State v. Jackson , 33 N.J.L. 450 ( 1867 )

Zabriskie, Chancellor.

The tax confirmed by the Supreme Court in this case, was assessed by virtue of a special act of the legislature, passed March 25th, 1864. It was an act to authorize the township of Delaware to raise money by taxation to relieve its inhabitants from the burthen of a draft. It authorized the inhabitants at a special town meeting to be held for that purpose, to raise such sum as they Should decide to be necessary for that object. The money voted was within ten days to be assessed upon the polls and personal property of the tax-payers, according to the valuation in the next preceding assessment, and was to be paid out for the purpose of relieving the inhabitants from the burthen of a draft, in such maimer as should be directed by that town meeting.

At a town meeting duly convened, it was resolved to raise thirty-one thousand dollars, and that it should be applied, when raised, to the payment of the commutation money for the exemption from draft of such persons as should be drafted and accepted for the township.

The assessor made the assessment by copying not only the valuation of property, but the names of the polls, and the lists of taxable property from the duplicate of the last assessment, without applying to the tax payers, or using any means to ascertain the polls or actual taxable property at such assessment.

It is contended that this tax is illegal, and should be set aside as against the prosecutors, for two reasons.

The first is, that this money was appropriated by the resolutions directing it to be raised to relieve the township only by paying the commutation of such drafted men as elected to stay at home and procure no substitute; it could not be used to relieve such of the inhabitants as should be drafted and elect to serve, or send substitutes in their places. That it thus offered a premium at public expense to those only who should refuse to aid the government, by furnishing men for the war. That in this way the effect of the appropriation was to obstruct the operation and execution of the act of congress for enrolling and calling out the national forces, and to embarrass the government in raising men to carry on the terrible war in which it was engaged.

The act of congress of March 25th, 1863, for calling out the national forces, in the thirteenth section provides that any person drafted may furnish a substitute, or that he may pay to the government three hundred dollars for the procuration of such substitute.

It' is contended that the action of this township tended to defeat and obstruct the operation of the act of congress: and its object, the raising a military force, which the preamble declares was. necessary to suppress the rebellion, and that this effect was produced by taking away from the inhabitants of the township all pecuniary inducement to enter the service.

It is not disputed that any legislation by the state or its municipal corporations, contrary to an act of congress, or which obstructs the federal government in performing its functions, is invalid. It need not be in direct opposition to an act of congress, or in terms annul it, but if such legislation tend or may tend to defeat its operation, the legislation is void.

On this principle, taxing federal bonds or a bank chartered by congress for government purposes, has been held to be illegal, although no federal legislation forbade it.

The question raised and debated in this case is, whether this appropriation of the money for commutation only, was calculated to defeat or obstruct the operation of this act of congress, in the declared object it had in view, raising an army to suppress the rebellion. If it caused no other impediment to the raising of men, than was caused by the provisions of the act itself, it is clear that this appropriation is not illegal, and will not vitiate the assessment.

It is contended, for the township, that it only did what the act of congress permitted the drafted men to do, pay three hundred dollars to relieve him from service, and enable the government to procure a substitute.

This reasoning would be sound, were it not that the act of congress placed before the drafted wan an inducement to enter the service which these proceedings took away. That inducement was the sum of three hundred dollars placed in the opposite scale against being excused from the service. Congress judged, and perhaps rightly, that this inducement, combined with their patriotism, would induce as many men as were needed to enter the army. The state legislation which authorized money to be raised to furnish substitutes actually provided the men called for. That which directed it to be paid to the drafted man who should go or furnish a substitute at his election, orto be paid for his commutation, held the same inducement before him. In such case, if he entered the army, he received three hundred dollars, precisely the sum which ho saved himself from, paying by the act of congress, had not the state interfered. It no doubt, was not so stringent in compelling men to enter the service, as being forced to pay that sum, because some might not be able to raise it. From this iron compulsion, which in many cases would be hard and oppressive, the'great mass of' legislation as to bounties in this and other states, was intended to relieve the citizen, but in no case, in this state, besides this and perhaps one other township, was the provision made to pay the. money only for such persons as should refuse to serve or provide a substitute.

By the action of this town meeting, the inducement held out by congress, and carefully retained in other townships, which was, that three hundred dollars would be saved or received by entering the service, was entirely taken away. The operation of this was naturally and necessarily to prevent those from serving the government who would have done so, had the inducement of the pay been held out to them. The whole policy of the act of congress to tempt men, by money, to enter the service when drafted, was defeated by this peculiar appropriation.- It is not necessary that we should believe that this was the object of the town meeting; if their proceedings had that effect, it vitiates the assessment of a tax raised for such purpose. And while it may be difficult to believe that these resolutions so well and carefully contrived to prevent any inhabitant of Delaware from answering the call of the president, were not- intended by the draftsman for' that purpose, it is easy to conceive that the great mass of citizens who voted for them, may have done so without such intent, or knowledge that such would be -their effect.

It is no answer to this that these drafted men, if willing to serve, could, by going to other townships which paid bounties, or to the recruiting offices of the government, obtain the same, or a larger bounty by enlisting.

Many good citizens when called on to serve their country when chosen by lot as the quota of their own township, would not have shrunk from the performance of their duty by going, in company with their neighbors, if they could have had the same pay as others received, would not go from their homes to enlist as hired substitutes for other townships among strangers, perhaps of different habits and condition in life, and who might be mere mercenaries, attracted by the large bounties so lavishly offered in many quarters. The inducements offered by the act of congress, should have been placed before the drafted men, at the time when they were compelled to decide whether they would obey the call of their country or refuse, the time when all the other motives to which this was an aid, were acting on their minds. They should, too, have been allowed to receive this bounty without the bitter rebuke from their fellow townsmen, that if they went to that war they should not receive it from them. And for one who should offer to a juror or a witness, a sum equal to his fine, if he would absent himself from court, it would be no defence or excuse that an offer made by others to pay a much larger sum if, he attended, would counteract his crime.

As this township took away entirely from the drafted man the pecuniary inducement to enter the service wisely and deliberately provided by congress, which was not done by the legislation that gave the money to the drafted man if he served, the tax assessed for that purpose is illegal, and must be set aside.

The second reason urged and relied oil for reversal is, that the assessor did not make the assessment in the manner required by law.

As the conclusion arrived at upon the other point must decide the cause, no opinion is given by the court upon the question of the assessment. But for the reason before stated, the judgment of the Supreme Court must be reversed, and the assessment declared void as against the prosecutors.