Opinion
Argued January 8, 1872
Decided May term, 1872
Ira D. Warren for the appellant. S.F. Freeman for the respondent.
The agreement upon which the action was brought was personally binding upon the defendant, although he was, at the time he made it, supervisor of the town of Sparta. It is too clear for reasonable dispute, that although he was acting for the town, he intended to bind himself.
This agreement was made March 9, 1865, and it is conceded that it was prohibited by the language of section 4 of chapter 29 of the Laws of 1865. But it is claimed, on the part of the plaintiff, that that section is in conflict with the Constitution of the United States, and hence that it is void. The claim is that subdivisions 12, 13, 14, 15 and 17 of section 8, article 1 of that Constitution confer upon Congress the entire power to make the necessary laws for calling forth the militia to suppress insurrection, and that Congress having exercised this power, the State has no right to intervene and legislate upon the same subject. But this act had nothing to do with the militia of the State nor with calling them forth. Its only object was to encourage volunteering and enlistments, so as to shield the citizens of the State from a draft, and at the same time aid the general government in putting down the rebellion.
The more important question, and the only one in reference to which there was any difference of opinion at General Term, is the one upon the claim of the plaintiff that section 4 was repealed or suspended by chapter 41 of the Laws of 1865.
Chapter 29 provided for a State bounty, not exceeding $600, for men enlisting for three years, and also authorized cities, towns and counties, upon certain conditions therein named, to pay the same bounty, to be refunded subsequently by the State. Sections 8, 9 and 10 of the act provided for raising the money to pay the bounties by a State debt to be paid in eighteen years. By sections 11, 12 and 13, provisions were made for submitting the act to the people at the next general election; and section 14 provided that sections 1, 2, 3, 4, 5, 6, 7, 11, 12, 13 and 14 of the act should take effect immediately; but that sections 8, 9 and 10 should not become a law until ratified by the people. While by section 3 of this act the comptroller was authorized to borrow money to carry out the provisions of the act and to repay the money so borrowed from the money to be raised under sections 8, 9 and 10 no direct appropriation of money was made and no provision was made for the payment of the money borrowed in case the people failed to ratify. This act was passed February 10.
On the 24th of February, chapter 41 was passed, and it contains the first seven sections of chapter 29. Section 8 appropriates $30,000,000 to pay the bounties authorized by the act. Section 9 provides for a tax to raise the money; and section 10 provides for borrowing the money until it can be realized from the tax. Section 11 declares that the act should be a law from the time of its passage, but that it should not take effect until after the next general election.
Although the first seven sections of chapter 29 are contained in this chapter, I do not think that it was the intention of the legislature to repeal them or suspend their operation until chapter 41 should go into effect. It is hardly to be presumed that the legislature would have repealed an act passed but fourteen days before, and if they had intended to do so, they would probably have said so in some appropriate language, and would not have left it to mere inference.
The first act made no provision for paying the money borrowed, in case the people did not ratify sections 8, 9 and 10. And the object of the second act was to make provision, by taxation, to pay the money thus borrowed, in case the people failed to ratify, and, in that event, chapter 41 made complete provision for the whole case. But in case the people did ratify, then chapter 41 was not to take effect until after the adjournment of the legislature, so that it could be repealed, and the whole matter left, in that event, to chapter 29, which made full provision for it. Hence, there was no inconsistency in the two acts.
That there was no intention to repeal chapter 29, is made still more clear by chapter 56, of the Laws of 1865. As above stated, chapter 29 made no provisions for raising the money to pay the bounties, in case the act was not ratified by the people. Chapter 41 did not, in any event, take effect until after the canvass of the votes given at the next annual election. Hence, in order to make adequate provision for raising the money without delay, the act, chapter 56, was passed, which expressly recognized chapter 29 as in force, and was passed to supplement it. These three statutes are in pari materia, and must be construed together, and when thus construed in the light of the circumstances surrounding their enactment, and the objects intended to be reached, no doubt is left on my mind that section 4, of chapter 29, was in force when this contract was made.
This conclusion is fortified by a still further reason: section 4, of chapter 29, was enacted and took effect February 10. Fourteen days afterward, chapter 41 was enacted, with a provision that no part of it should take effect until after the canvass of the votes at the next election. How, then, could the latter act, before it took effect, by implication or otherwise, repeal or suspend any part of chapter 29?
The judgment should, therefore, be affirmed with costs.
All concur; LEONARD, C., not sitting.
Judgment affirmed.