The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1863-07-04

Governor Of Maine.
AUGUSTA, July 2, 1863
SIR The undersigned, Justices OF the Su-
preme Ju dicial Court, have the honor to SUBJ
init the following answers to the nterrogato-
res proposed in your communication of 9th
June last.
BY the express terms of the Constitution,
Congress has power "to declare war !" ITO raise
and support armies !" "to provide and maintain
a navy;;" ito make rules for the government
and regulation of the land and naval forces;'
"to proride for calling forth the militia to
execute the la,rs Of the Union, and suppress in
surrection, and repel inrasion;;' 'toprovide for
organizing and disciplning the militia, and for
governing such part of them as may be employ
ed in the service of the United States :" and "to
make all laws which shall be necessary and
proper for carrying into execution the forego-
ing powers" &c.
The power of Congress in the premises is
supreme. In great national emergency,
when the national unity and republican insti-
tutions are in peril, whether from foreign foes,
or, worse still, from domestic enemies. treason
ably endeavoring to overthrow the Union and
subvert our institutions it has the right to
command all the resources of the nation, and
the lives OF its citizens, to prevent, by any and
all proper means, that fearful anarchy which
would be so imminent, if its dissolution should
become an accomplished fact.
In pursuance of the powers thus briefly in
Dictated, and to meet the present crisis, TIE
act Of Congress, approved March 3, 1863, CHI.
IS, entitled ian act for enrolling and calling
out the national forces, and for other purpos-
es," was passed.
BY section IL, ii was enacted, shat any per-
son drafted and notified to appear as aforesaid,
may, on or before the day fixed for his appear
ance, furnish an acceptable substitute to take
his place in the draft; or he may pay to such
person as the Secretary of Warmay authorize
to receive it, such sum, not exceeding three
hundred dollars, as the Secretary may deter
mine, tor the procuration of such substitute,
which sum shall be fixed at uniform rate by
a general order made at the time Of ordering
draft for any State or Territory; and
thereupon such person so furnishing the sub
stitute, or paying the money, shall be dscharg-
ed from further liability under that draft"
As Congress has the power 10 command
and require the services of each citizen, so it
may prescribe the mode and manner of obtain
ing such services. The obligation of obedience
rests uopn the citizen. 1t is part of the dnty
he owes the government, which protects his
rights. The duty is personai-that of each
citizen. II 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 Communication
money be paid, he is to make such payment.
A friend may volunteer as substitute, or may
aid him in procuring whatever sum of money
may be determined by the Secretary of War
as the price of exemption; as he may aid him in
discharging any other personal liability. But
the abiity,-whether to serve, to procure a
substitute, or to pay the sum fixed as a CON-
mutation,-is in each case alike personal liza.
bility. Each is as much personal liability as
the obligation to pay a tax duly assessed. or
to discharge debt, or to perform any other
act required by contract or by statute.
1t will be perceived, therefore, that the ques-
ton amounts TO this, - whether a town can |
legally raise money gratuitously to discharge |
the pecuniary obligations of the citizens, or to |
procure their exemption from military or other
service. Is such power conferred upon the |
municipal corporations of this State?
The general power of towns to raise money |
is given by the Revised Statutes of 1858, CHI. 3.
section 26 in these words 1.-THE qualified yo- |
ters~of town may raise such sums as are
necessary for the maintenance and support of |
schools, and the poor; for making and renair
ing highways, and town ways, and bridges:
Tor the purchasing and fencing of burying
grounds; for purchasing or building and keep
ing in repair hearse and house therefor for
the exclusive use of its citizens and for other
necessary town charges"
BY subsequent acts further powers have |
been conferred upon towns; and the exercise |
of doubtful powers has been confirmed by |
legislative authority. But the raising of money |
under statutory provisions to cooperate NTH |
the general government, is manifestly to be |
distinguished from raising money for pur- |
poses so different, unauthorized by any exis- |
ting law
The words "other necessary town charges |
DO not constitute new and distinct grant of |
unlimited power TO raise money for any pur-
pose whatsoever, at the will and pleasure OF |
amaJorlty. They embrace all incidental ex-
penseS arising directly or indirectly in the due
ana legitimate exercise of the various powers
conferred by statute.
While towns may raise money to discharge
all liabilities in the performance of their mnl-
tiplied municipal duties, they cannot, unless
new powers are conferred, or an excess of
power receives subsequent legal ratification
transcend the authority given by the statute.
and incur liabilities in no way arising in the
course of its exercise
Thus it has been held by this Court, that a
tax for the discharge of a contract, entered
into by the town with the corporation of a toll