It seems to me to be erroneous to regard the act of congress as placing the payment of money upon the same footing with rendering military service. While such construction is not required by the terms of the act, it is contrary to its spirit, to reason and public policy, and to the contemporaneous judgment of the country."
The government needed men rather than money, personal service rather than pecuniary aid. The object of the act was to raise men, as appears from its title and other provisions. The difference between rendering military service and the payment of money is obvious; if every drafted man had rendered military service, the integrity of the republic would have been assured, while if every *554such, man had paid $300 dollars, instead of rendering such service, rebellion would have triumphed. It is the difference between the man who performed his duty to his country, in the hour of her greatest peril, and the man who paid a fine for not doing such duty. The ranks of the army were decimated to an extent substantially corresponding in numbers to the number of drafted men who were prevented from joining it by the payment of this fine. For every soldier disabled by sickness or wounds, exempted from further immediate service by the expiration of his term of enlistment, killed in battle, or suffering death from wounds or disease, the govérnment needed and had a right to a fresh recruit. To this call of the country every drafted man who would neither render personal service nor furnish a substitute responded, “ I will pay my fine.” The effect of such responses upon the soldiers in the field and the recruiting service was so disastrous, that congress was soon impelled to repeal the odious provision of the act under consideration. The intelligent judgment of the country at the time made a broad discrimination in its estimate of these two classes of drafted men.'
It is a misinterpretation of the true intent and meaning of the act of congress, as well as a misconception of the exigencies of the country, and a perversion of contemporaneous history, to hold that the payment of $300 under that act was.equivalent to the performance of military service. The meaning of the act is the same as though it had read, “ Every drafted man who does not 'enter the military service of the country, or furnish a substitute, shall pay a fine of $300.” So far from being equivalent to personal service, the payment of the money was imposed as a military fine for not rendering such service. Worcester defines the word “fine” to mean, “ a sum of money paid for obtaining a benefit, favor, or privilege.” This is precisely what the defendant did when he paid the $300 for which he now claims to be reimbursed. It was riot paid to promote the public advantage or welfare, but to purchase his own exemption from the performance of a personal duty, to enable Mm'to enjoy his ease and pleasure, advance his private interests, and. escape the privations, sufferings, and perils of war. When a *555drafted man elected to pay $800 in lieu of entering tlie service or fumisliing a substitute, sucli payment stands upon the same footing as the payment of a fine imposed by law for not attending a military training under a State law, or by judgment of a court-martial for other neglect or violation of military duty. Indeed, the motives for payment of the fine are more urgent and the duress under which it is paid is more formidable in the former than they would be in the latter class of cases.
The intimation in the act of congress that the money thus paid was “ for the procuration of a substitute,” was obviously designed to render the provision under consideration as little odious as possible, a sort of plea of justification for accepting money instead of men, whenever motives of fear, private pleasure or interest, or hostility to the war should induce the drafted man to adopt that alternative. For like reasons of public policy the act in question does not in terms designate the provision for the payment of money as a fine in terms, though it partakes of the nature of a fine, was obviously designed as such, and may properly bo thus regarded.
The provision for the payment of money cannot be regarded as a tax levied upon the drafted man, since congress has no authority to discriminate against them by imposing upon them an undue proportion of the expenses of the war, though it may impose a fine upon them for not rendering military service.
There was no element of public advantage, benefit, or welfare blended with the payment made by the defendant. On the contrary, such payment, as we have seen, tended to weaken and demoralize the army, and bring the government into disrepute and peril. The defendant paid the $300 in controversy as a fine imposed for non-performance of a personal obligation to the government, exclusively for his own individual benefit and as his individual debt. He might have entered the army and avoided this expenditure; but rather than do so, he chose to pay the fine imposed for such neglect. He has enjoyed the benefit secured by the sum he paid, and cannot rightfully compel others to reimburse him for such payment. To do so would be to require the inhabi*556tants of the defendant town to pay a tax to indemnify him against loss for neglecting to perforin a personal public duty, — to tax the drafted men of that town, who entered the military service or paid a substitute, in order to reimburse him the fine he paid for the privilege of staying at home.
A tax levied for such a purpose is not only a tax on A. for the private benefit of B., but it is also a tax on A. to reimburse B. the amount of the penalty he paid for not performing a personal public duty. A statute authorizing the imposition of such a tax lacks the distinguishing characteristic of all constitutional enactments that involve the necessity of taxation, a public purpose, and is, therefore, unauthorized by the constitution. Opinions of Justices, 58 Maine, 601 and 604.
The previous adjudications of this court in respect to the constitutionality of statutes authorizing towns to pay bounties, etc., afford no sanction for the statute under consideration.- Those cases are clearly distinguishable from the one at bar, as the public welfare was intimately blended with the private interest of the individuals sought to be benefited by the reimbursement. The present plaintiff’s case has no such association.
While the legislature may rightfully authorize the imposition of a tax to encourage and aid drafted men in rendering military service to the government, it has no constitutional power to authorize a tax to prevent them from performing such service.