State v. Demarest

1. A tax levied and assessed against persons above the age of forty-five years, and, therefore, not liable to be drafted, to procure and pay volunteers to serve, and thus exempt from service those who are liable by law, is constitutional. 2. An assessment for such purpose is not taking private property for* private use, but for public use. 3. Whether the interest of the people of the state would be best promoted by suffering a draft, or levying a tax and paying bounties to .volunteers and substitutes, is a question of which the legislature is the sole judge, and which they have full power and authority under the constilutution to decide. 4. When county authorities have ordered moneys raised and appropriated to the payment of volunteers, such action, if irregular and without authority, may be made valid and effectual by legislative act. 5. To assign errors in matters not on the record, but in the written opinion of the court, alleging various imperfections and defects in the reasoning by which the court reached its conclusion, is wholly unwarranted, and the court upon its own motion will order such assignment stricken out.

Error fo Supreme Court. In the year 1864, Elisha Ruekman, the prosecutor, was assessed upon his real and personal property, in the township of Harrington, and county of Bergen, to the amount of six hundred and thirty-nine dollars and ten cents. In 1865 the assessment was removed into the Supreme Court by certiorari, and sought to be set aside for the following reasons: 1. Because the commissioners of appeal refused to entertain or consider the objections made by the prosecutor against the assessment. 2. Because the said assessment was unequal, unjust, and oppressive. 3. Because the said assessment was arbitrarily made, and without warrant of law. 4. Because the said assessment is unconstitutional. The case came on to be heard in bane, in the Term of June, 1865, and at the November Term ensuing, the court affirmed the assessment in all things. The opinion of the court was pronounced by Mr. Justice Vredenburgli, and not having been before reported, is inserted here, as showing the reasons on which the court below founded their judgment, and forming a necessary part of the case. Vredenburgh, J. This certiorari was brought to set aside the assessment of taxes for state, county, and township purposes, and for school and road taxes, for the township of Harrington, for the year 1864, made on the goods and lands of the prosecutor. That part of the tax assessed to pay bounties for volunteers is the only part complained of. This, as assessed upon the real and personal property of the prosecutor, amounts to the sum of about four hundred and fifteen dollars. The first reason assigned for reversal is, that the commissioners of appeal refused to entertain or consider the objections made by the prosecutor against the assessment. This reason does not appear to be sustained by the proof. The eighth section of the act concerning taxes, (Nix. Dig. 843,)* gives the right to any one thinking himself aggrieved by any assessment to appeal to the commissioners of appeal: and the forty-ninth section of the same act (Nix. Dig. 849,)† provides that the commissioners, after due examination of the facts and consideration of the case, shall give such judgment as shall be agreeable to principles of justice. This reason, as assigned, is not that the commissioners did not decide rightly, but that they refused to entertain or consider the objections made by the prosecutor. The evidence of the prosecutor upon this point is, “I objected to this tax before the commissioners of appeal, that the government called for men, and that neither state nor county could refuse to give men, and levy a tax to buy them elsewhere, and they decided against me in about two or three-minutes, without time for any consideration; I do not mean to be understood as saying they did not deliberate upon it * I mean to say simply, that they came promptly to their decision.” When a judicial tribunal comes promptly to a decision, it does precisely the opposite thing from refusing to entertain or consider .the objections made. Instead of refusing to do so,, it does so immediately. The second reason assigned for reversal is, that the assessment is unequal, unjust, and oppressive. But, in the first place, it is not shown, by any evidence, in what way the-assessment is unequal, unjust, and oppressive. But even if it was,-so is, more or less, every assessment. Besides, these matters are the proper objects of review before the commissioners of appeal; and it appears, by the case, that the prosecutor did appeal to them, and that they lecided against him, and their decision, by the very terms of the act, is final and conclusive. The third reason assigned for reversal is, that the assessment was arbitrarily made without warrant of law. The assessment was made under a resolution of the board of freeholders of the county of Bergen, at their May meeting in 1864, ordering one hundred and twenty-five thousand dollars bounty money raised for county purposes. About twenty-five thousand dollars of this assessment was to pay the interest on the outstanding indebtedness of the county for bounty purposes, and the balance was to pay so much of the principal. The county of Bergen was legally compelled to furnish soldiers to the United States to suppress the late southern rebellion, by a draft, if necessary, for that purpose. The draft could be legally avoided by the required number of men volunteering from that county. The board of chosen freeholders, to avoid the necessity of the draft, offered and paid money to volunteers until they obtained the requisite number. The money thus paid was obtained by borrowing, and it was to pay the interest and part of the principal of such indebtedness, that that order of the board of freeholders, and this assessment under it, were made. This gives rise to two questions — first, was the board of freeholders authorized by law to make this order; second, if it were, was the assessment in pursuance of it? First Was the board authorized by law to make this order ? The authority is claimed for the board under the act of our legislature, entitled an act to authorize the board of chosen freeholders of the county of Bergen to raise money, issue bonds, and for other purposes, passed March 19th, 1864. Pamph. Laws 1864, p. 207. This law, by its terms, does give power to the board of freeholders to order the raising of this one hundred and twenty-five thousand dollars by taxation. The only question which can be raised in regard to it is, was it constitutional ? Does it, in the first place, infringe any provision in the constitution of the United States, or any act of congress passed in pursuance thereof? We have not been pointed to any such infringement. The constitution gives power to congress to raise and support armies, and to provide for calling forth the militia to execute the laws of the Union, and suppress insurrections. Under these constitutional provisions, congress had passed laws to call out certain proportions of the militia of Bergen county. Under these calls, Bergen county had, and was still furnishing the men called for. The general government preferred having them by volunteering, but in case they could not so get them, they must have them by draft. Bergen county preferred to send them as volunteers. The state statute in question was passed, to enable the county authorities to raise bounties by taxation to procure such volunteers, and the particular tax now in question was imposed to pay such bounties. The testimony shows it was not imposed to exempt men from going to the war, but, on the contrary, to induce them to go. In all this, so far from seeing anything antagonistic to the laws and constitution of the United States, I see nothing but what is in sympathy and aid of them all. Nor do I see anything in the state law, and this tax under it, antagonistic to the state constitution. Without expressing any opinion as to whether that clause of the state law providing for the payment of commutation might infringe upon the law of congress, there- is, evidently, no collision between it, and either the state constitution or the law of congress, so far as paying bounties for volunteers is concerned. The state legislature has general powers of legislation, and those who set up that any particular law is unconstitutional must show it clearly. Here the legislature have given power to this municipality to tax to pay bounties for volunteers legally called for by the general government. This is clearly within their powers of ordinary legislation, and all arguments as to this tax being unjust, unequal, arbitrary, and oppressive, are properly addressed to the discretion of the legislature, and upon which its action is final. These considerations are all beyond the scope of judicial inquiry. The assessment must be affirmed. This judgment of the Supreme Court was then removed into this court by writ of error, and the following errors were assigned for its reversal: Afterwards, to wit, at the term aforesaid, before the court aforesaid, at Trenton, comes the plaintiff in error, by Abraham S. Jackson, his attorney, and says — that in the record and proceedings aforesaid, and also in giving the judgment aforesaid, there is manifest error in this, to wit:' 1. That the said Supreme Court determined that the judgment of the commissioners of appeal in cases of taxation, made in this behalf against the plaintiff in error, was final and conclusive; whereas, by law, the same, when based on erroneous principles, is not final and conclusive. 2. And there is also error in this, to wit, that the said Supreme Court adjudged that the said assessment for taxes upon the goods and lands of the plaintiff in error, for the payment of bounties, was not unequal, unjust, or oppressive; whereas the same, having been made upon erroneous principles, is unequal, unjust, and oppressive. 3. And there is also error in this, to wit, that the said Supreme Court held that said assessment was not arbitrarily made, and without the warrant of law; whereas the same was so made. 4. Aud there is also error in this, to wit, that the said Supreme Court decided that the whole of said assessment could he made under the act entitled “ An act to authorize the board of chosen freeholders of the county of Bergen to raise money, issue bonds, and for other purposes,” approved March 10th, 1864, [Pamph. 207); whereas, by an act of like title, approved February 11th, 1863, (Pamph. 33,) the assessment of taxes for the payment of bounties, in an amount of one hundred and fifty thousand dollars, must be made, if at all, according to the provisions of the latter act. 5. Aud there is also error in this, to wit, that the said Supreme Court maintained that it was the province of the legislative department of the si ate government to decide as to what kind of taxes should be levied on the goods and lands of the plaintiff in error, and that such decision could not be impeached; whereas, by law, it is the duty of the judicial department of the state to protect the plaintiff in error against unconstitutional laws. 6. And there is also error in this, to wit, that the said Supreme Court adjudged that it was within the scope of the powers vested iu the legislature of this state to ratify and make valid the acts of said board of chosen freeholders, who had unlawfully incurred debts for the payment of bounties; whereas, by law, said debts, having been by said board incurred for an unlawful purpose, could not be made valid and binding on said board, nor oil the several inhabitants of the county of Bergen. 7. And there is also error in this, to wit, “ That the said Supreme Court maintained that the said assessment of taxes, directed to be made by said board of chosen freeholders, was made for a lawful purpose, to wit, for the paying of money, which had been expended in bounties to volunteers, or to-drafted men of the county of Bergen, or to men therein liable to draft; whereas, by the law of the land, it is not lawful to raise money by a general tax, which is not intended or employed for a general use, but for private benefit.” 8. And there is also error in this, to wit, that the said Supreme Court adjudicated that the county of Bergen was legally compelled to furnish soldiers to the United States to suppress the late southern rebellion; whereas, the said county could not be compelled, by any law of this state or of the United States, to furnish soldiers for the United States army, but only private persons, citizens of the United States, residing in said county, were liable to be enrolled, drafted, and mustered into the service of the United States. 9. And there is also error in this, to wit, that the said Supreme Court held that the congress of the United States had passed laws to call out certain proportions of the militia of Bergen county into the military service of the United States; whereas, no such laws have ever been passed by said congress. 10. And there is also error in this, to wit, that the said Supreme Court decided that the power for making said assessment of taxes, given to the said board of chosen freeholders, by said two acts of the legislature of this state, did not infringe any provision of the constitution of the United States; whereas, said power is expressly denied the said legislature by the constitution of the United States. 11. And there is also error in this, to wit, that the said Supreme Court adjudged that the said power so granted did not infringe any provision of any act of congress; whereas, the exercise of said power is to relieve, and did relieve, certain private persons, {residents of the county of Bergen, and citizens of the United States, from a particular duty imposed on them by law, and by an act of congress, entitled “ an act for enrolling and calling out of the national forces, and for other purposes,” approved March 3d, 1863, and the supplements and auxiliary acts thereto, the object and purpose of said acts of congress being to enroll, draft, and muster said private persons into the military service of the United States. 12. And there is also error in this, to wit, that the said Supreme Court determined that the legislature of this state had a right to grant power to the board of chosen freeholders of the county of Bergen to levy a tax upon the residents of the county at large to pay bounties to such persons as should volunteer in the military service of the United States, in the stead of certain private persons, residents in said county, citizens of the United States, who owed military service to the United States (which could be discharged only in their private capacity), or to such persons as should go as substitutes for them; whereas, it is not lawful for the legislature to relieve a private citizen from the performance of a duty enjoined by law, and cast the burthen of the same upon the community at large. 13. And there is also error in this, to wit, that the said Supreme Court affirmed the said assessment to be valid and effectual in law; whereas, the same is invalid and of no effect and should be set aside. And the said plaintiff in error prays that the judgment of the Supreme Court, for the errors aforesaid, and for other errors in said record and proceedings being, may be reversed, annulled, and altogether holden for nought; and that he may be restored to all things that he has lost by reason of said judgment, &c. The case was argued by—