Powers v. Shepard — 45 Barb. 524

Majority

p. 524

Powers vs. Shepard.

Headnote

P. -by a written contract with S., agreed to enlist a specified number of recruits for the army, to the credit of a town, for the price or sum of $850 each, in full of bounties, premiums, &c. which sum S. agreed to pay him therefor. Held that P. could maintain an action on this contract, notwithstanding the act of the legislature, passed February 10, 1865, prescribing the amount to be paid for substitutes. (Lam of 1865, oh. 29, $$ 3, 4.)

The legislature has no power to prescribe to any citizen the amount of money which he shall pay for a substitute to represent him in the national army. .

THIS action is brought to recover the sum of $850 and interest, alleged to be due upon a written contract made by the defendant with the plaintiff, to fill the quota of 171 men called for by the United States,» from the town of Shanta, Livingston county, Hew York, under the call of December 19, 1864, by the President. Said contract was made on the 9th day of March, 1865, and modified on the 21st day of March, 1865. It appears by the complaint that the terms

p. 525

of said contract were, that the plaintiff was to enlist 171 recruits to the credit of said town, at an agreed price of $850 each, in full of bounties, premiums, &c.; that said men were furnished, and the defendant paid thereon the sum of $13,600, and the plaintiff brings his action for the balance. The deféndant demurred to the complaint upon the grounds :

1st. That the contract which is declared upon, is in direct conflict with the act of the legislature, passed February 10, 1865, prescribing the amount to be paid for substitutes, maintaining that the contract is absolutely ■ void, and the plaintiff can not recover upon it. (Bess. Laws of 1865, c*. 29, §§3,4) _

_ 2d. That it appears by the allegations of the complaint that the defendant has already paid for each of said recruits the sum of $800, being an excess of $100 over the amount allowed by statute cited previously, to cover bounties and incidental expenses of each of said recruits ; hence can not recover further.

I. If the legislature of this state has the power to prescribe to any citizen what amount of money he shall pay for a substitute to represent him in the national army, it has the power to prescribe what he shall pay for any article of commerce, for any pleasure, or any social or domestic enjoyment.

The legislature is vested with all the powers of government, not delegated to the United States, and which have not been expressly or impliedly delegated to other departments of the government of the state, and there are no restraints upon its political power, except those which are declared by the constitution of the state.

But I, nevertheless, think that it is not absolute and omnipotent, and that its power is limited to the legitimate sphere of political society. ' Constitutional government, under whatever form it may exist, is not based on the idea that all the conduct and acts and interests of a citizen are the proper

p. 526

subjects of legislation. On the contrary, the tendency of such a system is to confine the action of government within as limited a sphere as is consistent with the maintenance of the peace, good order and progress of society. It recognizes the great truth, that the most important and sacred purposes and interests of society are not within the dctfmain of civil law, hut are regulated by the power of self-adjustment, which God has implanted in it, through the balancing and antagonism of the varied needs and aspirations of the indivduals of whom it is composed. The moral and religious interests of society, for instance, are out of the sphere of law—out of the sphere of political government; they are wisely left to individual and social efforts, prompted by benevolence and conscience. Hot only are such efforts infinitely more benignant, but they are much more effectual than they possibly could be made through the cumbrous machinery of state, or any other political government. The rights of imperfect obligation, to employ a legal phrase, are much more numerous than those of perfect obligation.

So it is with the economic interests of the individuals who compose society. Every individual, or rather the great ma-. jority of individuals, know much better than any public authority can know, the price he should give for the various commodities of necessity or luxury which he needs. The interests of the buyer on the one hand, and of the seller on the other, will be much more likely to adjust the proper price, than any intervening authority can possibly do. On the contrary, the latter would, inevitably, produce disturbance and confusion, if not distress, as similar interference did in the markets of Paris during the first French revolution. I hold, therefore, that the exercise of such power by the government was never contemplated by the framers of our political constitutions, or by the people, who ratified them; and that the powers of the legislature can not be extended so far as to dictate to individuals what price they shall give, or what price they shall receive, for any thing which they may

p. 527

want to buy or to sell. If it possessed that power—for instance, what price citizens should give for any article o^ dress, it could prescribe what kind of dress they should wear; and thus we may find-, some morning, during any legislative session, that we had returned to the days of sumptuary laws.

Formerly, in England, penal laws were enacted by its omnipotent parliament, to restrain excess in apparel, chiefly in the reigns of Edward the 3d, Edward the 4th, and Henry the 8 th, against piked shoes, short ‘doublets, and long coats, all of which, Blackstone tells us, were repealed by statute 1 Jac. 1, c. 25. But, he remarks, as to excess in diet, there still remains one ancient statute unrepealed, (10 Edw. 3d, c. 3,) which ordains that no man shall be served at dinner or supper with more than two courses, except on some great holidays, there specified, in which he may be served with three.

Can we believe that such things in any of the commonwealths of America are cognizable by law, or that the people delegated such power to their legislatures ? Ho ; the legislative power in America is not omnipotent in this sense; regulations relative to private manners and habits, and to prices and expenses, are not within the domain of civil law. The possession of such power belongs alone to absolute governments, or to parliaments, which possess omnipotence. A power so infinite is inconsistent with the character and design of constitutional republican government. All the political power which the people, in their sovereign capacity, can, consistently with that character and design, exercise, has been delegated to the legislature; but nothing more. It can no more prescribe to us what price we shall pay for a coat, "or for a substitute in the army, than it can prescribe what kind of shoes we shall wear, or. how many courses we shall have for dinner. Ho government professing such power could be called, free, and yet in framing the present constitution, the people declare that they establish it, in gratitude “to Almighty God for their freedom.”

p. 528

think an act of this kind, so far as it interfered with individual freedom of action, should be strictly construed. Like penal acts, and acts in favor of corporations or particular persons, acts in derogation of common right should not be extended beyond their express words or clear import. This act prohibits the payment of a greater amount than three hundred dollars for a one year volunteer, or substitute, four hundred dollars for a two years volunteer or substitute, and six hundred dollars for a three years volunteer or substitute; that is, no volunteer or substitute shall receive a larger amount for these different terms of service than the respective sums mentioned. This action, however, is not to recover money paid to volunteers or substitutes, but money which the defendant promised to pay the plaintiff for furnishing volunteers or substitutes. This money, it is to be fairly presumed, not only included the sums paid to the volunteers or substitutes, but, also-, such sum as would be a compensation to the plaintiff for procuring the volunteers or substitutes. It certainly would not be just .to expect that this plaintiff should perform services gratuitously. Like any other agent or servant, he is entitled to compensation. His services were exceedingly useful to the defendant, and could not be rendered by him without considerable labor and trouble ; and the difference, between the amount of the bounty allowed by the act and that promised to be paid by the defendant, may be deemed the measure of the plaintiff's compensation. It does not appear in the complaint, that the volunteers or substitutes received more than the act allows.

[New York Special Term,

October 2, 1865.

The demurrer must be overruled with costs, with liberty to the defendant to answer within twenty days on payment of costs of demurrer.

Clerke, Justice.