
    William Houston and Daniel W. Cline v. Silas H. Wright.
    1, The fourth section of the act of March 31,1864, " to organize and discipline the militia of Ohio,” etc., which provides that "alt persons subject to military duty, and who are not members of some volunteer organization, shall either become members of some volunteer organization, or shall pay into the county treasury annually the sum of four dollars; which sum shall be a commutation for fines and penalties for neglect to perform military service,” etc., is not in conflict with the first section of the twelfth article of the constitution of the state, which prohibits the levying of a poll tax.
    
      2. Such commutation is not a tax, but is only a means, or instrumentality, by whioh the general assembly enforces, to the extent deemed necessary, the performance of military duty enjoined by the constitution in section 1, article 9.
    Error to the court of common pleas of Hocking county.
    On the 5th of January, 1865, Wright, the defendant in error, plaintiff below, filed his petition in the court of common pleas of Hocking county against Houston and Cline, the plaintiffs in error, defendants below, stating:
    That the plaintiff is a white male citizen of Falls township, Hocking county, Ohio, and that, during all the time between March 31st and August 15,1864, inclusive, he was a resident of that township, and was over eighteen and under forty-five years of age. That in May, 1864, he was enrolled by the township assessor among the militia of that township, and that the assessor duly returned the enrollment to the auditor of said county. That, being so enrolled, and all the legal requisites attaching to the plaintiff, by article 1, sec. 1, of the constitution of the State of Ohio, he was liable to perform military duty in such manner, not incompatible with the constitution and laws of the United States, as may be prescribed by law; and that during all the time between March 31st and August 15, 1864, inclusive, he was, and still is, ready and willing to perform military duty in manner compatible with the constitution of the State of Ohio, and the constitution- and laws of the United States. That he was not, on March 31st, 1864, or previous to that time, a member of any volunteer organization whatever, organized under the constitution and laws of the State of Ohio, or of the United States, and that he did not, at any time between March 31st and August 15, 1864, inclusive, or at any time after the latter date, become a member of any volunteer company or organization under the laws of the State of Ohio, passed March 31,1864. That he did not pay to the treasurer of Hocking county, at any time before August 15, 1864, the sum of four dollars, denominated commutation money, nor did he pay, or proffer to pay, any part thereof, but refused and failed, and still refuses to pay the same, or any part thereof; but that during all the time aforesaid, he was willing and ready, when called upon for that purpose, according to law, to do and perform military service in said county or state. That there has not been, from March 31st to August 15,1864, inclusive, any organization of the militia of the State of Ohio; and that plaintiff has never been called upon, or required, or notified, in any manner, to do and perform military duty in said county or state, or elsewhere. That William Houston, the auditor of Hocking county, has lately appointed Daniel W. Cline a collector to collect, by distraint, said four dollars, together with thirty per cent, penalty; and that Cline threatens, and is about to distrain and sell the plaintiff’s property to pay said four dollars, and penalty and costs.
    The petition further avers : Mrst, That said commutation is in the nature of a poll-tax, and contrary to article 12, sec. 1, of the constitution of the state. Second, That section 4 of the laws of 1864 is in the alternative, requiring, not the performance of any military duty whatever, as required by article 9, sec. 1, of the constitution of Ohio, but that those subject to military duty should join some volunteer organization, such as existed at the passage of said act, or pay to the county treasurer, as therein provided, the sum of four dollars.
    Wherefore the plaintiff prays that Cline and Houston may be perpetually enjoined from.collecting, by distraint or otherwise, said four dollars, and penalty and costs, or any part thereof.
    The defendants below demurred to this petition, on the ground that it does not state facts sufficient to constitute a cause of action.
    The court overruled the demurrer, and also a motion of the defendants to disallow the injunction prayed for.
    And, upon the further hearing, the court finding “ that the plaintiff is charged with the sum in the petition mentioned, as commutation for military services, and that the defendants are about to enforce payment thereof, by seizure and sale of property ; and that the fourth section of the act of the general assembly of the State of Ohio, passed March 31,1864, entitled ‘ an act to organize and discipline the' militia of Ohio, and to repeal an act therein named,’ is unconstitutional and void; and that the defendants have no legal authority whatever to collect the said money in the petition mentioned, of the plaintiff,” allowed an injunction as prayed for, to be perpetual, upon the plaintiff giving an undertaking with sureties to be approved by the clerk of the court in the sum of one hundred dollars, payable to the State of Ohio.
    To all which rulings, orders and judgment, the defendants excepted, and to reverse the same filed their petition in error in this court, claiming that the common pleas erred: 1. In overruling their demurrer and motion. 2. In allowing the injunction.
    
      O. JV. Olds, attorney-general, and J. M. Groghan, for plaintiffs in error.
    
      Silas H. Wright, defendant in error, in propria persona,.
    
   Brinkerhoee, C.J.

The first section of the twelfth article of the constitution provides, that “ the levying of taxes by the poll is grievous and oppressive; therefore, the general assembly shall never levy a poll tax for county or state purposes.”

The first section of the ninth article provides, that “all white male citizens of this state, being eighteen years of age, and under the age of forty-five years, shall be enrolled in the militia and perform military duty in such manner, not incompatible with the constitution and laws of the United States, as may be prescribed by law. ”

By the section last above named, it is made the duty of all persons therein designated “to perform military duty;” and a full discretion, limited only by the “ constitution and laws of the United States,” is given to the general assembly to prescribe the “ manner ” in which that duty shall be performed,, and in the choice of means to enforce its performance.

The first section cf the act of March 31,1864, “ to organize and discipline the militia of Ohio,” etc., 61 O. L. 110, provides, “that all white male citizens, residents of this state, being eighteen years of age, and under the age of forty-five years, shall be enrolled in- the militia, and perform military duty in such manner, not incompatible with the constitution and laws of the United States, as hereinafter prescribed.” And the fourth section prescribes, that “ all persons who are subject to military duty under the provisions of this act, and are not now members of some volunteer organization, shall either become members of some volunteer organization, or shall pay into the county treasury annually, the sum of four dollars, which sum shall be a commutation for fines and penalties for neglect to-perform military service, except under calls to prevent or repel invasion, or suppress insurrection.”

This act contains, in all, eighty-six sections, and provides for the organizing, arming, uniforming, equipment, and drill of the active militia of the state, to be composed of volunteer organizations; for exemptions, and for fines and penalties for neglect or non-performance of duty by its members, etc. And the eighth section provides, that “ all moneys collected by the auditors of the respective counties under the provisions of this act, shall be paid into the county treasury, which shall, together with the aforesaid commutation money, paid into the county treasury, and fines and penalties collected under this act, constitute the military fund of the county; and no money .shall be drawn therefrom except for the benefit of the volun•teer force of the county, on the warrant of the county auditor, on the certificate of the ranking military officer of the ■county, approved by the adjutant general, or as may hereafter ibe provided in special cases.”

We are of opinion that the commutation money named in ■the fourth section of the act is not, in any sense, a tax. The .primary requirement of that section is personal military service in a volunteer organization. A requirement of personal ■service is not the imposition of a tax; Overseers of Armenia v. Overseers of Stanford, 6 J. R. 92.

The general assembly in its ample discretion as to the “ manner” in -which military duty shall be performed, has seen proper primarily to require its performance in a volunteer organization; and not as a burden, but for the ease and benefit of the citizen liable to military duty, leaves him the option .either to conform to that requirement, or to pay four dollars annually, “ which sum shall be a commutation for fines and penalties for neglect to perform military services.” And the fund realized from commutations, fines and penalties, is wholly devoted .to military purposes, and to the promotion of the efficiency of the militia of the state.

The legislature having power to impose fines and penalties as a means of enforcing the performance of military duty, it has power to fix their amount, and to prescribe a sum for which they may be commuted. Under the statute, no one can be subjected to the payment of this commutation money except by his own voluntary choice as an alternative for personal service ; and it is no more a tax than is any other fine or penalty imposed for the non-performance of a legal duty. It is only a means or instrumentality by which the legislature enforces,, to the extent deemed necessary, the performance of the military duty enjoined by the constitution.

The allegations of the plaintiff below in his petition, that he had not been called on to render military service, and that he had always been willing to render such service, are not well pleaded. The first is contradicted by the statute, and the second by the specific admissions of his petition.

The judgment of the court of common pleas will be reversed, the demurrer to the petition below will be sustained, the injunction will be dissolved and the petition below dismissed,

Scott, Hay, White, and Welch, JJ., concurred.  