The Indianapolis daily herald. [volume] (Indianapolis, Ind.) 1865-1868, 1865-12-05

Judicial Circuits will b. called during the
day.
We publish to-day, by particular request Of
attornies throughout the State, the important !
opinion Of the Court. delivered last week. on /
the subject Of the validity Of certain war bonds /
issued by counties and other corporations /
throughout the state during the wsr.
Another opinion, touching another class Of l
bonds, we Will publish tomorrow. II we can /
make room for IL.
OPINION.
Conman rs. Keighily ct al Appeal from !
Putnam Circuit Court.
Coffman, n Taxpayer Of Putnam county, 7
filed his complaint against The Board OF Com /
missiOners, the Auditor and his deputy, pray
ing for an injunction restraining the deiend-
ants from issuing OF circulating certain county
orders. and from assessing tax or appTopri- /
ating money for the payment thereof. a
demurrer was sustained 10 the complaint,
which presents the question for eonsidera-
ton:
ON the 9Th Of January ls5j, the Board Of
Commissioners Of Putnam county made an or
der directing the Auditor 20 issue county or
ders for two hundred dollars, each, payable
the first Of April, 1866. with interest; and also
county orders for two hundred dollars each,
payable the first Of April, 1867, With interest
Five hundred Of each class were 10 be issued
and placed i'm the hands Of William ID. Allen,
james G.. Edwards and a. III. Gilmore, who
were appointed recruiting agents Of the county,
and were directed 10 proceed to obtain recruits
for the United states serN ice, 10 he credited to
the county, and a. fast a. they obtained them
and had them mustered into the service. They
were to deliver 10 each Of them two OF the
county orders, one OF each class. The recruits
were TO be credited 10 each OF the townships in
proportion 10 their several quotas. On the 3d
Of February, following, the Commissioners
nodded this order directing the issue Of the
county orders in question, 10 each township
equal in number to their several quotas, under
the last call Of the President OF the United
states for troops. Under the modified order re-
cruiting agents were appointed for each town.
ship, who were to receive compensation Tor
each recruit.
The validity Of these orders il the turning
point Of the case in judgment
On the 18th of May, 1861, the Legislature
passed an act in which ii is provided . That
the Board Of Commissioners Of the seNeral
counties Of the State, and the Incorporated
cities and towns Of this state, be and they are
hereby authorized TO appropriate out OF their
respective counties, city or town treasures
such sums Of money as they may deem proper
( for the protection and maintenance oil the lam
lilies of volunteers in the army Of the United
states and Of the State of Indiana, during their
continuance in such armies, and 10 make such
appropriations for the purchase OF arms and
equipments, for the raising and maintaining OF
I
risdictiOns, either for home defense or for the
service Of this State or the United States, and
such other expenditures for the defense of their
respective counties, cities and towns, as the ext
geneies Of the times may, IN their judgment,
demand. and the County Boards and the
authorities of the interpretations, towns and
cities are hereby empowered to make such regu-
lations as they may think right and proper, IN
the disbursement Of said appropriations" Act
of the Special Session, 1861, p. 81 :. i.
Il rphpllIOn
unlocked for in the passage of this act. 1t was
the settled policy Of Indiana to promptly re-
1 spOnd 10 every call made upon her for troops
TO serve in the national army, in defence Of our
common country. And, whilst thousands of
brave men were ready to volunteer, the body of
/ those who remained at home were ever ready
/ TO share the burden. At each successive call
I OF the President for troops, in response to the
/ urgent desire OF the people, our various Boards
! Of Commits sioners, CITY Councils and other
I local authorities, made from time TO time APP
preparations for the support Of soldiers fami-
/ lies, and provided for local comities TO vOlun-
1 teers and drafted men. The moving cause for
! many of these provisions for local bounties was
doubtless desire 10 relieve their several loca-
I litics from pending drafts. Ii was found that
4 i'm large majority perhaps of the cases, the
: local authorities had transcribed the power
/ conferred upon them by the Act Of 1861, and in
compliance with what seemed ut the time to
be an almost universal wish, the Legislature
passed the act Of March ID, 1860, In which II Is
provided " that all bonds or orders heretofore
\ issued, or appropriations made by and under
the authority Of the Board Of Commissioners
of the several counties of this state and the in
! corporated cities and towns thereof for the pur-
pose of procuring or furnishing volunteers and
drafted men fOrthe army or navy Of the United
States, or for maintaining the families Of vol
! untccrs, soldiers, substitutes. or drafted men,
or otherwise TO aid the Government In snp
/ pressing the rebellion, be and the same are
| hereby ratified, affirmed and legalized" Act of
| 1850, p. l26 :.
IL is argued that the war power is exclu-
sively in Congress, and that IL is not competent
| for the state Legislatures to authorize the Civ
| ing Of local bOuntes TO induce volunteering in
filling up the army or navy Of the National
| Government. This can hardly be considered
an open question. The supreme Court of Con-
nectlcut In the ease Of Booth and others Is.
the Town of Woodbury." - Law Reporter
232, held valid an appropriation by the town
Of Woodbury., under the sanction Of an act Of
the Legislature Of that State, of six thousand
dollars, 10 be divided among the men who
should be drafted TO nil the quota of that town,
authorized by law of the United States, and
called for by the President, and for the pur-
pose Of assisting the citizens so drafted, to OBJ
tain substitutes, or Is a bounty II they person
! ally answered the draft and served.
The supreme Court Of Pennsylvania in the
ease Of ''Speer et al. rS. The School Directors.
aud Burgess and Chauncey, Of Blarsyille,"
American Law Register vol. 4, p. 66l, held
! t0at the payment OF bOunile> 10 volunteers. 10
/ enable borough TO furnish its military quota
under any impending and as yet unexpected
/ draft, l. payment for public or munificent
/ purpose, and that law authorizing borough
/ or other municipality TO raise money for this
purpose, by borrowing and by taxation, is
/ therefore constitutional.
The same thing was recognized by the SUI
| preme Court of Massachusetts,, in the case Of
Fowler et al. as. The selectmen and Treas
urer of DanVers - Allen, p. S0-Justice
I n ha A. L mfpf.
and answers the constitutional objection urged
| in judgment. He says: There Is nothing,
in my judgment, in the argument founded
upon the alleged repugnance Of the law TO the
/ power 10 raise and support armies. There is
no conflict of jurisdiction or power. Admit
ting TO the fullest extent the incompatibility Of
any state law assuming To regulate or 10 in
terierc with the raising and supporting Of
/ Federal army. there Is here no interference, no
| regulation, and no repugnance.
/ Congress purposely refraned from occupying
the whole held Of power, and expressly pro-
I vided for the acceptance Of volunteers in dis
charge of the draft. The Act of February -.
3 1861. after providing for the distribution of
military service 10y quotas among the munich
palitcS Of each State, declared that /" all yOlun-
teers who may enlist after the draft shall be
ordered, and before IL shall actually be made,
\ shall be deducted from the number ordered 10
/ be drafted in such ward, town or township,
precinct, election district or county" This
/ portion Of the field as 10 procuring volunteers,
was therefore left open to the exercise of any
| means 10 induce persons 70 enlist in relief Of
/ the municipality from the pending, but yet
uneNecuted draft. That this inten-
\ tional is recognized by the terms Of the
/ law. The third pro'iS0 Of the seventh
I section. which provides for transfers into the
naval service, declares that the county money
+ received from the state by every mariner or
seaman enlisting from that state, shall be de-
Quoted from his prize money. The proVisO in
/ the twentieth section, authorizing the dis
4 charge Of minors entering the service without
consent Of their parents or guardians, express
I ~ require such person, their parents guar
/ dlan. nrst TO repay 10 the Government ami 10
the state and local authorities, all bounties and
advance pay which may have been paid 10
I them. The federal law. therefore, does not as
I sumo 10 control or direct the procuring Of
! volunteers. 1t simply suffers or permits the
citizens 10 come forward voluntarily, and ac-
cept the service of the men drafted, and con-
templates that inducements in the shape of
bounties will be held out 10 volunteers by the
state, and municipalities from which they
came"
I The arr-s,raau+