dissenting. By the 13th section of the act of congress of the 3d March, 1863, for the enrolling and calling out the national forces, it is provided that any person who may be drafted into the service may, instead of going himself, furnish an acceptable substitute to take his ¡dace in the draft, or, if he shall not see fit to go into the service himself or to furnish a substitute, he has the privilege of paying to the government in lieu thereof, a sum of money not exceeding three hundred dollars.
In view of one of the drafts that had been ordered by the government, the inhabitants of the township of Delaware, in the county of Hunterdon, obtained an act of the legislature authorizing them to raise money by. taxation to relieve the inhabitants of the said township from the burthen of a draft. This act was approved on the 25th day of March, 1864, and it seems to authorize the clerk, when in the opinion of the township committee it shall become necessary, to hold a public town meeting for the purpose specified in the act, to call such meeting by setting up notices, &e.
*199It is made lawful, also, for the inhabitants of the township at such meeting to raise by assessment on the polls and taxable property, such sum as a majority of those present and voting shall decide to be necessary and proper, for the purpose of relieving the inhabitants from the burthen of a draft, and specifying the mode and maimer in which it is to be done. The collector of such taxes is required to pay out the money thus raised, for the purpose of relieving the inhabitants from the burthen of a draft, in such manner as shall have been directed by the said town meeting.
The special town meeting seems to have been called and held, and it ordered and directed that the sum of $31,000 should be raised by assessment and taxation; and it further ordered and directed that the money so to be raised should be applied by the collector to the payment of the commutation money for the exemption from the draft then pending, of such persons as should be drafted and accepted for that township. That is to say, the meeting resolved and directed that if a person should be drafted and was willing to go into the servicie of the country, the township would give him nothing. If he were willing to furnish an acceptable substitute the township would give him nothing to aid him in so doing, but if he should prefer to do neither, but chose to remain at home and do nothing, the township would pay $300 to enable him to do so.
The assessor added to the sum of $31,000 ordered to be raised, the sum of $776.99 to cover expenses, losses, &c., and assessed the whole amount against the inhabitants of the township, the plaintiffs among the rest. As the quota of that township was 101 men, the amount assessed was $1476.99 more than was necessary to pay the sum of $300 for each man which the township was called on to furnish. To get this assessment set aside is the object of this certiorari.. Various reasons have been offered in support of this application.
First. It is said that this act of the legislature is unconstitutional and void, for the reason that it is in contravention *200of the acts of congress on the subject. I am not able to see anything in the act of the legislature itself which can bear ■such an interpretation. It seems to be very well understood, that the township had no authority to raise money for such a purpose, especially at a special town meeting, without the aid of the legislature for that purpose. The object and intent ■of the act, so far as we can gather them from its terms, seem to have been to enable the township to relieve such of its citizens as should be the subjects of the draft, from the burthens that such draft would impose upon them. This might have been done, I think, either by offering bounties for volunteers or to such as should go into the service if drafted, or to aid the drafted men in procuring substitutes, or in assisting them to pay their commutation money. It is easy to see how the act of the legislature could have been carried into ■execution, in a manner greatly to have aided the government in the object which it had in view, which was to raise troops to enable it to suppress the rebellion. I can see nothing in the act which is in conflict with this great object, or that ■shows any unfaithfulness or disloyalty to the general government ; and yet it was quite possible for the township so to use the authority conferred by the act, and perhaps thus did so, as to embarrass rather than to aid the government, without any violation of the letter of the act of congress. Did •they do so ?
It is insisted that even if the act of the legislature be valid, still that the action of the township under that law made the whole proceeding nugatory, for the reason that it was intended to embarrass, ■ and did, in fact, embarrass rather than aid the government in its military operation. We have ■already seen that the money to be raised was to be appropriated, according to the directions of the special town meeting; and we have also seen that these directions were to use it in paying the commutation money, as it is called, for the men that should be drafted, and for nothing else. We can only ascertain the intention of the township from what it actually did; but whatever that intention may have been, it *201seems impossible not to perceive, that the course pursued was the most unfavorable one towards the government that could well have been adopted. And yet I am not able to' see, as between the government and the township only, why it could not lawfully do precisely what it undertook to do.
The township, as such, was not bound to do anything to aid the government. Its claim was not upon the township but upon the men of the township. Each man in the township that was or might be drafted, had an undoubted right,, according to the act of congress, to pay his commutation; money of $300 and to do nothing else. And who can say that the township, if its people had been unanimous on the-subject, had not the right to aid their drafted men in doing so. This act of congress was manifestly intended to be as lenient as possible, for it said in substance to drafted and acceptable men, that, if they preferred not to go themselves, they might furnish substitutes on such favorable terms as. they might arrange for; but to save them from what might possibly have been an extortionate imposition as to price, it further said you need not be compelled to pay for substitutes,, in any event, over $300, and if you cannot procure them for that sum, we will take the money and procure the substitutes, ourselves. The township saw fit to direct and confine its bounty to this last alternative] and although it seems very much like a premium offered to keep their drafted men at home, still it is an alternative clearly presented by the act of congress, which 1 think the township, as between it and the government, had the right to adopt.
But had the township the right, even under the authority of the act of the legislature, to adopt this course as against its. own unwilling and resisting citizens? Was it not, as to them, a total perversion of the spirit and meaning of that act, and wholly different from what has occurred anywhere else. If the relief contemplated by the act had been extended alike to all their drafted men, whether they went into the service themselves or whether they furnished substitutes, or whether they chose to use the money to commute with the *202government, all the money raised, if it were the right sum, would certainly have been used not only in relieving all their drafted men, but also in aiding the government according to the spirit and letter of the act of congress as well as that of the act of the legislature; but we can readily see that if the drafted men had all chosen to accept their lot and go into the service, either from motives of patriotism or from the considerations of compensation otherwise offered, no part of the money raised would have been used. None of the men on whom the burthen of the draft rested would have been relieved, while the object of the act of the legislature which was to relieve the drafted men, would have been wholly frustrated and the money raised for nothing. So if they had furnished substitutes. We have no knowledge of what actually occurred under this assessment, but we are not at liberty to assume that all the men of a township who might be drafted, would be so selfish or unpatriotic as to prefer their own indolence and ease in preference to their country’s welfare, or to accept the offered temptation, to be recognized in the community as either sluggards or cowards in the hour of the nation’s peril. We are bound, I think, to assume directly to the contrary. For the township then to determine to raise $31,000 for a purpose for which, in the nature of things, it might never be needed, and if needed at all only to a limited extent, and which might only partially relieve the drafted men from the burthen of such draft, was the adoption of a principle neither contemplated nor authorized by the act of the legislature. The object of the act doubtless was to relieve in some way, aU the men on whom the burthen should fall, whichever course they might, under the act of congress see fit to adopt, but the determination of the township was to relieve only one class, or the class only which should adopt but one of the alternatives presented by congress. This I think was wrong, and as it was done, in defiance of the will of a portion of its people, I think they are entitled to be relieved against it. The township had no right to tax its unwilling people to raise this large sum of *203money to relieve those on whom the burthen should fall, and then impose on its acceptance aii inflexible condition, degrading in itself, one which substantially compelled the township to furnish no men at all, and thus expose it to another draft, from which, by the sending of its proper quota, it would have been relieved.
It is further insisted that this assessment is illegal for the reason that the assessor assessed over $700 more than was ordered by the township meeting. This was for the purpose of meeting the expenses incident to the assessing, collecting, and paying out of the money. The assessor is expressly ordered to do this by the act of the legislature, and I do not see that he was wrong in so doing.
It also appears that the township directed the raising of $700 more than was necessary to pay the commutations of all the men which the township was liable to furnish, and the assessment is alleged to be erroneous for this reason, but this probably arose from not knowing at tlie time of the meeting the exact number of men that would be needed. If this excess of money bad been a very large one, it would seem as if the proceedings ought to be arrested on account of it, but as it was not, and as the quotas which the states, counties, and townships are liable to furnish, shift very much between the ordering and the completion of these drafts, and as the quota for that township, for auglit that appears, may have been reduced after the meeting was held, it would be, under the circumstances, I think, enforcing too rigid a rule to require perfect exactness in such a matter.
It further appears from the case, that the assessor made no new assessment against the tax payers and property of the township, as they then existed, by way of raising this money, but simply took and adopted the assessment precisely as it stood and had been made the year before. Ho seems to have been under the impression that he was required to do so, because, lie says, when speaking of certain of the assessments against some of the plaintiffs that he made them so from the fact, that he was to levy this tax from the former *204assessment made. In this he was mistaken. He was authorized by the act to adopt the same valuation.as that of the year before, but nothing more. In all other respects the assessment was to be 'made in the same way as the regular annual assessments are made. This be did not do, and, according to his own evidence, made no effort to do, except only by a resort to the former assessment. This, it seems to me, was exceedingly irregular and unlawful, and is a practice which this court should not sustain; for if it was right in this case, I do not see why it would not- be right at all times and in all cases. We cannot shut our eyes to the fact that between these two assessments a number of taxable persons had died and others arrived at a taxable age. Some had probably removed from the tpwnship and others removed into it. Old corporations may have expired and new ones been organized. Some persons deemed wealthy at the time of the first assessment, may have been in poverty at the time of the second ; and others, who may have had no taxable property at the time of the first, may have had a large amount at the time of the second assessment; persons that were single on the one occasion may have been married at the other, and vice versa. So, too, assessments that were erroneous on the former occasion, by being either too high or too low, should have been corrected on the latter, if possible ; but all these and other important considerations seem to have been overlooked and disregarded. The direction, therefore, contained in the act of the legislature, that the money ordered to be raised should be assessed upon the polls and upon the real and personal property of the tax payers of the township, has not been lawfully complied with.
It appears also as a matter of fact that some of these plaintiffs were assessed as single men who were married men at the time of assessment; and as no provision is made for an appeal, and as no session of the commissioners of appeal seems to have been held, and as no one was apprised by the assessor as to how he was assessed, no mode of correction was furnished. These last named assessments, therefore, *205being erroneous, should be set aside or at least corrected. But as the whole assessment was, for the reasons given, as I think, unlawful, it should be set aside so far as the plaintiffs in certiorari are concerned.
Assessment affirmed.
Reversed, 4 Vroom 450.