Brodhead v. City of Milwaukee , 19 Wis. 624 ( 1865 )

By the Court,

DixoN, C. J.

The argument was able and exhaustive, and left nothing for research or suggestion on my part. I was convinced at the time, and so expressed myself to my associates, that the unconstitutionality of the tax could not be maintained. I thought the act valid in every particu-. lar, and my convictions have since been confirmed by the opinions of the highest courts of two of our sister states upon the direct question. One of those opinions was not then published, and both have but very recently come to hand. I refer to Booth v. Woodbury, in the supreme court of Connecticut, Law Rep., June, 1865, p. 232 ; and Speer v. Blairsville, in the supreme court of Pennsylvania, Am. Law Reg., Sept. 1865, p. 661 [50 Pa. St., 150.] I shall avail myself to a considerable extent of those opinions as expressive of my own views of the law.

Counsel on both sides accept as correct the, principles laid down in the great leading case of Sharpless v. The Mayor &c., 21 Pa. St., 147, 168, upon the subject of taxation. The same principles have frequently been affirmed by this court. The legislature cannot create a public debt, or levy a tax, or authorize a municipal corporation to do so, in order to raise funds for a mere private purpose. It cannot in the form of a tax take the money of the citizens and give it to an individual, the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation must be public, and such as subserve the common interest and well-being of the community required to contribute. To justify the court in arresting the proceedings and declaring the tax void, the absence of all possible public interest in the purposes for which the funds are raised must be clear and palpable — so clear and palpable as to be perceptible by every mind at the first blush. In addition to these, I understand that it is not denied that claims founded in equity and justice in the largest sense of those terms, or in gratitude or charity, will support a tax. Such is the language of the authorities.

I think the consideration of gratitude alone to the soldier for his services, be he volunteer, substitute or drafted man, will sustain a tax for bounty money to be paid to him or his family. Certainly no stronger consideration of gratitude can possibly exist than that which arises from the hardships, privations and dangers which attend the citizen in the military service of his country; and all nations have ever so regarded it. Who will say that the legislature may not, in consideration of such services, either directly or indirectly, or through the agency of the municipality or district to which he is credited, give to the soldier or his family a suitable bounty after his enlistment, or even after his term of service has expired ? I certainly cannot. It is a matter which intimately concerns the public welfare ; and that nation will live longest in fact, as well as in history, and be most prosperous, whose people are most sure and prompt in the reasonable and proper acknowledgment of such obligations.

But the act provides for paying the same bounties “ to persons who shall procure substitutes for themselves before being drafted, and have them credited to such town, city or village, upon its quota,” under the then pending call of the president or any call which should thereafter be made ; and it is said that clearly no debt of gratitude is due to such persons. To my mind it is not quite so clear. Suppose that during the late rebellion, citizens enough in the loyal states, liable to military service, had furnished substitutes so as promptly to have answered the calls of the president and kept the armies of the Union replenished with new soldiers, and so as to have avoided the evils and expenses of the drafts : is it clear that all the communities thus relieved would have been under no obligation of gratitude to such citizens ? Suppose still further, that under the system of apportionment adopted by Congress, a sufficient number of such citizens had been found in any town, city or election precinct to have filled its quota by substitutes : would there have been no cause for thankfulness on the part of the inhabitants of such town, city or precinct for their having done so ? I must confess that I think there would. War, though often unavoidable, is always a most deplorable public misfortune; and among its calamities, not the least, I may say the greatest, is the forcible separation of husbands, fathers, sons and brothers from their homes, kindred and friends, to be made bloody sacrifices upon the field of battle, or to die of loathsome diseases contracted in camps or upon campaigns ; and those who avert the evil of such forcible separation, I care not from what motive of private or individual interest, so that the duty of furnishing men for the army is performed, cannot but be regarded as in some sense public benefactors.

But it is not for those who have furnished substitutes in the past that the act provides bounties, but for those who shall do so under a pending call' before being drafted, and have them credited to the town, city or village, so as to avoid or help to avoid an approaching draft. In such case the power to tax may not rest upon the ground of gratitude. It can be sustained upon consideration of the benefit accruing to the town, city or village from the credit, which is direct and palpable. The procuring of substitutes was lawful and proper in itself. The act of Congress authorizes it, and the credit to the town, • city or village. Substitutes must be persons not liable to the draft, so as not to affect the interests of those who were, otherwise than by directly relieving them from the burden of it. The provision for substitutes was a necessity. Other obligations exist as strong, sometimes almost stronger than that of carrying arms in the public defense; and they could not be ignored. Some were so situated that personal service seemed impossible. Others might not go without greater loss to the community at home than gain to the public at large. The procuring of substitutes was, therefore, not only proper, but in many cases commendable. Persons procuring them performed their whole duty under the law. They furnished soldiers for the field, and relieved the communities in which they resided, the same as if they had themselves enlisted.' So far as the public interest is concerned in being relieved from the draft, I can see no distinction between paying bounties to them and to those who volunteer. Both contribute in precisely the same degree to such relief. The error of counsel, I think, consists in looking exclusively to the motives of private advantage by which the persons were governed. That such motives existed and were most frequently the predominant cause of their procuring substitutes, will not be denied. But there is no public good without at the same time some private gain, and in the language of Chief Justice Black, it is enough that we can see any possible public interest in the act, or public benefit to be derived from it. All beyond that is a question of expediency for the legislature, not of law, much less of constitutional law, to be determined by the courts.

Upon the general question, whether the payment of boun' ties to volunteers to fill quotas and avoid drafts is a public purpose so as to authorize state or municipal taxation, I quote from the opinion of the Pennsylvania court. “ The power to create a public debt and liquidate it by taxation is too clear for dispute. The question is, therefore, narrowed to' a single point: is the purpose in this instance a public one — does it concern the common welfare and interest of the municipality ? Let us see. Civil war is raging, and Congress provided, in the second section of the act of the 24th of February, 1864, that the quota of troops of each ward of a city, town, township, precinct &c., should be as nearly as possible in proportion to the number of men resident therein liable to render military service. Section 3 provides that all volunteers who may en list after a draft shall be ordered, shall be deducted from the number ordered to be drafted in such ward, town &c. Yolun-teers are therefore by law to be accepted in relief of the municipality from a compulsory service by lot or chance. Does this relief involve the public welfare or interest? The answer rises spontaneously from the breast of every one in a community liable to the military burden. It is given, not by the voice of him alone who owes the service, but swells into a chorus from his whole family, relatives, and friends. Military service is the highest duty and burthen the citizen is called to obey or to bear. It involves life, limb, and health, and is therefore a greater ‘ burthen’ than the taxation of property. The loss or injury is not confined to the individual himself, but extends to all the relations he sustains. It embraces those bound to him in the ties of consanguinity, friendship and interest — to the community which must furnish support for his family, if he cannot; and which loses in him a member whose labor, industry and property contribute to its wealth and its resources ; who assists to bear its burdens, and whose knowledge, skill and public spirit contribute to the general good. Clearly the loss of that part of the population upon whom the greatest number depend, and who contribute most to the public welfare by their industry, skill, property, and good conduct, is a common loss, and therefore a general injury. These are alike subject to the draft. The blind and relentless lot respects no age, condition or rank in life. It is therefore clearly the interest of the community that those should serve who are willing, whose loss will sever the least ties, and produce the least injury.”

“ The bounty is not a private transaction in which the individual alone is benefited. It benefits the public by inducing and enabling those to go who feel they can best be spared. It is not voluntary in those who pay it. The community is subject to the draft, and it is paid to relieve it from the burthen of war. It is not a mere gift or reward, but a consideration for service. It is therefore not a confiscation of one man’s property for another’s use, but is a contribution from the public treasury for a general good. In short, it is simply taxation to relieve the municipality from the stern demands of war, and avert a public injury, in the loss of those who contribute most to the public welfare. This is the design of the law; and it is no answer to say that bad men have abused it. * * * * It is not the individual payment that tests the public character of the appropriation. Individuals are always the recipients of the public funds. It is paid to salaries, to pensions, to bounties for the scalps of panthers, wolves, foxes, crows and blackbirds, to the poor, to the education of the young, as rewards for the apprehension of horse thieves and felons, to the families of soldiers in the service, to aid hospitals, colleges, agricultural societies, and to other useful objects. In all cases the recipient is directly benefited, while the public interest in many is not half so imperious or acute as the relief of a community from an impending draft. * * The pursuit of happiness is our acknowledged fundamental right., and that, therefore, which makes a whole community unhappy is certainly a social evil, to be avoided if it can be. The support of the poor affords one of the best illustrations of what is a municipal or public appropriation of money. The pauper is the party directly and solely ' benefited, while his pauperism is a public evil, and often is the result of crime. The pauper has not the merit of the volunteer, while the community is injured, not benefited,by his support. There is nothing but a naked public duty performed in his relief. The same may be said of all expenditures of public money in the punishment of crime. * * * If then it be within the scope of a municipal purpose to grant pensions, pay bounties, give rewards for the destruction of noxious animals, and the arrest of felons, employ watchmen, support paupers, build almshouses, bridges and markets, aid charitable institutions, make roads, and grade and pave streets, at public expense, how much more is it a public affair, which has for its object to prevent the forcible and blind extradition of a valuable part of the population into a service dangerous to the lives and limbs of those who go, and destructive of the welfare and happiness of those who remain. Nor can the dilemma be avoided. It is imposed by the exigency of war and the duty of public defense. * * * * In the ease before us the object is not to obtain money for the volunteer, but for the community which is to be relieved by the volunteer. * * * The consideration given on his side is most valuable — he enlists into a dangerous service, running the risk of life and limb ; and takes upon himself the burthen resting upon the whole community subject to the lot. The public welfare, as I have already shown, is most intimately involved in the draft, which enters directly within the field of municipal affairs. The die is not cast, and the lot is yet uncertain. All are liable within the ages of the greatest capability for usefulness. The chosen may be the most valuable, useful, and needed members of society, whose extradition may produce the greatest injury and the most distress. The public interest is more involved in the ills of a draft, than in many evils recognized as public in tbeir nature. An obstruction to a highway and a disorderly house, perhaps hurtful to but few, are punished as public nuisances. Even sounds and smells claim public attention. An impending draft is an evil certainly more to be dreaded than the odor of a pig stye, or the clatter of horns. Can it be that citizens may be torn from the community and social ties ruptured, to drag them into a dangerous public service, and yet community cannot interfere to save them, on the ground that it is only a private affair ? Their property may be protected from the storage of powder, by municipal regulations, but their bodies cannot be saved from being made food for powder in the public defense. It is possible to hold the disc of the dollar so close to our eyes, that it excludes from sight every object of public interest and blinds us to every sentiment of humanity.”

This is fully to the purpose, and enough upon the question of municipal bounties to volunteers.

Another objection is, that the duty of service is personal, confined to the class named in the conscription, and that the residue of the people required to pay the tax have no interest in the question. This is as false in fact as it is in theory. We all remember the gloom and anxiety that pervaded all classes of community before the late drafts, and tbe rejoicing and happiness when the “ quota was filled” and the draft avoided — not the happiness and rejoicing of those alone who were liable to the draft, but of thousands upon thousands of others connected with or dependent upon them in the manifold relations of life. It is idle to say that none but those within the ages of conscription were interested. And as to the theory that no others owe service, I answer, in the language of the court in Booth v. Woodbury, in which town bounties to drafted men were sustained,that every citizen is bound to take up arms, when necessary, in the defense of his government, not as a matter of strict law, but as an incident of citizenship. The selection of a class only, of a certain age, of whom that service is to be immediately demanded in a particular case, although, wise, is arbitrary, not based on any peculiar or special obligation resting upon the class, Or their ability alone to render the service, or to render it with less pecuniary or social sacrifice, but on the wants of the government, and the supposed fitness of the class to subserve the purposes of the government with more efficiency than others. If all owe the service, and it is for the common good, and there is the usual provision that it may be rendered by substitute or commutation, it is not easy to see why men above forty-five years of age, if able-bodied may not be called upon, as well as those of less age. If not as able to endure the hardships of the field, they may answer equally well for garrison duty or as details ; and presumptively they are better able to procure substitutes, for they have more generally accumulated property, or received it by inheritance. If substitution is made an element of conscription, as it was by the law in question, the ability to procure a substitute may well be an element without regard to age ; and therefore, when all above a certain age are exempt, they are favored, and it is clearly equitable and just that they equalize the burden by bounties to those who volunteer or are drafted and serve, or by making provision for the support of their families. On this equity, as well as upon the other grounds named, rests the power of the legislature to provide by taxation for state and local bounties; and under the system of apportionments prescribed by Congress, by which each municipality, election district or county is assigned its proportion of men, it becomes preeminently local taxation for local purposes, according to the rule contended for by counsel.

But it is said that the act does not apply to cities, — that it is applicable only to towns and villages. Cities are expressly named over and over in almost every section, and the intention of the legislature to include them is so obvious that he who runs may read and understand. I shall spend no time upon this objection.

It is also said that the act is in conflict with the charter of the city of Milwaukee, and impracticable in its operation. I do not think that it is in conflict with the charter, or repeals or modifies it in any particular. The charter remains the same as before, and all the powers which then existed or could have been exercised under it still exist and may now be exercised. The act was a delegation of new and specific powers to the qualified electors of the city, with a specific mode of exercising those powers, and in no wise affects or abrogates the general provisions of the charter, unless it be in some particular or particulars contravening the special provisions of the act, of which none were pointed out. No one can doubt the power of the legislature to pass special acts for special purposes without infringing upon the operation of other general laws, or to except a particular class of cases from the provisions of a previously existing general law, without repealing such law. Smith v. Hoyt, 14 Wis., 252.

As to the act being inconvenient, injurious, or impracticable in its operation, on account of the large number of voters who might be assembled at one place on the day of election, I' answer, that that is an objection proper to be addressed to the legislature, but not to this court. This court can, and, when properly presented, must deal with and determine questions of the power of the legislature under the constitution ; but it cannot lay its hand upon or interdict a statute, or arrest its operation, because such statute is either unwise, unjust or oppressive, there being no question of legislative power involved, The court is not the guardian of the legislative will, and cannot protect the people from the inconveniences or hardships of merely unwise or improvident enactments. The law may be very bad in the respect complained of, but as it was for the legislature to prescribe the time and manner of calling and holding the elections, so it is for the legislature to apply the remedy. And if the room at which the election is called is small, inconvenient, or inaccessible to large numbers, the elec* tors, or a majority of those present, may adjourn to some other place where these objections do not exist, making public announcement thereof and causing proper notice to be given to voters who shall come afterwards. This power, I have no doubt, is always possessed by the electors assembled on such occasions, unless expressly taken away by statute. The electors have this right as a power incident to all corporations at common law, irrespective of statutory grant. Chamberlain v. Dover, 1 Shepley, 472 ; People v. Martin, 5 N. Y., 27; Goodell v. Baker, 8 Cow., 289.

It has likewise been suggested that the legislature is prohibited by sec 8, Art. SI of the constitution, from providing for an election at one common poll, such not being the usual course in cities, but that the votes must be taken in wards or other lesser subdivisions. The object of this section is obvious. It was to impose upon the legislature the duty of restricting the power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and taxation on the part of cities and villages, and not to give the legislature power to organize cities and villages, nor to prescribe the form of such organizations. The power to organize cities and villages would have existed without such provision, and the section is entirely silent upon the form or mode of organization. It is a fundamental rule in the con struction of written constitutions, that we are to be governed by the purpose of the framers, and I do not see how any one can look upon the section and say from the language employed, that it was the intention of the framers to bind the legislature to any ancient or then existing form of organization. It is not often that constitutional conventions are engaged upon such trivial and unimportant matters of form, and the records of our convention do not show that any such question was up or discussed. I can see no object in such prohibition, and have always supposed, and still do suppose, that it was left in the largest sense to the discretion of the legislature to determine when and bow cities should be organized, who should be their officers, what their names of office, their powers, and how elected, &c., &c. I have always supposed, and still do, that the legislature has full power to change or modify the provisions of any of our city charters as it may deem wise or expedient, or to repeal them. Should the legislature to-morrow, or at its next session, repeal the charter of the city of Milwaukee, and throw the territory into the form of a town organization, so that all the electors must vote at one poll, would this court have power to arrest the operation of the act or declare it void ? Such an act might be most unwise and imprudent in itself, and most injurious in its effects ; but I hold that this court would have no power over it; and for the same reason I hold that we have no power over the present act.

It may also be suggested that section 26 of Art. IY of the constitution has some influence upon the question. My answer is that the persons there spoken of are those engaged in the service of the state. Our soldiers have been engaged in the service of the United States.

Another objection is, that it is a delegation of legislative power to the people. In reply to this I refer to Oliver's Case, 17 Wis., 681, and the authorities there cited.

Still another objection is, that the whole power of levying troops, organizing armies, fixing compensation, paying bounties, &c., resides in Congress, and that the-states can take no action in the matter. This objection was urged and fully met in the Pennsylvania decision. If Congress has the power and may legislate to the entire exclusion of the states, which is very doubtful so far as state aid to the persons and families of volunteers or drafted men is concerned, still Congress has not done so. The act of February 24th, 1864, was framed with direct reference to such state and municipal aid, and the act of Congress and the act of the state, without .the slightest repugnance or opposition, go hand in hand together for the more ready and perfect accomplishment of one common object. The propriety and legality of sucb assistance are expressly recognized in the third proviso of the seventh section, and the second proviso of the twentieth section, of the act of Congress.

One more objection, and the last in the long catalogue which T shall notice, is that the legislature did not pursue the system of division fixed by Congress. The bounties should have been by wards to volunteers to be credited to the wards respectively, instead of by the city at large, to be credited to each ward. How this diminished the power of the legislature, or could control its action, is not shown. I think it is very difficult to perceive. The argument tends to show an abuse of power, or lack of wisdom on the part of the legislature, rather than a total want of power, which last is the only one that can be addressed to this court to defeat the operation of the act. It is said that the residents of one of the wards had filled or nearly filled its quota at the time the vote was taken, and that it would be unjust to tax them to fill the quotas of the other wards. This is somewhat low and selfish ground, but admit the apparent injustice; still, if the court can see and the legislature could see, within the principles above stated, that they had yet some possible interest in filling the quotas of the other wards, and the legislature saw fit to tax them for that purpose, the tax must stand. In a city like Milwaukee, where all the interests of the people, religious, moral, political, social and economic are so intimately connected and blended throughout, it is not difficult to perceive such interest; and hence I think the objection must fall. It seems to me that the system of congressional subdivisions, adopted for convenience, has really no influence upon the question, and that the legislature might have provided for bounties from the state at large, or, as was done in Pennsylvania and New York, in some instances, from counties, as well as cities and towns.

I think, therefore, that the orders refusing the injunctions should be affirmed.