Hilbish v. Catherman , 1870 Pa. LEXIS 333 ( 1870 )

Tbe opinion of tbe court was delivered,

by Agnew, J.

— This case differs from any bounty case yet decided, and requires its facts to be clearly stated, in order to perceive tbeir true bearing and the proper principles to be applied. They are these. In March 1865, a draft was impending under tbe last call of tbe President of tbe United States for troops. Seventeen was the' number apportioned to Lewis township, Union county, under tbe Acts of Congress, which recognised the municipal divisions of tbe state for draft purposes, and enabled the draft to be avoided by the enlistment of volunteers. Tbe school directors of the township were willing to levy a tax, and to pay bounties to volunteers to enable tbe township to escape tbe draft, but tbe laws then in force limited tbe sum to be paid to each volunteer to $400; and it was found they could not be bad for less than $550. Public meetings were held, at which there was a general turnout of tbe citizens, and a quorum of tbe school board was present. It was arranged that tbe school directors should levy a tax to tbe extent of $400 for each volunteer, and that a subscription should be raised to pay the excess. Seventy-six subscribers pledged themselves in writing “ to raise bounty for volunteers for said township.” There was no agreement or understanding — not even a general expectation, that a law should be- procured for repayment of these subscriptions ; but the school directors levied a tax and paid $400 to each volunteer, and the subscribers paid the excess. An Act of Assembly was passed on the 14th of February 1868, Pamph. L. 145, reciting these facts substantially, and stating that it would be fair and right that the persons who contributed the sum required to pay the excess, should be refunded by a tax on all the taxables of the township, in order to equalize the bounties among all alike. The act then gave authority to the school directors of Lewis township to levy and collect a tax for the purpose, and they are now proceeding to do so. The plaintiff’s bill seeks to restrain them on the ground that the act referred to is unconstitutional.

In order to determine the case the bearing of the facts stated must be noticed.

1. The money was subscribed for a public, useful and indeed imperative purpose, recognised as such by this court in repeated decisions.

2. It was done with the approbation and general desire of the citizens, expressed at public meetings.

3. It was done in aid of the township, and concurrently with the action of its constituted authorities, acting up to the limit of the powers conferred by law. The simple proposition therefore is, whether the legislature is not competent to tax the township to refund the money advanced for its benefit, in aid of its citizens, and expended with their approbation and that of their public officers. We cannot declare this act unconstitutional unless we can say, in the language of Judge Tilghman, that “its violation of the constitution is so manifest as to leave no reasonable doubt.:” Com. v. Smith, 4 Binn. 123; or, in the language of many federal and state judges, that it violates the constitution so clearly, palpably, plainly, as to leave no doubt or hesitation in our minds: Sharpless v. Philada., 9 Harris 164-; or, unless we can deny that a tax law must be considered valid, unless it be for a purpose in which the community has .palpably no interest: Id. 168. How can we say this, unless we hold that the many hundred laws on our statute book, never heretofore questioned, are void, granting pensions and gratuities for past services, swords, medals, and mementoes for illustrious public actions, rewards for useful arts, donations to fire companies, agricultural societies, colleges and schools, imposing taxes to pay for property destroyed by mobs, and many other matters which will occur to every one.

What are taxes but the revenue collected from the people for objects in wbicb they are interested — the contributions of the people for things useful and conducive to their welfare ? This being the purpose of taxation, there can be no difference between a precedent authority for payment to such an object and a subsequent compensation for the same thing. The case before us is a fit illustration. Here was a general law conceded to be valid to the extent of the $400 of the $550 needed to pay the volunteer. But that less sum could not procure him. Had the general law extended the limit to $550 the whole sum could have been levied by taxation. But as to the public object and interest there is no difference between the $400 authorized to be paid and the $150 not authorized. The $150 was advanced for the same purpose, paid to the same persons and at the same time, and in relief of the same people. The special act simply comes in to compensate for the excess. As it regards the public on what different footing does it stand ? There is no difference between this case, and that of one who builds a bridge or a court-house for a specified sum. He can recover no more; but if in fact he has, by a rise in prices, an act of God, or for any other good cause, been compelled to expend a larger sum, will any one doubt the power to pay the actual cost of the work out of the public treasury ? The public received the benefit, and it is just and right that the public money should pay for it.

But it is said this court has heretofore held that there can be no recovery of bounties without a contract with the public to pay them; and that no taxes can be laid to refund advances for bounties, without they were made on the public credit. This is true, but why is it true ? Because such has been the bounty system of the state. The legislature, by its general system, properly made bounties dependent upon the consent of the public authorities, to prevent unwarranted burthens being laid upon the people. They therefore required a precedent authority. But in this act they'havejchosen to provide compensation for a precedent thing. We have not decided in any case that an advance of money, made for the actual benefit of the public, cannot be compensated, though made at the time without legal authority, or an expectation of its being repaid. It is not the hope or expectation of repayment, which constitutes the ground of authority to refund; but the public benefit received. That it is which creates the moral obligation —that imperfect but conscientious duty, which constitutes a sufficient consideration, either for a public or a private agreement to pay for the benefit conferred. In principle Weister v. Hade, 2 P. F. Smith 474, decides this case. The only difference is that there the subscriptions were made upon the common understanding among the people and their authorities that a law would be procured to refund the money subscribed. But it is manifest that understanding could create no public liability to refund — it only intensified the moral duty, but it was the public use of the money only, which warranted the passage of the law to refund it. We made that understanding an element because we found it in the case; and for the same reason influencing us in all our decisions upon the bounty laws, we have adhered closely to the facts in each case. The whole system is exceptional, temporary and peculiar, and we have constantly endeavored to keep every case within its strictest limits, taking no step in advance, and indicating no liability beyond that which the precise extent of each case called for. Hence expressions may be found in some opinions, more restrictive than the present case will admit of. That is especially so in Tyson v. School Directors of Halifax, 1 P. F. Smith 9. The precise point decided in that case was that the claim of the Bounty Association of Halifax township did not fall within the true meaning and sense of the special Act of August 25th 1864. Some of the expressions in the opinion of our Brother Thompson would indicate a belief inconsistent, probably, with the decision now pronounced. But it is just to say that he dissented from the judgment of the court in Spear v. The School Directors of Blairsville, 14 Wright 150; and whenever the naked question of the power to pay bounties has arisen, he has not agreed with the majority. Could we look upon taxation to pay bounties to volunteers to relieve the township from a draft as the application of public moneys to private ends, we should agree that the principles decided in Norman v. Heist, 5 W. & S. 171, and cases of like character, would forbid the application of the public revenue to the payments made in this case. The simple fact in Norman v. Heist was that an Act of Assembly ordered the property vested by law in one person to be transferred to another. It cannot be doubted that the legislature cannot take the property of one man and give it to another; it cannot tax the public to give the revenue to a wholly private object; and it cannot tax a few individuals to perform a general public work. In Hammett v. City of Philadelphia, decided May 1869, and Durach et al. v. Borough of Johns-town, 12 P. F. Smith 491, we have had occasion recently to examine with much care the foundation of the power to tax, and we cannot see that the Act of Assembly in the present case transgresses the limits of legislative power.

The decree of the court below is therefore affirmed, with costs.

Thompson, C. J., dissented.