Bush v. Bd. of Sup'rs of Orange Cnty.

• Citation: 159 N.Y. 212,53 N.E. 1121
• Parties: BUSH v. BOARD OF SUP'RS OF ORANGE COUNTY et al.
• Decision Date: 06 June 1899
• Court: New York Court of Appeals

159 N.Y. 212

53 N.E. 1121

BUSH

v.BOARD OF SUP'RS OF ORANGE COUNTY et al.

Court of Appeals of New York.

June 6, 1899.

Appeal from supreme court, appellate division, Second department.

Action by Hudson G. Bush against the board of supervisors of the county of Orange and others to restrain the levying of a tax. From a judgment of the appellate division (42 N. Y. Supp. 417) affirming a judgment enjoining the collection of the tax, defendants appeal. Affirmed.

F. R. Gilbert and William Hull, for appellants.

Wm. D. Guthrie and Carl A. de Gersdorff, for respondent.

PER CURIAM.

This was a taxpayer's action to restrain the board of supervisors from proceeding to levy a tax upon one of the towns of Orange county in order to pay the claims of certain persons, or their heirs, who were drafted into the military service of the United States, or had commuted in lieu of such service, under the act of congress of March 3, 1863, entitled ‘An act for enrolling and calling out the national forces, and for other purposes.’ The parties seeking to enforce the claims proceeded regularly under the provisions of chapter 664 of the Laws of 1892. It will be seen that under the provisions of this statute the supervisors are directed to levy the tax in certain cases, and upon due proof that certain conditions specified have been complied with. The courts below have sustained the action, and restrained the supervisors and the authorities of the town from proceeding under the act, on the sole ground that the enactment, in its entire scope and purpose, is in conflict with the constitution, and therefore void. That is the only question necessary to consider upon this appeal. The statute, in substance, empowers and directs the supervisors of the several counties, upon a petition of a majority of the taxpayers, to raise by ordinary taxation the money needed to pay to any drafted man who served personally in the civil war, or paid commutation money, or to the heirs of any such man, the sum of $300, with the interest thereon for a period of about 30 years.

Every government must possess the inherent right or power to call upon its citizens to perform military duty in time of war. The exercise of this power involves the right of self-preservation, and that right in the government imposes upon the citizen a corresponding duty to render such services whenever the emergency arises, and it is demanded of him. The government must necessarily be the judge of the necessity for requiring the performance of this duty. This power was called into action by the act of congress referred to, since it provided for a conscription to recruit the army. The individuals selected in the manner provided by the act were under obligations to serve, but they were permitted to commute such services, or pay in lieu thereof to the government a specified sum of money. The legislation which the courts below have condemned attempted to authorize taxation for the purpose of refunding to the person who paid, or his heirs, the moneys expended, with interest, and to pay to the person who personally served under the call, or to his heirs, a like sum, with interest. The power to impose taxes, general or local, which rests with the legislature, is without much express restriction in the constitution, and yet even this power cannot be said to be absolute. On general principles it has at least one limitation, and that is that the money to be raised must be required for some purpose that in some sense, at least, can be said to be public. The...