Weister v. Hade

• Decision Date: 25 June 1866
• Citation: 52 Pa. 474
• Parties: Weister <I>et al. versus</I> Hade <I>et al.,</I> School Directors.
• Court: Pennsylvania Supreme Court

Page 474

52 Pa. 474

Weister et al. versus Hade et al., School Directors.

Supreme Court of Pennsylvania.

June 25, 1866.

THIS was an appeal from the decree of the Court of Common Pleas of Franklin county. In Equity.

D. W. Rowe, J. McD. Sharpe and F. M. Kimmell, for appellants, cited Speer v. Blairsville, 14 Wright 150; Phila. Asso. v. Wood, 3 Id. 73; Sharpless v. Philadelphia, 9 Harris 147.

W. S. Stenger and McClure & Stewart, for appellees, cited Speer v. Blairsville and Sharpless v. Philadelphia, supra.

The opinion of the court was delivered, June 25th 1866, by AGNEW, J.

We decided in Speer v. School Directors of Blairsville, last year, that the legislature has power to authorize a municipality to borrow money and levy taxes to pay bounties to volunteers, in relief of the district from an impending draft. This has been reaffirmed at the present term in the case of Ahl v. Gleim & Shelby. We then held that the power to create a public debt and liquidate by taxation is too clear for dispute, where the purpose is a public one concerning the common welfare and interest of the municipality: That Congress opened the door to volunteers in relief of the community from the draft, and invited its co-operation in procuring volunteers: That military service is a burthen and stern demand of war, which the citizens are called on to perform, and involves not only those in the ranks, but all who remain at home, who must assist in other forms to bear the burthen, and are interested in the selection of those who go: That the bounty paid is therefore not a private transaction, but concerns the public by inducing volunteers to take upon themselves the public duty and the risks of service, and thereby relieving the community from the apprehensions and the ills of an indiscriminate draft by lot. Its benefit to the community far transcends in importance those of many other recognised public objects. We further held that money raised by loans and taxation for such a public municipal purpose is not money obtained for or a loan of or credit to any corporation association or party within the constitutional amendment of 1857.

These positions are settled, and we do not propose to renew their discussion. But the new aspects now presented seem to require a re-examination of the extent of the legislative authority. After bill and answer, the case was referred to an examiner, whose report presents the facts in a lucid and well-digested view. They may be succinctly stated. Antrim township, Franklin county, after the passage of the general Bounty Act of March 25th 1864, became liable to a draft for a military quota of sixty one men. In pursuance of that law the school directors raised money to pay a bounty to volunteers of $300 each, to relieve the township from the draft. But it was found to be impossible to raise men at this sum, the bounty having risen to $500. The citizens held meetings to raise money to pay the extra $200, but failing to raise it by donations, succeeded in obtaining it by sub scriptions founded on the assurance that a law could be procured authorizing them to be refunded by taxation.

A special act for Franklin county was accordingly passed on the 8th March 1865, Pamph. L. 288, and the school directors of Antrim township proceeded to levy a tax to repay the extra $200 to the subscribers. When they had collected and paid about half of the subscribed amount, this bill was filed to enjoin against further proceedings. Two questions are raised, one upon the interpretation, and the other on the constitutionality of the law. It is entitled "An Act authorizing the collection of a tax for the payment of bounties to volunteers in excess of the sum allowed by law in the county of Franklin." It authorizes the levy and collection of sufficient tax to pay the sum of $500 to volunteers enlisted prior to the 19th of December 1864, and proceeds thus: "Whenever that sum was paid, all loans made in good faith for the payment of the excess of $200 to each recruit are hereby legalized, and the same shall be paid out of the tax hereby authorized to be collected."

It is argued that the term loans in this act means debts contracted by persons authorized to borrow the money and make the township responsible, while the subscriptions were but gifts, with a mere expectation of return when legislative authority should be procured.

The examiner and the court below thought this was not the true meaning of the law, and we concur with them. It is patent on the face of the act that the legislature knew they were not loans in any proper or legal sense. Under the general Act of 1864, loans and taxes could not be raised to pay bounties exceeding $300. When the legislature legalized loans made in good faith for the payment of the excess, they had reference to claims only upon the conscience and moral sense of the community relieved thereby. The examiner finds the fact that those loans were subscribed and paid upon the solicitation of authorized committees of the citizens, with a distinct understanding that a law should be procured, if possible, authorizing repayment. We must conclude that the legislature intended to legalize these claims, and this brings us to the question of their constitutional power.

What we said in Speer v. School Directors was thought sufficient to prove the legislative authority in that instance; but as this case is supposed to draw more deeply upon the fountain of power, we shall add something more, and cite further decisions.

The want of unanimity in the court before seems to require that we should not only refer to, but recite the language of former decisions, to show that in our views of constitutional power we have followed the same path trodden by our predecessors. The theory of the State Constitution has been settled by repeated decisions so authoritative, we cannot now alter it if we would.

Black, C. J., states the theory thus in Commonwealth v. Hartman, 5 Harris 119: — "It is to be remembered that the rule of interpretation for the State Constitution differs totally from that which is applicable to the Constitution of the United States. The latter must have a strict construction; the former a liberal one. Congress can pass no laws but those which the Constitution authorizes either expressly or by clear implication, while the Assembly has jurisdiction of all subjects on which its legislation is not prohibited. The powers not granted to the Union are withheld, but the state retains every attribute of sovereignty which is not taken away." The same proposition is stated by the late Chief Justice Gibson in the following nervous language: — "But it is a postulate of the State Constitution which distinguishes it from the Federal, that all the power of the people is delegated by it except such parts as are specially reserved:" Kirby v. Shaw, 7 Harris 260. In Sharpless v. Mayor of Phila delphia, 9 Harris 161, Chief Justice Black elaborates this state ment with great force, and sums up his conclusion in these words: — "To me it is as plain that the General Assembly may exercise all the powers which are properly legislative, and which are not taken away by our own or by the Federal Constitution, as it is that the people have all the rights which are expressly reserved." He adds: — "We are urged, however, to go further than this, and to hold that a law, though not prohibited, is void if it violates the spirit of our institutions or impairs any of those rights which it is the object of a free government to protect, and to declare it unconstitutional if it be wrong and unjust. But we cannot do this. The constitution has given us a list of the things which the legislature may not do. If we extend that list, we alter the instrument; we become ourselves the aggressors, and violate both the letter and spirit of the organic law as grossly as the legislature possibly could."

All this has been summed up by the present chief justice in The Commonwealth v. Maxwell, 3 Casey 456, in the following terse statement: — "A law that is unconstitutional is so because it is either an assumption of power not legislative in its nature, or because it is inconsistent with some provision of the Federal or State Constitution." In The Commonwealth v. McWilliams, Justice Bell used the following language: — "Of late years it has been much the fashion to impeach the action of legislative bodies as unconstitutional when it happens not to accord with the party's notion of propriety and abstract right. This is frequently done in their oblivion of the doctrine that express prohibition or necessary implication is essential to oust the legislature of authority. When this prohibition is not found in the primordial part, the exertion of a power cannot be deemed unconstitutional even though it seems to trespass upon our ideas of natural justice and right reason." Justice Rogers, in The Commonwealth v. McCloskey, 2 Rawle 374, had stated the same thought more strongly. "If the legislature," he said, "should pass a law in plain and unequivocal language within the general scope of their constitutional powers, I know of no authority in this government to pronounce such an act void merely because, in the opinion of the judicial tribunals, it was contrary to the principles of natural justice; for this would be vesting in the court a latitudinarian authority which might be abused, and would necessarily lead to collisions between the legislative and the judicial departments dangerous to the well-being of society, or, at least, not in harmony with the structure of our ideas of natural government."

In the case of The Louisville and Nashville Railroad Company, in the county of Davidson, decided by the Supreme Court of Tennessee, and to be found reported in Livingston's Law Magazine for June 1855, p. 369, Caruthers, J., discussing this question, uses this language: — "It is not for the judiciary or the executive department to inquire whether the legislature has violated...