Brodhead v. City of Milwaukee 19 Wis. 624

Brodhead and others vs. The City of Milwaukee and others. Porter vs. The Same.

The legislature cannot create apublio debt, or levy a tax, or authorize a municipal corporation to do so, in order to raise funds for a mere private purpose.

The objects for which money is raised by taxation must hepubUo, and such as sub-serve the common interest and well-beiug of the community required to contribute.

To justify a court in declaring a tax void, and arresting proceedings for its collection, the absence of all possible public interest in the purposes for which the funds are raised must be so clear and palpable as to be immediately perceptible to every mind.

Claims founded in equity and justice, in the largest sense of those terms, or in gratitude or charity, will support a tax,

It is competent for a state legislature to authorize municipal corporations to raise money by taxation for the payment of bounties to volunteers who may enlist in the military service of the United States under an act of Congress and a call of the President of the United States, and may be credited to such town, city or village upon its quota under such call.

Chap. 14, Laws of 1865 (which empowered the qualified electors of each town, city or incorporated village in this state, at any annual or special meeting thereof, to raise by tax such sums as they might deem necessary to pay bounties to volunteers who might have enlisted, or should thereafter enlist under the call of the President of the United States, of December 19th, 1864, for 300,000 men, or who should thereafter enlist under any call of the President which might thereafter be made, and become credited to such town, city or village under such calls , and also to persons who should procure substitutes for themselves before being drafted, and have them credited to such town, city or village upon its quota under any such call, and for the purpose of giving aid to families of volunteers aud drafted men in the service of the United States or of this state— with a limitation as to the amount to be paid any such person or family), was a valid enactment.

The act was not invalid because it required such tax to be extended on the assessment rolls of the previous year.

Said act was applicable to the city of Milwaukee.

*625Courts must determine questions as to the power of the legislature under the constitution, when such questions are properly presented,'but cannot arrest the operation of a statute on the ground that it is unwise, unjust or oppressive, when no question of legislative power is involved.

If the room at which the election in this case was called was small, inconvenient or inaccessible to large numbers, the electors, or a majority of those present, might adjourn to some more suitable place, making proper announcement thereof, and causing proper notice to be given to voters who should como afterwards; such power not being expressly taken may by statute, and being incident to all corporations at common law.

A tax levied in said city for the purposes mentioned in said aotlield not to be invalid by reason of alleged irregularities or defects (vide infra) in the proceedings of the special meeting of the electors of said city by which the tax was voted.

Downeb, J.. dissenting, was of opinion that so much of the act as authorized the payment of bounties to volunteers who should have enlisted before the voting of the tax, was void, on the ground that the several towns&c. had no special public interest in the payment of such bounties. He also thought the act was inapplicable or void as to a city, consisting of several wards, because such a city had no quota, in the strict sense of the term, and its citizens do common interest in filling the quota of any separate ward; that it was inapplicable to a city containing (like Milwaukee) eight thousand voters, because it contemplated only one place of voting by ballot, and did not provide the requisite machinery for taking the ballots of so many electors in the time prescribed; and that the proceedings at the special meeting in Milwaukee were invalid on the further ground that such meeting was called and held in a room incapable of containing more than one-eighth of the electors, all of whom were entitled to be present and vote upon all questions submitted to the determination of such meeting.

APPEAL from tlie Circuit Court for Milwaukee County.

Chapter 14, Laws of 1865 (approved and published Eebrua-ry 2d), provides as follows:

“ Sec. 1. The qualified electors of each town, city and incorporated village in the state, shall have power, at any annual or special meeting thereof, to raise by tax such sum or sums of money as they may deem necessary to pay bounties to volunteers who may have enlisted, or who may hereafter enlist, under the call of the President of the United States, of December 19th, 1864, for 300,000 men, and who shall hereafter enlist under any call of the President which may hereafter be made, and become credited to such town, city or village, under such calls : and also to persons who shall procure substitutes for *626themselves before being drafted, and have them credited to such town, city or village, upon its quota under any such call, and for the purpose of giving aid to the families of volunteers and of drafted men in the service of the United States, or of this state: provided, that no more than two hundred dollars shall be paid to any such volunteer or person furnishing a substitute, or to the family of any volunteer or drafted man, out of the mon^y so raised.”

“ Sec. 2. A special meeting may beheld in any town, city or incorporated village of this state, for the purpose or purposes mentioned in section one of this act, upon a written petition to the clerk thereof, signed by five or more qualified electors and freeholders of such town, city or incorporated village, which petition shall set forth the purpose or purposes for which said special meeting is asked by the petitioners, together with the amount of money sought to be appropriated or raised by tax at such meeting for said purposes; and it is hereby made the duty of every such clerk, upon presentation to him of such petition, to call a special meeting of the qualified electors of such town, city, or village, by posting notices of the same in three or more public and conspicuous places in such town, city, or village; stating the time when, designating the hour and the place where such meeting will be held, and the object of the same, together with the amount of tax proposed to be voted, thereat, which notice shall be so posted not less than five nor more than ten days previously to the time appointed for holding such special meeting. Such meeting, if in any town, shall be held at the place of the last town meeting in such town, wherever the same shall be practicable, and shall be opened and conducted in the manner provided by law for holding annual town meetings, and the vote shall in all cases be by ballot. In all other cases, such meetings shall be held at the place designated therefor in the petition asking for the same. The board of inspectors for meetings in cities and villages, shall be chosen by a majority of the electors present at *627tbe opening of the polls, and. the village or city clerk (as the case may be) shall be the clerk of the said polls, * * * and the same laws which now govern the holding of elections, as to time of opening and closing the polls in cities and villages, shall govern the holding of the meeting contemplated by this act; provided, that the-electors assembled at any such meeting, not less than twelve in number, may, before proceeding to vote on the question of raising any such tax, agree or determine upon a less sum to be voted for any such purpose than the amount named therefor in the petition aforesaid; and a correct and complete record of the proceedings of every such meeting shall be kept, in which shall be stated the amount of tax voted thereat, and the purpose for which the same was voted; and such proceedings shall be signed or attested by the officers thereof, and filed and recorded in the office of the clerk of the proper town, city or village; and provided, also, that the board of supervisors of an)*- town, the common council of any city, or the board of trustees of any village, in which a tax or taxes shall have been voted at a meeting held for that purpose in pursuance of this act, shall be authorized to issue town, city or village orders, as the case may be, not exceeding in amount the sum so voted to be raised by tax, bearing interest of not more than seven per cent, per annum; and such orders may be made payable at such time or times, and at such place as such respective boards may determine within the period or periods limited for the collection of such taxes ; and such orders shall be receivable in payment of any taxes of such town, city or village, as the case may be, at any time after the same shall become due and payable.”

“ Sec. 3. The town board of supervisors of every town, the common council of every city, and the board of trustees of every incorporated village, in which the qualified electors thereof have, at any meeting called for that purpose, voted a tax upon the taxable property of such town, city or incorporated village, for the purpose of paying bounties to volunteers *628for filling tbe quota or quotas of sucb town, city or village, or for tbe purpose of supporting families of volunteers or families of drafted men, or for any of tbe purposes mentioned in section one of this act, or which may vote such tax for any or all of said purposes prior to the fifteenth day of February, eighteen hundred and sixty-five, are hereby authorized and empowered to make or cause to be made a copy of the last assessment roll or assessment rolls of real and personal property of their respective towns,cities or incorporated villages,and upon tbe valuation of said property, to apportion and carry out in said rolls tbe said tax so voted for the purposes aforesaid, or shall apportion and carry out said tax upon tbe assessment roll in tbe bands of tbe treasurer or other officers, and cause a warrant for the collection of said tax to, be annexed thereto, which warrant shall be made by tbe proper officer, and shall conform as near as practicable to the warrant prescribed by law for tbe collection of other taxes, * * * •”

“•Sec. 10. In each and every case where tbe qualified electors of any town, city or incorporated village, at a town, city or village meeting called or held with the intent to comply with any law of this state, shall have heretofore voted or shall hereafter vote a tax upon such town, city or village for the purpose of paying bounties to volunteers theretofore enlisted or who shall thereafter enlist in tbe service of tbe United States under a call of tbe President for volunteers, or for the purpose of aiding tbe families of such volunteers or drafted men, or for any of the purposes authorized by this act, the proceedings of sucb meeting, and tbe tax or taxes so voted thereat, shall be as valid and legal to all intents and for all purposes, as if the provisions of any sucb law bad been all literally and strictly complied with, notwithstanding there may have been errors, omissions or mistakes in giving the notice of such meeting, or in the time or place of holding, or in tbe manner of conducting the same; provided, that nothing herein contained *629shall be so construed as to legalize or validate any act or proceeding founded upon or growing out of actual fraud.”

On the 8th of said month of February, a petition was pre sented to the clerk of the city of Milwaukee, signed by more than five qualified electors and freeholders of said city, requesting him to call a special meeting of the qualified electors of said city pursuant to said act, “for the following purposes: First to vote to raise by tax, pursuant to said act, the sum of one hundred and twenty thousand dollars, to pay bounties to volunteers, who may have enlisted,” &c., following the language of the statute; “ Second. To vote to direct the common council of the city of Milwaukee to apportion among the several wards of the city, the sum of one hundred and twenty thousand dollars, or whatever sum may be voted at said meeting, for the purposes aforesaid, in the proportion following, that is to say: to each ward the proportion of the whole sum so voted that the number of the quota of such ward bears to the whole number of men in the aggregate to be raised by all of said wards under said call.” The petition further asks that said meeting be held at the City Hall of said city, on the 14th of said month of February. The clerk thereupon issued and published in the manner prescribed by law, a call for such a meeting, to be held at the time specified in the petition, at the common council room in the City Hall in said city, stating that the meeting would be opened and held in the manner prescribed by law, and that the polls would be open from nine A. M. to five P. M. of the day specified. The meeting was accordingly held, and the record of its proceedings, signed by the persons hereinafter named as inspectors, and countersigned by the secretary, and filed in the office of the clerk of said city, recites that said meeting was held pursuant to the notice duly given by the city clerk, “for the purpose of voting on the question of raising by tax the sum of $>120,000, for the purpose of paying bounties,” &e. &c., proceeding in the words of the statute ; “ Second. To vote to direct the common council,” &c. &c., proceeding in the *630words of tbe petition as above set forth. It then adds that the meeting was opened at 9 o’clock A. M. of said 14th of February, and Chas. H. Larkin, William Sauer, and Mathias Human, of the city of Milwaukee, were thereupon duly elected inspectors of such meeting, by the electors of said city present at its opening; that previous to the opening there were present at the meeting one hundred or more qualified electors and freeholders of the city of Milwaukee; that on motion of &c. it was moved that the amount stated in the notice of election to be voted for, be reduced to one hundred and nineteen thousand dollars, and that the vote be taken on that sum, which motion was adopted: that the polls were opened at 9 o’clock A. M., and remained open until 5 o’clock in the afternoon of said day; that prior to the opening of said polls, the said inspector and secretary duly took and subscribed the oath thereto annexed; that the whole number of votes polled at such meeting was two thousand four hundred and fifty, of which there were cast in favor of raising by tax the sum of one hundred and nineteen thousand dollars for the purposes aforesaid, one thousand six hundred and sixty-three votes; * * and against raising by tax [said sum], seven hundred and eighty-seven votes; none scattering.

On the 18th of the same month the board of aldermen of said city adopted a preamble and resolutions, by which, after reciting the action of said special meeting of electors, they determined that said sum of $119,000 should be levied as a special tax upon all the real and personal property of said city, and directed the making out of an assessment roll and apportionment of the tax, and a delivery of the same to the city treasurer, with a warrant for the collection of the tax as prescribed in said chap. 14. They then provided for bounties of $200 for the several classes of persons named in said chapter; directed the issue of city orders for the payment of such bounties; and appropriated any surplus of such tax that might remain after paying said bounties, to the support of the families of men who might *631be drafted under said call On tbe 20tb of the same month these resolutions were adopted also by the board of councillors of said city.

The first of the aboye named actions was brought by thirty-three residents and owners of real and personal property in said city, in their own behalf and that of all others, &c., against the city of Milwaukee and the mayor, clerk, treasurer and comptroller thereof, to restrain them from issuing, or authorizing the issue of, any of said city orders for said sum of $119,000, or receiving any such orders in payment of any taxes of said city, or levying or collecting the above named tax. The complaint alleges, inter alia, that said city is subdivided into nine distinct wards, each of which is represented in the common council; that under an act of Congress, approved February 21th, 1884, each of said wards forms a distinct district, the residents whereof, liable to military service, are enrolled, and to each district is assigned, under any call of the President for men for the military service of the United States, a certain quota, and unless this is filled within the time designated by the President, the number necessary to make up any deficiency are drafted from said residents, and upon the persons so drafted is imposed the obligation to furnish a substitute or enter into the military service of the United States; that on or about the 19th of December, 1864, the President, in pursuance of said act of Congress, issued his proclamation calling for three hundred thousand men; that subsequently, under said act, quotas were assigned by the war department of the United States, or the officers acting under its authority, to the residents liable to military service in each of said wards, which were as follows: 1st ward, 56; 2d ward, 66 ; 3d ward, 103; 4th ward, 75; 5th ward, 48; 6th ward, 35 ; 7th ward, 96; 8th ward, 29; 9th ward, 88; that by said proclamation the time allotted for furnishing the men was up to the 15th of February, 1865, after which day the residents liable to military service in any district in the United States to which quotas *632bad been assigned, were liable to a draft from their number to supply any deficiency in their quota; that after said 19th of December the residents in each of said wards, both those liable to military service and others, exerted themselves, by the voluntary contribution of money and otherwise, to procure voluntary enlistments, but such exertions and contributions varied very much in the different wards, both in the amount contributed and the proportion of the amount contributed to the ability to contribute ; that some of the residents of said wards, liable to military service, furnished, as they had a right to do, under said act of Congress, substitutes for themselves, and paid therefor sums varying from six to eight hundred dollars ; that the numbers due from said several wards on or about the 14th of February, 1865, after said quotas had been reduced by voluntary enlistments and substitutes since the time of said call, were as follows: 1st ward, 38; 2d ward, 53; 3d ward, 90; 4th ward, 73; 5th ward, 25; 6th ward, 32; 7th ward, 61; 8th ward, 9; 9th ward, 72 ; that the act of the legislature above recited was not applicable to the city of Milwaukee; that at the special meeting above described not over three hundred persons met at nine o’clock, A. M., at the common council room; that no proposition to determine the purposes for which said sum of $120,000, proposed to be voted, should be used, and how much should be devoted to each purpose, was adopted; that those present in favor of imposing the tax, being some two hundred, were in a majority; that thereupon inspectors were chosen; and that no other acts were done or proceedings had at the meeting than are stated in the records of the proceedings of the meeting, filed with the city clerk, and a copy of which is attached to the complaint, [and the substance of which is above stated]. The complaint further avers that the city of Milwaukee contains fifty thousand inhabitants, and eight thousand legal voters ; that the City Hall, where the meeting was held, is not capable of holding more than one thousand persons; that for the purpose of taking said *633vote, but one poll was open in tbe entire city, to wit, said poll in tbe common council room, and tbat it would be absolutely impossible to take tbe votes of one balf the legal voters of said city at a single poll between the hours of nine, A. M. and five, P. M. The plaintiffs insist, therefore, that the proceedings of said meeting furnish no warrant to the common council or any of the officers of said city to do the acts hereinbefore mentioned, and which are sought to be restrained. The complaint further avers “ that many of the residents of the different wards in said city have well discharged their duties as citizens, under said act of Congress; some have responded to previous calls of the President, and have served their term in the field; others have contributed large sums to furnish bounties for volunteers who have been credited to their respective wards, and aid and support the families of volunteers and of drafted men; others have paid large sums of money for substitutes; and yet, under color of said act of the legislature, and the authority of the said mass meeting, the officers of the city claim the right to compel the payment of the said sum of $119,000 by the levy of a tax upon all the taxable inhabitants and property in said city, for the purpose of enabling some residents of the ward's to avoid the duties imposed upon them by law.” It further avers that the annual assessment roll of real and personal property in the city of Milwaukee was made in June, 1864; that since that time there have been great changes in both real and personal property, &c., &c.; and that at this time no fair and uniform tax can be levied on that assessment roll.

In the action of Porter against The Oity of Milwaukee and others, the complaint, in addition to the facts relied upon in the other action, alleges that the plaintiff is a resident of the fifth ward of said city, and the owner of certain real estate in that ward; and that “ no part of said sum of $119,000, so appropriated and levied by the common council, will or can be used to fill the quota of said fifth ward * *, and no part thereof *634will or can be used to refund the moneys so paid as bounty to the men furnished upon and for the quota of said ward, or any part thereof, to those who contributed the same, except, perhaps, the sum of two hundred dollars, for which, the last man so mustered and credited to said ward gave to the committee who paid him his said bounty an order on said city.” It also alleges that said plaintiff is “thirty-four years of age, and was liable to enrollment and to render military service under [said act of Congress], and was enrolled as such in said fifth ward in August, 1864, and would now be liable to be drafted in said ward if he had not procured his exemption therefrom as provided by said actsthat being so enrolled, for the purpose of procuring his exemption from such liability, he, on the 25th of August, 1864, furnished a substitute who was received and mustered into the service of the United States, for whom he had paid $625; and that he was therefore, under the law, exempt from draft for three years, &c.

Upon these complaints, duly verified, the court granted orders upon the defendants to show cause why an injunction should not issue as prayed for; whereupon George G. Dousman, cleric of said city, filed an affidavit stating the presentation to him of said petition and the proceedings thereupon as above described. After a hearing, the court denied the motions for an injunction; and from these orders the plaintiffs appealed.

Thomas L. Ogden, N. J. Emmons and Joshua Stark, for the appellants:

[Each of the counsel for the appellants filed an able and elaborate brief. On the particular questions passed upon by the court, selections have been made from Mr. Stark’s brief, that being quite full and exhaustive upon those points.]

I. The act of February 2d, 1865, is unconstitutional and void. 1st. The taxes thereby authorized are not for public purposes. The power of taxation under republican government is not unlimited. Though it may not be restricted by any express provision of the constitution, it is still limited by its own na*635ture and by tbe spirit of tbe institutions, of whieb tbe constitution is but an expression. Two propositions are fundamental: that taxes can only be raised for public purposes, and that the purposes termed public must relate to the public interests of the territory, or body of persons within the limits of the municipality in which the tax is raised. Our constitution has added the requirement that “ the rule of taxation shall be uniform.”

“ The word taxes means burdens, charges or impositions, put or set on persons or property for public uses; and this is the definition which Lord Ooke gives to the wordtalliage (2 Inst., 532); and Lord Holt, in Carth., 438, gives the same definition, in substance, of the word tax." Matter of the Mayor &o. of New Yor7c, 11 Johns., 80. “ Taxation exacts money, or services, from individuals as and for their respective shares of contribution to any public burthen.” People v. Mayor éc. of Brooklyn, 4 Oomst., 423. “ The legislature has no constitutional right to create a public debt, or to levy a tax, or to authorize any municipal corporation to do it, in order to raise funds for a mere private purpose. No such authority passed to the assembly by the general grant of legislative power. This would not be legislation. Taxation is a mode of raising revenue for public purposes. When it is prostituted to objects in no way connected with the public interests or welfare, it ceases to be taxation and becomes plunder. Transferring money from the owners of it into the possession of those who have no title to it, though it be done under the name and form of a tax, is unconstitutional for all the reasons which forbid the legislature to usurp any other power not granted to them.” Black, C. J., in Sharpless v. Mayor &c. of Phila., 21 Penn. St., 168. “ Taxes are defined to be rates or sums of money assessed on personal property of citizens by government, for the use of the nation or state; or, as the government sometimes exacts from individuals services as well as money, a more enlarged and correct definition would be, that they are burdens *636or charges imposed by the legislative power of a state -upon, persons or property for public uses.” Dixon, Oh. J., in Knowl-ton v. Bock Go., 9 Wis., 418.

“ The remark that every wholly independent government has authority to lay taxes in its discretion, when applied to a constitutional or republican government, is of course to be understood with the qualification, that they are to be imposed to subserve the legitimate ends of taxation, viz., to defray public charges and expenses, and by general or public laws equally binding on every member of the community or for which they are levied.” Ch. J. Dixon in Lumsdenv. Gross, 19 Wis., 284-5. Soens et al v. Bacine, 10 Wis., 280. See also Foster v. Kenosha, 12 Wis., 620; Hasbrouck v. Milwaukee, 13 Wis., 43,

The other proposition is equally plain. This court in Hasbrouck v. Milwaukee, 13 Wis., 43 and 44, sustains the “ power of municipal corporations when authorized by the legislature, to engage in and promote works of internal improvement, such as the building of railroads, canals, harbors and the like,” upon the ground that they afford facilities for trade, commerce and inter-communication and add greatly to the general business, the commercial prosperity, and the pecuniary resources of the inhabitants of the cities, towns, villages and rural districts through which they pass, and say: “ It is in view of these results, the public good thus produced, and the benefits thus conferred upon the persons and property of all the individuals composing the community, that courts have been able to pronounce them matters of public concern, for the accomplishment of which the taxing powers might lawfully be called into action. It is in this sense that they are said to fall so far within the purposes for which municipal corporations are created, that such corporations may engage in or pledge their credit for their construction. Upon no other principle can the exercise of the power of taxation for such objects be sustained. And in doing so the courts have neves', to my knowledge, as-*637 téfided it to cases where it was not apparent that the members of the corporation concerned would be benefUd by the construction of the work contemplated.” So in Bank of Borne v. Borne, 18 N. Y., 48, the Court of Appeals, Johnson, Ch. J., affirm the proposition “ that the powers conferred on a municipal corporation must relate to the public interests of the territory, or body of persons within its limits.” The vital principle is “ local taxes for local purposes, and general taxes only for purposes which concern the whole state.” The city of Janesville may be authorized to raise money by taxation to construct water works for the convenience of its inhabitants. This would be a public purpose to Janesville and to its inhabitants, and therefore lawful. But “ the state could not construct water works for that city ” (Bushnell v. Beloit, 10 Wis., 226); neither could the expense thereof be charged upon Madison; neither the inhabitants of the state at large, nor the inhabitants of Madison have such an interest in the local improvements of Janesville, that they may be taxed to make them.

It is equally true that the common and general burdens of the state cannot be cast upon one or more counties, nor those of a county upon a single town or city, nor those of a whole city upon a single ward thereof. So a local tax levied in Milwaukee to clothe and pay Sherman’s army could not be valid ; neither could a like local tax be sustained for the payment of the legislature of Wisconsin, or for the construction of a court house and jail in the county of Racine. The burden of paying and equipping the federal armies, belongs to the nation. The expenses of the state government must be shared by the whole state; and each county and city must provide the means for its own local improvements. This principle is involved in the idea of taxation, and when it is disregarded, it is the duty of the courts to interfere to prevent the injustice and oppression which will certainly follow.

By the constitution of the United States, Congress has pow er to declare war; to raise and support armies ; to provide *638and maintain a navy; to make rules for tbe government and regulation of tbe land and naval forces ; to provide for calling forth tbe militia to execute tbe laws of tbe Union, and suppress insurrection and repel invasion ; to provide for organizing and disciplining tbe militia, and for governing sucb part of them as may be employed in tbe service of tbe United States; and to make all laws wbicb shall be necessary and proper for carrying into execution tbe foregoing powers, &e. Tbe power of Congress in tbe premises is supreme, and includes tbe power to prescribe what class of citizens shall be subject to military duty and to command their service in tbe national armies, subject only to the duty of compensation. In tbe exercise of these powers, Congress, on tbe 3d of March, 1863, passed “ an act for enrolling and calling out tbe national forces, and for other purposes.” By this act and tbe amendments thereto, particularly one approved February 24th, 1864, all tbe able-bodied male citizens of tbe United States, and persons of foreign birth, who shall have declared. their intention to become citizens under and in pursuance of tbe laws thereof, between tbe ages of twenty and forty-five years (except as in said laws excepted), are declared to constitute tbe national forces, and be liable to perform military duty in tbe service of the United States when called out by tbe President for that purpose. For convenience in enrolling, calling out and organizing tbe national forces, &c., each congressional district was provided with a provost marshal, surgeon, and commissioner, constituting the board of enrolment for sucb district, and each ward of a city, town, township, precinct or election district was made a sub-district, tbe residents whereof subject to -military duty were to be separately enrolled, and whenever men were called for by draft for tbe military service, quotas were to be assigned to these sub-districts in tbe proportion of tbe number enrolled therein. Thus tbe burden was equalized and distributed. Congress also provided for tbe clothing, rations and pay of all tbe national forces, and, to induce voluntary enlistments, pro-*639yided liberal bounties for those who should enlist, proportioned to the term of enlistment. By the act of 1864, they also provided that any person enrolled and liable to military service, might, before a draft, furnish an acceptable substitute, who should not be liable to draft nor then in the service, and thereby become exempted from the draft for the term of enlistment of such substitute. A drafted man might also furnish a substitute for himself, and so obtain his own release from service. The act of 1863, until amended, permitted a person drafted to furnish a substitute, or to commute by paying a sum not exceeding $300 to the government “for the procuration of a substitute.”

These and other provisions of these acts of Congress show that they were framed to reach the citizen or subject directly. The national government claims the personal allegiance and support of every citizen, and by this legislation enforces such allegiance, by exacting his personal service'in the national armies. It is an exercise of the taxing power in its broadest sense. The service required is however strictly personal. The • national government enrols, enlists, drafts, exempts, and in all its operations under these laws, deals with individuals only. The only obligation recognized and enforced is individual. 3STo one but the individual or some one in Ms stead can discharge his obligation. The obligation to render military service is as personal as that to pay taxes or to perform any other duty which may be required by the government.

The volunteers or drafted men who may be credited to the several wards of the city, enter the exclusive service of the United States, by whom they are paid, controlled and discharged. The city is under no more obligation legal or equitable to pay the soldiers who enter the service of the United States and become credited to the quotas of its wards,'either as volunteers or drafted men, than to pay the soldiers of Illinois or Maine. They are not the soldiers of Milwaukee, but of the nation. They all enter a common service, are subject to *640one common authority, receive a common and uniform reward, and fight shoulder to shoulder the common battles of our country. In what view, then, will taxation to pay these bounties be justified? Is its object, to fill up the national armies and put down rebellion ? That is not a matter of local or municipal duty or concern. It belongs to the whole nation. Is it to furnish the quota of the city under the President’s call ? The city has no quota — quotas are assigned to wards ; neither is any duty or obligation laid upon the city or its wards to furnish men or to fill their quotas. The duty of enlistment and service is not a corporate duty affecting all the members of corporation, but a personal duty, affecting only those who are designated as liable to do military service. All bounties to such persons, or to relieve such persons, are therefore mere gifts or gratuities. Is it to prevent' the suffering and distress supposed to be incident to a draft ? The relief of want and. suffering is acknowledged to be a proper purpose of taxation, upon the basis of charity. But how does it appear that a'draft will produce such results ? Are they necessary or only possible or accidental results ? If the latter, is not the duty as well as power of the municipal authorities limited to the alleviation of suffering, distress and want whenever and whei'ever found ? Is it to shift the burden from those on whom it is laid by Congress, to those whom Congress has exempted, and those who have already borne and discharged their full share of the burthen? What can be greater injustice, than to compel those who are exempt from military duty, by reason of age, infirmity or sex, those who are in the service, or have served their term and have been discharged, and those who have heretofore procured their own exemption by furnishing substitutes, to contribute to help others escape a duty and service, justly, because lawfully, imposed on them ? As well might the city raise money by tax to pay judgments against certain individuals, or to pay their individual taxes, or to discharge for them, or to aid in discharging, any other legal obligation. I *641can regard the the act of February 2d only as authorizing money to be l'aised by general tax, to be donated to A. and B. for their own benefit, without legal or moral obligation to induce the gift, and without equivalent of any kind being returned. What sort of claim have men who enlisted before the passage of this act, without reference to its provisions, to be paid bounties by the city ? What propriety can there be in voting the sum of two hundred dollars as a gratuity to a man who has not entered the service, but has purchased a substitute, and secured his own exemption ? If taxes may be voted for such purposes, to be distributed to individuals without equivalent, why may not money be raised by tax for the purpose of paying every poor man $500? If the right of taxation to pay gratuities is upheld in any case, what shall be the limit to the exercise of the right short of a general distribution of property on agrarian principles ?

It has not often happened that legislatures have attempted to authorize taxation for other than legitimate purposes; and few cases, therefore, are reported determining for what purposes taxation cannot be authorized. The cases have generally arisen from attempts by municipalities to raise money for purposes not authorized by tbe laws creating them. It has however occurred that the discussion necessarily embraced questions of legislative as well as municipal power. A few such cases will be referred to.

At a legal meeting of the inhabitants of the town of Bidde-ford, in Maine, on the 4th day of April, 1837, a vote was passed to receive the money apportioned to the town under the act of the 8th of March, 1837, entitled “ An act providing for the disposition and repayment of the public money, apportioned to the state of Maine, on deposit, by the governrúent of the United States,” and that the money so received should “ be divided among the inhabitants of the town according to families" Th e act of the legislature apportioning the money authorized the town to appropriate its portion thereof “for the same purposes *642that they have a right to any moneys accruing in tbe treasury from taxation,” also to loan tbe same, &c. In an action by an inhabitant of tbe town, having a family, to recover his share of the money voted at the town meeting, the supreme court of Maine (Shepley, J.) say. “ The case presented by the vote can be regarded only as a donation of the money to tbe ‘inhabitants of tbe town according to families.’ By a division according to ‘ families ’ must be understood a division per capita, or by numbers; * . *. If towns cannot legally grant, assess and collect money, and when it has been received divide it by donation among the families according to numbers, then the money received under tbe act of tbe 8th of March cannot be so divided; because the appropriation of it is restricted by the act to 1 the same purposes that they have a right to any money accruing in the treasury from taxation.’ To contend that towns have the power to assess and collect money for the purpose of distributing it again' according to numbers, is to ask for a construction, not only entirely unauthorized by the language of any statute, but in direct opposition to the language of limitation employed in giving power to the towns to grant money. It not only does this, but it asks the court to give a construction to the statutes which would authorize towns, if so disposed, to violate‘the principles of moral justice.’ Eor if the right to assess and collect money is without limit, it would not be difficult to continue tbe process of collection and division until the whole property held by the citizens of the town, had passed into and out of the treasury, and until an equalization of property had been effected as nearly as it could be expected to be accomplished by placing it all in one common fund, and then dividing it by numbers, ov per capita, without distinction ®f sex or age. Such a construction would be de - structive of the security and safety of individual industry and exertion. It would authorize a violation of what is asserted in our declaration of rights to be one of the natural rights of men, that of ‘acquiring, possessing and protecting property.’ Such *643a construction, would authorize a violation also of that clause in the constitution of this state, which provides that1 private property shall not be taken for public use without j ust compensation nor unless the public exigencies require it.’ No public exigency can require that one citizen should place his estates in the public treasury for no other purpose but to be distributed to those who have not contributed to accumulate them, and who are not dependent upon the public charity" Hooper v. Hmery, 2 Shepley, 375.

At a legal meeting of the inhabitants of the town of Eair-kaven, Mass., held August 2d, 1814, it was voted to raise $1200, ''for the payment of additional wages allowed the drafted and enlisted militia, of said town, and other expenditures of de-fence.” At that time open war existed between the United States and Great Britain. The enemy were upon the coast, in sight of the town, and had made an attempt to land. They were then laying waste and destroying the dwellings and other property of the people along the coast, and the town was immediately exposed to their ravages; the inhabitants deemed the necessity great and urgent, for their own immediate pro.-tection and defense, and the tax was voted unanimously. The supreme court of Massachusetts, in Stetson v. Kemptonet al, 13 Mass., 272, held the tax unauthorized and void. Oh. J. Paekeb, giving the opinion of the court, says: “ The case before us is that of a tax founded upon a’ vote of the inhabitants to raise money for the purpose of giving additional wages to those of the inhabitants who should be called, as militia men, to do duty in pursuance of lawful authority. Now to furnish the quota of militia is no part of the corporate duty of a town, or to pay them. The militia are drafted from those divisions and sub-divisions of the citizens which are established by law, without regard to the territory or jurisdiction of towns; and provision is made by law for the payment of such as may be called into actual service. To give additional wages, in order to encourage such as may be drafted, may evidence the sense *644of danger and the patriotism of a town, but it does not fall witbin any duty imposed by law ; and it is not certain tbat it would produce any valuable end. For instead of a uniform and equal payment of all those who, in other respects, are on a footing of equality, it would probably cause jealousies and dissensions, which might be highly injurious to the public ser vice. At any rate, such a tax can, in no view, be considered as laid for the discharge of necessary town charges. Eor no necessity of incurring the expense exists ; and the additional compensation intended is nothing more than a gratuity or bonus, which may well come from individual bounty, but cannot be the subject of legal exaction.”

In July, 1863, the justices of the supreme court of Maine were required by the governor of that state to give an opinion whether the towns or cities of the state could lawfully raise money by taxation to pay to the United States the commutation of $300 then allowed, for such of their inhabitants as might be drafted. In an opinion, signed by all the judges and published in the American Law Register for August, 1863, (p. 623), they say: “ As Congress has the power to require and command the services of each citizen, so it may prescribe the mode and manner for obtaining such services. The obligation of obedience rests upon the citizen. It is part of the duty he owes the government which protects his rights. The duty is personal — that of each citizen. If drafted, the service must be his personal service. If a substitute is procured, ‘ the procuration of such substitute’ is to be made by the person drafted. If commutation money be paid, he is to make such payment. True, a friend may volunteer as a substitute, or may aid in procuring the money to pay whatever sum may be determined upon by the secretary of war as the price of exemption, as he may aid him in discharging any other personal liability: But the liability to serve, to procure a substitute who shall be accepted, or pay the sum fixed as a commutation, are all none the less *645personal duties and liabilities. They are as much personal liabilities as the obligation to pay a tax duly assessed, to discharge a debt due, or to perform an act the performance of which is imposed by contract or by statute. It will be perceived, then, that the question amounts to this, whether a town can legally raise money, gratuitously to discharge the pecuniary obligations of its citizens, or to procure their exemption from military or other service.” The answer of the judges to this question is an unqualified negative, both for want of legislative authority, and because the money was proposed to be raised for purely private ends. Appended to this opinion in the Law Register is a note by the late Oh. J. Rédfield of Yt., earnestly supporting the proposition as admitting of no doubt, that “ municipalities of the states have no power to impose taxes, either to raise or to prevent raising troops for the service of the national government.”

,If the views expressed in the several opinions cited are correct, there can be no ground on which to sustain the act of February 2d, or the proceedings in Milwaukee under said act.

The sum of $119,000 was voted for all the purposes authorized by the act, without apportionment of the amount, and the resolutions levying and appropriating the amount make no apportionment. It follows, therefore, that if a tax for any one purpose mentioned in the act would be unconstitutional and void, then the whole tax so voted in Milwaukee, and all the proceedings had under the law, must be void. The court cannot divide up the amount voted, and assign any definite portion thereof to one of the purposes mentioned.

2d. The act of Feb’y 2d, 1865, conflicts with the act of Congress before referred to, and under sec. 2 of art. 6 of the constitution of the United States, is void. Congress has power to declare war, to raise and maintain armies for the national service, to raise revenues for the support of the national government, and to make all necessary and proper laws for carrying into effect these powers. It follows that Congress may and *646must prescribe who shall be liable to military service, and who shall be exempt therefrom, and also the mode and manner of obtaining those services. It may also apportion the burthens of taxation for revenue. “ The.power of taxing and the power of apportioning taxation are identical and inseparable. Taxes cannot be laid without apportionment.” 4 Comst., 427. In the exercise of its power of taxation, whether exacting personal service or money, Congress -within its jurisdiction is supreme. Not only the extent but the apportionment and distribution of those burdens laid upon persons and property for national purposes, are to be determined exclusively by the national legislature, whose judgment and discretion in the premises is absolute, except as controlled by the constitution of the United States. Congress has made this apportionment of burthens by its conscript and revenue laws, and has designated what persons or class of persons shall bear the particular burthen of military service. The act of the legialature is an attempt to change this distribution of the public burthens, and to shift that of military service from those on whom Congress has laid it, and cast it upon property, to purchase their exemption from such service. Can the legislature do this ? It certainly cannot enlarge the class composing the “ national forces,” nor add to the number of those liable to military service under acts of Congress. Can it practically do the same thing by taxation, compelling all who own property to contribute to' relieve from military service those subject thereto ? Why may not the same relief be extended to those from whom Cón gress exacts money by the revenue laws ? Is there any difference in principle ? Is the apportionment of taxation for revenue by Congress more absolute and less liable to be modified by state legislation, than its apportionment of taxation in exacting personal service ?

8d. Counsel also contended that the power of determining the amount and objects of taxation is a legislative power (Knowl-ton v. Roch Co., 9 Wis., 418; Weelcs v. Milwaukee, 10 id., 257; *647 Lumsden v. Cross, id., 284-5), and that the act in question was void because it- undertook to vest, this power in the electors. Bario v. Himrod, 4 Seld., 483 ; Parlcer v. Commonwealth, 6 Barr, 507; 10 Cal., 402; Bank of Chenango v. Brown, 26 N. Y., 467; 18 N. Y., 38; 23 id., 439,45® 4th. Counsel argued that the act, as applied to municipal corporations, was unconstitutional, because it imposed no restriction upon the power of taxation for the purposes mentioned therein ; allowing the electors to raise such amounts as they might deem necessary, and for an unlimited number of beneficiaries ; the clause relative to the families of volunteers and drafted men not containing any restriction to the volunteers &c. of the district raising the tax. Const, of Wis., Art. XI, sec. 3; Foster v. Kenosha, 12 Wis., 616.

II. The act does not apply to the city of Milwaukee. 1st. Because the city has no quota, and can have none under the acts of Congress. Quotas are apportioned to towns, wards of cities, precincts, election districts &c. and these divisions or sub-districts as they are called, are, for all purposes of enrollment, assignment of quotas, drafting &c., wholly distinct and independent. Two wards have no more interest or concern in common, under the law, than two towns. The act of the legislature authorizes the payment of bounties to volunteers and men procuring substitutes who shall be “ credited to such city.” To give effect to the obvious import and design of this language, the word city must be understood as meaning a single corporate body, so capable of receiving credits for volunteers that the benefit therefrom, if any, shall be general and co-extensive with its limits. This is clearly impossible in cities embracing several wards. A volunteer credited to a single ward, cannot be said to be credited to the city, within the meaning of this act. Such a construction would destroy the justice and equity of the tax. The essential purpose of the act evidently was to make the benefits conferred co-extensive with the burthens imposed; in other words, to provide *648that all who should be taxed for the payment of bounties, should be alike benefited by the credits procured, in the way of prevention of a draft. It is inconceivable that the legislature should intend to make wards whose quotas are nearly filled, pay bounties to aid other wards to fill up, which are much farther in arrears, ft would be as fair and just to provide for a common tax for bounties upon two or more towns, as upon nine wards of the city, which will be so differently benefited by the use of this money. It is well known that in assigning the quotas under the call of December 19,1864, any excess of credits due to any ward or other sub-district, for men before furnished, was taken into the account, so that the respective quotas were neither proportioned to the the total population, nor to the numbor of men enrolled in the several sub-districts. The fair construction and meaning of the act I take to be this, that the qualified electors of such towns, cities or incorporated villages to which quotas are or may be assigned, and credits given, under the calls of the president, may raise money, &c.; and this excludes Milwaukee from the terms of this act. 2. The act in terms applies only to towns, cities "and villages whose local affairs and interests are considered and managed by the electors, at meetings thereof held for the transaction of the public business annually, and at other times as provided by law, as in towns. It provides that the electors, &c., “ shall have power at any annual or special meeting thereof." The entire scope of the act would seem to be merely to enlarge the powers of the electors of towns, cities and incorporated villages at their annual or special meetings, and to provide a more summary and convenient mode of calling and holding such special meetings for the specific purposes of the act, and of carying out the determination of the electors thereat. But the electors of Milwaukee do not and cannot hold such meetings, either annual or special. They vote in their several wards, at annual and special elections. But the electors of the whole city, some 8,000 in number, cannot possibly meet together in *649one place for discussion, deliberation, and tbe transaction of tbe public business as in towns ; and tbe court will not convict tbe'legislature of tbe absurdity of intending to include sucb a city witbin tbe provisions of tbe act, unless tbe language absolutely compels it. 3. Counsel contended at length that tbe minor details and machinery of tbe law 'showed that it could not be applied to a city like Milwaukee. 4. A further reason for bolding tbe act inapplicable is found in section 43, cb. N, of tbe city charter: “ No general law of this state, contravening the provisions of this act, shall be considered as repealing, amending or modifying tbe same, unless sucb purpose be expressly set forth in sucb law.” Tbe act of 1865 contravenes tbe provisions of tbe charter as to tbe time and mode of levying and collecting taxes in the city, and as to tbe objects thereof.

III. If tbe act in question is held“to be constitutional and applicable to Milwaukee, the proceedings under it are void, because not authorized by its terms. Tbe act authorizes tbe payment of bounties to volunteers &c., who shall be credited to the city on its quota. But tbe bounties and tbe tax therefor in this case were voted for men credited to tbe city or any ward thereof, and tbe resolutions of tbe council direct tbe payment of bounties in accordance with sucb vote. “ Where, as in this case, the language of tbe legislature is clear and unequivocal, it is not for tbe courts to extend tbe "operation of a statute to any subject not embraced in it.” Oqden v. Glidden, 9 Wis., 51-53.

Jas. G. Jenkins, City Attorney,

to tbe point that tbe state legislature is restricted in its power only by the federal and state constitutions, cited Glarke v. Rochester, 24 Barb., 446; Guilford v. Ghenango Co., 3 Kern., 143 ; Sill v. Corning, 15 N. Y., 297; People v. Draper, id.,. 532, 549; Bank of Rome v. Rome, 18 N. Y., 38; Brewster v. Syracuse, 19 N. Y, 116 ; Leg-gett v. Hunter, id., 445 ; Tallman v. Janesville, 17 Wis., 77; Olark v. Janesville, 10 id., 136; Bushnell v. Beloit, id., 195. *650Unless it is apparent upon the face of the act that it is utterly devoid of any public purpose, it is valid. The quantum of public interest is not a question for courts to determine. Sharpless v. The Mayor of Philadelphia, 21 Pa. St., 172 ; Thomas v. Leland, 24 Wend., 65-; Morris v. The People, 8 Denio, 381; People v. The Mayor Sc., of Brooklyn, 4 Corns., 419; Brewster v. The City of Syracuse, 19 N. Y., 116; Guilford v. Supervisors of Chenango Co., 13 N. Y., 148. Counsel further argued that the objects sought to be accomplished by the act in question are of public concern ; because thereby the armies of the Union are replenished, and the government aided in its attempts to suppress insurrection; because in sustaining the government the liberties of the people are protected, and the blessings of free government perpetuated; because the property of every tax payer is thus protected, and he defended in its enjoyment; because the mechanics and artizans of the city being protected from the hardships of a compulsory draft, in-. dustrial and mechanical pursuits are thus fostered and sustained ; because support is provided for the families of volunteers and drafted men, and temptation to crime and a dissolute life, superinduced by want, is removed ; because general suffering consequent upon the enforcement of a draft is avoided, and riots and destruction of property prevented; and because the good name and credit of the city is maintained, and emigration induced and encouraged, and not repelled. — To the point that an act of the legislature should be declared void only when it clearly and palpably violates the constitution, counsel cited Cooper v. Telfair, 4 Dallas, 14; Fletcher v. Peck, 6 Oranch, 87; Ogden v. Saunders, 12 Wheaton, 270; Derby Turnpike Go. v. Parks, 10 Conn., 522 ; Sharpless v. Mayor of Philadelphia, 21 Pa. St., 164 ; Adams v. Howe, 14 Mass., 345; Wellington et al., Petitioners Sc., 16 Pick., 95; People v. Orange Co., 27 Barb., 575,586, 593; Ex parte McCollum,! Cowen, 450; Cochran v. Van Surlay, 20 Wend., 365, 881; The People v. Foot, 19 Johns., 58; Morns v. The People, 3 *651Denio, 381, 394 ; Olarhe v. Rochester, 24 Barb., 471 (affirmed by the Court of Appeals, March, 1864); Bepley v. /State, 4 Ind., 264; Dickson v. The State, 1 Wis., 122. Counsel also contended that the cases from Maine and Massachusetts cited -for the appellants, do not reach the point at issue, but merely decide that the municipal authorities had no power to levy taxes for the purposes there mentioned, under the then existing laws of those states. To the point that the act did not delegate legislative power to the people, he cited Corning v. Creene, 23 Barb., 33; Clarice v. Rochester, 24 id., 446 ; Bank of Rome v. Rome, 18 N. 'Y., 38 ; Starin v. Genoa, 23 N. Y., 439 ; Gould v. Sterling, id., 456; Bank of Chenango v. Brown, 26 N. Y, 467; Moers v. Reading, 21 Pa. St., 188; 21 Ohio, 77, The law is applicable [to the city of Milwaukee. 1. It does not repeal, amend or modify the charter, but simply confers an additional power for a particular purpose. 2. Sec. 23, oh. 10 of the charter is invalid. Kellogg v. Oshkosh, 14 Wis., 523. 3. The quota of the city is the aggregate of the quotas of the several wards. The legislature properly treated the municipal corporation “ in entirety” as a political division of the state.