Thompson v. Inhabitants of Pittston , 59 Me. 545 ( 1871 )

Barrows, J.

The foundation of the plaintiff’s claim fails utterly, if c. 55, of the Laws of 1869, entitled, “ An act to render valid certain doings of towns, in voting commutations,” is found to be clearly beyond the limits of constitutional legislation. The presumption being that it was not so, the judge at nisiprius proceeded in accordance with the usual practice, upon the assumption that the act was valid and binding, and instructed the jury, among other things, “ that the only question they were called upon to determine, was whether the moderator and clerk were duly sworn,” and “ that if they should find that those officers were duly sworn before entering upon the discharge of their duties, their verdict should be for the plaintiff.” To this the defendants except.

It is manifest that the positions now taken by the plaintiff’s counsel that the validity of the act is not involved in the rulings or instructions of the court,' and that no question of its validity is raised by the exceptions, cannot be maintained. The instructions complained of did not involve the validity of the act, for unless the act was valid, the verdict could, in no event, be for the plaintiff.]

We come, then, directly to the question of the validity of the act.

It lias been for some time past nnder consideration in other cases. It must be met and decided, with the care and caution which its importance demands.

The limits of the constitutional power of the legislature to raise money by taxation, or to authorize towns to make grants of money which must be raised by taxation, have been recently discussed by this court. See Opinions of the Judges, 58 Maine.

We start, then, with the proposition which we think no one will gainsay, that if the grant made by vote of the town is purely a gratuity to an individual, and it is impossible to believe or imagine that the public can gain anything thereby, or that the public welfare can be thereby in any manner subserved, the grant is not lawful, and no legislation can make it so. We think it susceptible of positive demonstration, that the public, or the general government, which in this matter represented the public, could by no possibility gain anything by the action of certain towns in voting to drafted men sums required to pay commutation, or to reimburse the drafted man for moneys paid for that purpose.

In the emergency then existing, the country, the public, the government which represented both, had a right to the services of as many able-bodied men, within certain ages, as were necessary to protect us all against the machinations of treason, — had the right to draft from the whole number of those fit for military duty, so many as were required for that purpose. In the law regulating the draft, a certain sum was fixed and designated, the payment of which, by the drafted man, should be deemed an equivalent to the rendering of personal service or the sending of a substitute. The payment of three hundred dollars constituted that equivalent.

But when an able-bodied man -was drafted and accepted, the government held him for the performance of one of the three alternatives. He must either go himself, or send a substitute, or pay the three hundred dollars. To do one of these three things was a duty which he, as an individual, owed to the country, and his own proper person Avas pledged for the performance of one of them. If he declined to go, or send a substitute, before he could be relieved, lie must pay the three hundred dollars. It was his individual debt. By the draft and acceptance the public had secured the performance by him of one of the three alternatives. It is as plain as anything in arithmetic, that by no possibility could the public gain anything by having his town take his place in the payment of the money.

There was room to suppose that the grant of a bounty to him, or to his substitute, actually entering the service, might benefit the public by showing the sympathy of his fellow citizens, and thereby encouraging the soldiers to render better service. But three hundred dollars can bn no more than three hundred dollars, let who will pay it.- The only possible effect of the vote of the town is to substitute the money of the town for that of the drafted man.

Without such action the public would have either the service or its equivalent in money. .

With it the public can have only the money equivalent. We cannot imagine a case which would be more clearly and simply the assumption and discharge of a single citizen’s liability, without the remotest possibility of any benefit to the public accruing therefrom. It can wear no other aspect until it can be shown, either that the money was better than the service for which the law of the United States declared it to be simply an equivalent, or that three hundred dollars of the town’s money would go further in the purchase of such service, than three hundred dollars from the drafted man.

The able counsel for the plaintiff makes no futile attempt to show how it could be possible that some benefit to the public could be derived from such a grant of public money. The only suggestion he has to offer, in support of the validity of the statute, is that this court is committed to that doctrine by reason of having recognized the constitutional authority of the legislature to pass laws making valid the acts and doings of towns in voting the payment of bounties to volunteers, drafted men, and substitutes, who actually entered the service. Thus far this court has gone and no further.

But this falls very far short of the proposition which we are now called upon to entertain.

The difference between that class of cases and the present is radical and essential. Test them by the statement of principles with which we started. The difference is this. In the case of tire payment of bounties to those actually entering the service, the public had the benefit of both the service and the money granted, so far as the latter might be supposed to operate as a stimulus to greater exertion on the part of the soldier. But in the case of money voted for commutation, the town’s money only goes instead of an equal sum which the drafted man must pay, if lie would avoid rendering either personally or by substitute the service for which the law deems the money simply an equivalent. The public does not get from any quarter both the service and the money as it does in the case of money paid for bounties to those actually entering the service.

As we have just seen, the drafted man alone can, by any possibility, derive any benefit from the payment. What is given to the public in money is but an equivalent for the service, of which the country is by the same act deprived, and no remainder of benefit to the public is left. Now, in the case of the payment of bounties, it was not difficult to believe that the soldier, cheered by such substantial manifestation of the patriotic sympathy of his neighbors, and of their willingness to cooperate with him for the common defense, and freed from anxiety as to the maintenance of those who might be dependent on him, and relieved to a certain extent from the annoying sense of personal pecuniary loss, might, and would render more efficient service to the country than he would be able to do, if he went forth to his work bearing the whole burden of his private cares with him. There were, at least, a possibility of a common benefit growing out of the grant, which is not found here.

And herein is the fundamental difference between grants for bounties to soldiers who took the field, and grants to individuals to enable them to avoid taking it. No case can be found, in which this court has sanctioned the imposition of a public burden for purely private benefit and advantage.

We have never yet gone so far as to sustain an individual’s claim to reimbursement for furnishing a substitute, where the vote of the town has taken that form. No such case has ever come before us.

That case was fully considered in Massachusetts, and an elaborate opinion, adverse to the claim rendered in Freeland v. Hastings, 10 Allen, 570, in which (page 588) we find the following emphatic language. “ But the other and more decisive objection to the repayment by the town of money .paid for substitutes is, that if the language of the statute would warrant the raising of money for such purpose, the legislature have no power to confer such authority oh the town.”

This is followed on page 589 by a train of reasoning, which it would be found very difficult, if not impossible, to refute. And that reasoning applies even more forcibly and directly to such a claim as this.

In Barbour v. Camden, 51 Maine, 608, that portion of the vote of the town, the ratification of which was sanctioned by the court, was as follows: “... to pay to each such citizen so drafted the sum of three hundred dollars when mustered into the service of the United States, or to his substitute, when so mustered,” and the case finds that “ the plaintiff paid the substitute the town bounty of three hundred dollars and took said substitute’s order on the town of Camden for that amount,” in exchange for which the selectmen gave the plaintiff the order on which the suit was brought. So that the case was neither more nor less than a claim for the payment of a bounty to a soldier in the field. It is not easy to perceive how anything in the other authorities cited can be perverted to the support of the present plaintiff’s claim.

We are fully sensible that the duty imposed upon this court by the constitution and laws of this State of passing upon the acts and doings of the legislature, where they affect the rights of parties litigant before us, and of declaring such acts void of legal force and effect if they shall be found to be in contravention of the fundamental law of the State, ought always to be discharged with the utmost circumspection; that never, except when the bounds of constitutional authority have been clearly passed, should the power Tested in ns be exercised; that dne force is to be given to tlie presumption that the constitutional limits liaye not been transgressed, and only when this presumption is fully overcome should the act be pronounced void.

But Avhile we bear these things in mind we feel bound to declare our conviction that a law imposing a public burden, for purely private benefit, without the possibility of any corresponding public advantage, is a clear violation of the constitutional guaranties of the right of private property; that the action of towns in voting money for the payment of the commutation fees of individuals drafted into the public service is justly liable to this objection, and that, as a consequence,#any attempt on the part of the legislature to authorize or ratify such action on the part of the towns is beyond the sphere of constitutional legislation.

Accordingly we hold the attempted ratification of these acts and doings in c. 55 of the Laws of 1869, to be devoid of legal and binding force. Exceptions' sustained.

Applbtok, C. J.; CuttiNG, WaltoN, and DaNfouth, JJ., concurred. Dickersox, J., concurred in the result, and presented his views as follows: