Gould v. Raymond

Against the former decision of these cases an argument is advanced upon ante-constitutional precedents. The New Hampshire government of 1776 carried on the war against foreign and domestic enemies without a bill of rights, and without any constitutional division or limitation of power. It was a temporary sovereignty, set up "to continue during the present * * * contest with Great Britain." 8 N.H. State Papers 2. And its undefined and boundless authority, hastily assumed and arbitrarily exercised, for the transient purpose of the war, does not prove the bounds of the limited government afterwards instituted with deliberation, in a form designed to be permanent, designed in its limitations to be a radical innovation, and designed by its limitations to change the provisional and preliminary form because the latter was unlimited. The absolute form, and its precedents so far as they were of the same character, or in any respect repugnant to the new and constitutional system, were swept away together. 8 N.H. State Papers 14-17, 420-425; 9 N.H. State Papers 878, 879.

The resolution of the provincial congress formally establishing the provisional government, contained an assertion of natural rights, constitutional in the English sense; and violations of them were alleged as public grievances and causes of the revolt. But in that war, as in others, civil and foreign, many fundamental principles were temporarily superseded by what was regarded as necessity. Construed in accordance with the tyrannical practice of that period, the constitution would be a repeal of its own express reservations of liberty and equality. That practice included arrest and imprisonment at the discretion of a committee of safety, banishment and confiscation without trial, and any other act of despotism that was deemed expedient. Instead of being safe guides in the legal construction of constitutional restrictions, the precedents of that time show to what anomalous courses, in the absence of such restrictions, men can be driven by the stress of a revolution.

All power, civil and military, including the power of delegating all power, was concentrated in the two bodies composing the general court (sometimes called the general assembly), and was used as it would be likely to be by energetic men, engaged in a desperate enterprise, to the success of which everything was pledged. When they used their consolidated power, military civil, executive, judicial, legislative, and indeterminate, when they divided it and delegated a portion of it by a revocable license, and when they delegated the whole of it undivided, they acted for their constituents upon the natural law and supreme right of self-defence. They were elected, not to administer a constitutional government, but to contend for the privilege of constructing such a government in the future, when time should be found for work of that kind. Meanwhile they were to take charge of the public welfare, and maintain order by such temporary measures as might be convenient.

Their methods are fairly exhibited in the proceedings of one day. In the forenoon of July 5, 1776, they choose a committee "to examine into the matter of" the complaint "of the committee of safety of Stratham against Capt. George March, as a person being inimical to the liberties of this country." The committee report that "they are of opinion that said March is inimical to his country, and that he ought to be taken care of." The house vote that Major Bass "be appointed paymaster to the second regiment" "destined for Canada." The council and house pass an act establishing courts of law for the administration of justice, in the place of those established and holden "under the former government." The house send up to the council for concurrence a resolution that the courts be "prohibited from trying any civil actions until the next session of the assembly, and that they proceed as usual to hear and try all capital crimes, misdemeanors, trovers, trespasses, assaults, batteries, robberies, thefts, and other breaches of the peace," and that the fees to be taxed in the courts be according to the last table of fees, until otherwise ordered by the general assembly. The house vote that the constable of Exeter "seize the body of George March and safely keep him till called for by this house, to be examined and tried on suspicion of being inimical to the liberties of this country, and that the clerk make out a warrant accordingly, and send out summons for witnesses by Major Barker." By concurrent votes the council and house appoint a maritime officer, two notaries public, a justice of the common pleas for Rockingham, and a special justice of the same court. In the afternoon "The council and house taking into consideration the accusations laid against Capt. George March of Stratham, as being inimical to the liberties of this country, and a full hearing being had thereon before both houses, and sundry witnesses being sworn and examined: — It appears to this court that the said George March has uttered many words against the liberties and privileges of this country: It is therefore voted and resolved, that the said George March confine himself to the limits of the farm which he now improves in Stratham, on pain of imprisonment; and that he recognize" in the sum of one hundred pounds, with two sureties, for his good behavior, "until further order of this court; and that, in the meantime, he be disarmed by the committee of Stratham." The last act of the day is a vote of the council and house, appointing Meshech Weare and fourteen others "a committee of safety for this colony, to transact all the business of both houses in the recess of the general court;" and making any eight members of the committee "a quorum to do business."

Men invested with absolute power, able to convey the whole of it to any eight members of a committee of safety, and as able to assign it all to one man as to fifteen or eight, found no difficulty in conveying a part of it to judicial courts. And they would have found no difficulty in conveying to towns a power of paying bounties for enlistments, if it had been understood that towns needed any other authority than the law of nature for thus promoting the common cause, the failure of which would expose nearly all the voters to the penalties of treason. Such municipal power, if its source was thought of, and if it was not considered original and inherent, must have been understood to be derived from the general court's authority to delegate, not a mere power of local legislation to towns, but all power to anybody. If the plaintiffs' argument were sound, it would reestablish the unbounded rule that was cast off at the inauguration of free government nearly a hundred years ago. The revolutionary evidence does not show that in voting bounties for enlistments in the continental service, a town was understood to legislate upon the subject of American independence as a local, municipal affair. Towns could vote those bounties, because, against the public enemy, anybody could do anything permitted by the general court or the committee of safety.

When, by Article 90, former laws were continued in force, such parts thereof were excepted as were repugnant to the rights and liberties contained in the constitution. Lest this exception should annul the confiscation act of November 28, 1778, and restore confiscated property, a proviso was added to save the revolutionary law on that subject. "The whole estate, real and personal," of certain tory refugees, except articles of their personal estate deemed necessary for the use and support of their families, having been seized and appropriated to the payment of public expenses, without any pretence of taxation, that proceeding was sustained, in 1784, by a special constitutional proviso. Whether the proviso was necessary or not to justify past action and sustain existing titles, it did not comprehend any other laws than those "already made respecting the persons or estates of absentees." It did not authorize future confiscation by an unequal division of public expense, which, like the revolutionary sequestration, would not be taxation. But if property could now be unequally taken for public use, under a pretence of taxation, it could be taken by a law as unequal as the confiscation act of 1778, without any such saving clause as took that act out of constitutional condemnation. As by that act the titles of John Wentworth and twenty-seven others named in the act were transferred to the state, so now, if taxation can be an unequal division of public expense, a tax law can appropriate to the payment of such expense the whole estate, real and personal, of persons singled out and named in the law. And the construction that employs the revolutionary precedents to divest taxation of its element of apportionment, and put an end to the constitutional equality of tax-payers, finds in the proscription of tories abundant warrant for setting at naught all constitutional security of property, liberty, and life.

And the earlier provincial practice is as inconclusive as that of the Revolution. We had no inviolable rights, no rights constitutional in the American sense, before the second day of June, 1784. The constitution that went into operation on that day terminated the era of unlimited power, and introduced an era of liberty and equality secured by a supreme written law, and an organic division of government into three branches, each invested with limited authority. And while many words and phrases of the constitution are to be taken in the sense in which they were used before 1784, the plain, written reservations of equal rights are not struck out of the document by ante-constitutional precedents of absolutism and inequality. The conflict of such reservations and such precedents is conclusive proof that the latter can be legally followed no more. The non-constitutional system was intentionally abolished, and the system of reserved rights and limited government was intentionally adopted.

The reservations could not be more clearly expressed. If the right of equality is not secured by them, it can never be secured by any written instrument. And equality that can be legally violated is not constitutionally protected. The legal value of the reservations is in their ability, not to suggest or advocate a theory of human rights, but to carry a theory into practical effect, and insure the enjoyment of the rights reserved. The want of a bill of rights was one of the defects complained of by some who protested against the organization of the government of 1776. 8 N.H. State Papers 425. In their address to the people, recommending the adoption of the constitution of 1784, the convention say, — "The bill of rights contains the essential principles of the constitution. It is the foundation on which the whole political fabric is reared, and is consequently a most important part thereof." 9 N.H. State Papers 881. And there is no more legal reason for holding its prohibition of unequal taxation, in the twelfth article, to be ineffective, than for nullifying all its articles, and the whole constitution. This prohibition is not less operative than it would have been, if, like several amendments in the nature of a bill of rights added to the federal constitution, it had been inserted, after the adoption of the original, in fulfilment of assurances without which the original might have been rejected. Story Const., ss. 301-305. 1858-1953; 2 Curtis Hist. Const. 508-597.

Crowell v. Hopkinton, 45 N.H. 9, and cases of that class, in which the question of equal right was not raised by counsel or considered by the court, cannot be regarded as decisive of that question.

The constitutional obligation of sharing public expense equally would not be satisfied by a declaration of a proportional but unenforceable duty, or by an imposition of a nominal fine for the nonperformance of a duty that is not nominal, or by taxation practically and substantially unequal. The right of the tax-payers of a town to contribute no more than their share of the public expense would not be a constitutional right, if the obligation of other towns to contribute their shares could be evaded by verbal ingenuity. Constitutional equality would have no meaning, if the burden of furnishing substitutes for militia-men drafted under the federal act of 1863 could be put upon some towns, and not upon all. Whether it could be put upon all, there is now no occasion to consider.

By the constitution, legislative power is vested, not in the towns, but in the senate and house of representatives. And without a well established ground of exception, the senate and house are as incapable of delegating their legislative power, as the governor and council are of delegating the power of pardon, or the court of delegating the power of deciding the constitutional question raised in these cases. All power is derived from the people, and all magistrates and officers of government are their agents, and at all times accountable to them. Bill of Rights, Art. 8. And these agents have not a general authority to avoid their official responsibility by relegating their duties to their assignees. If the legislative seats were filled with substitutes, it would not be claimed that a bill passed by them was a law. The vote of a body of substitutes, assembled in the state-house or elsewhere, is not legislation, unless authorized by a legal construction of the constitution. Government by an irresponsible master would be no more illegal than government by sub-agents not selected by the people or by their authority. Neither would be government by the people. The power of the legislature to delegate legislative power to towns in local affairs is exceptional. Cooley Const. Lim. 35, 118, 189; Cooley Taxation 51; State v. Noyes, 30 N.H. 279, 292,293. And an unauthorized extension of the exception to non-local affairs would be abdication and usurpation. Municipal government in non-municipal affairs is not self-government.

There is no express grant of the power of delegation in local affairs, understood, as trial by jury and other technical terms were understood in 1784, in a sense shown by prior practice, or American or English history. The grant, by the people to the senate and house, of the power of delegating a power of local legislation, is implied from the principle of local self-government. But this principle does not authorize an unequal division, among New Hampshire tax-payers, of a non-local expense of raising a New Hampshire regiment for Union service in Virginia or Florida, nor impair the spirit and efficiency of the regiment by the injustice of paying some of its members nothing out of the treasuries of their towns, while others are paid considerable sums by other towns. On such subjects, we may find, in the Revolution, inequitable methods and military consequences that serve for warning, though not for constitutional example.

After July 3, 1875, when the act of 1874 was repealed, the power in controversy was not delegated to towns. And reimbursement having been voted by some towns before the repeal, the result is as if the repealed act had named those towns, and put upon them a burden not put upon others. It was an act of unequal taxation. It provided that to those who had paid money for substitutes, towns might fully reimburse such different sums as they had paid "more than they have received," without uniformity or limit of amount, and might reimburse nothing. The operation of the act was not equalized by earlier acts empowering towns to pay limited bounties to volunteers and conscripts who served in person. Some performed their federal duty by paying for substitutes; others, by personal service. And an exercised municipal power of paying the former all their performance of their duty cost them, and paying the latter nothing, or paying the former more than the latter, — and a power of paying the former, exercised in some towns and not in others, — would not be a substantial or approximate equalization.

If the law had given every conscript a right of action against his town for a uniform sum, on a presumption (well or ill founded) that the amount of taxable property in each town is proportioned approximately, substantially, and with sufficient accuracy, to the number of militia residents; or if, to avoid the question of the constitutional justice of that presumption, or for any other reason, the law had given every conscript such a right of action against the state, — there would have been, among conscripts, and among towns, an equality not contemplated by the act of 1874. The effect of that act, if it were valid, would be in some towns to pay, and in other towns not to pay, men who helped to fill the quotas by sending substitutes, and not to pay men who did as much to fill the same quotas by going themselves.

The federal duty of each conscript could be performed by himself in person, or by a substitute. They whose wealth enabled them to perform the duty by substitutes were no more entitled than others to have it performed by substitutes furnished by the tax-papers. The plaintiffs and others having been called out by the draft to perform their federal duty, they who by reason of poverty were able to perform their duty only by personal service were required to perform it in that way. But the defendants' votes were, in effect, that the plaintiffs, who were able to perform their duty in both ways, should not be required to perform it in either way. The claim of the plaintiffs to be practically exempted from the draft by being reimbursed the cost of their substitutes, while other conscripts, unable to incur such cost, are not exempted, presents one phase of the doctrine of unequal rights in a clear light.

It was not shown in Bowles v. Landaff, and it has not been shown in these cases, that there is any constitutional ground for a law in some towns leaving upon able-bodied men their share of the federal burden, and in other towns transferring from the able-bodied their share of the same burden to the tax-payers; paying some all the expense of performing their duty by substitute, and paying less or nothing to others who performed their duty themselves; authorizing towns, by reimbursing those who had been able to hire substitutes, practically to furnish substitutes for the rich, but not for the poor.

These cases do not bring in question a legislative power of requiring each town, as a part of the state, to raise their quota of men for the military or civil service of the state or the Union, as they are required to raise their quota of the state tax, and as they were required, by the act of June 27, 1780, to furnish their quota of beef cattle for the Continental army; or a power of ratifying unauthorized municipal action in local affairs; or a power of assuming or otherwise making an equal distribution of a non-local burden assumed by a town or by an individual.

The act of 1874 was such a provision for an unequal division of a non-local expense as would be made by an act authorizing towns to raise so much of the state tax as they pleased. The power of requiring the tax-payers of every town to pay their share of that tax, includes the power of authorizing them to pay it; but does not include a power of requiring one town to pay their share, and not requiring others to pay theirs, or authorizing one to pay their share, and authorizing others not to pay theirs. Their compulsory payment of their shares is not evidence of a municipal legislative right to withhold payment. The difference between a law that requires them all to perform a common and justly apportioned duty, and a law that submits to each the question whether they will perform their part or not, is the difference between equality and inequality. The principle of local self-government allows, between towns, much inequality of taxation for local purposes, but not for purposes not local. It permits towns to decide, within certain limits, how heavy their local burdens shall be, but not to decide whether they will bear their shares of the non-local burdens of the state.

If the federal service of the New Hampshire militia in the late war can be assumed as a public obligation of tax-payers, it can be assumed only as a common debt of all the tax-payers of the state. It is not a local debt, to be incurred at the option of municipal bodies exercising a power of local legislation. If it could be and were assumed as a public expense, and a common burden of all the tax-payers of the state, it could not be divided by local legislation compelling some of them to perform their duty, and releasing others without performance. The obligation of every member of the community to contribute his share of the public expense, is a part of the foundation which neither branch of the government is authorized to remove.

Former order affirmed.

FOSTER, BINGHAM, ALLEN, SMITH, and CLARK, JJ., concurred; STANLEY, J., concurred in the result.