauphin county, made therein, dismissing the complainants’ bill, be reversed, and the defendants, and every of them, their agents, officers, and all persons acting by their authority, and every of them, be and they and each of them are perpetually enjoined from levying and collecting, or collecting, being already levied, the sum or any portion of the sum of $23,500 assessed. by them upon the township of Halifax, in the county of Dauphin, under pretence of reimbursing the “Bounty Association of Halifax Township,” otherwise called in the Act of Assembly of the 27th of August 1864, the “ Halifax Bounty Association,” for moneys alleged to have been advanced by said bounty association to the township of Halifax, and from paying over to said association any moneys which may have been collected under that pretence, and that the respondents pay the costs of the suit.