
    POWERS against SHEPARD.
    
      Supreme Court, First District ;
    
      Special Term, October, 1865.
    Powees of Legislature.—Intebpeetatioet of Statutes.
    The precisions of sections 3 and 4 of chapter 29 of the laws of 1865, prescribing a maximum payment for enlisting soldiers is void.
    As the statute interferes with individual freedom of action, it must be construed like a penal statute, strictly; and it does not therefore forbid a contract for the procurement of volunteers at a higher price than six hundred dollars.
    Under our system of government, the moral, religious, and economic interests of society are beyond the sphere of legislative action. The exercise by the legislature of a control over the terms of contracts was never contemplated by the framers of the political constitution, and is nugatory.
    Demurrer to complaint.
    This action was brought by Edward J. Powers against John Shepard, to recover the sum of eight hundred and .fifty dollars, and interest, alleged to be due upon a written contract made by defendant with plaintiff to fill the quota of seventeen men, called for the United States, from the town, of Shasta, Livingston County, New York, under call of December 19th, 1864, by the President. The contract was made the 9th day of March, 1865, and modified on the 21st day of March, 1865. It appeared by the complaint that the terms of the contract were that the plaintiff was to enlist seventeen recruits to the credit of said town, at an agreed price of eight hundred and fifty dollars each, in full of bounties, premiums, &e., that said men were furnished, and defendant paid thereon the sum of $13,600, and plaintiff brought this action for the balance.
    The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action.
    
      S. I. Freeman, in support of the demurrer.
    I. The contract which is declared upon, is in direct conflict with an act of the legislature passed Oct. 10, 18d5, prescribing the amount to be paid for substitutes. The contract is absolutely void, and plaintiff cannot recover upon it (Laws of 1865, chap. 29, §§ 3 and 4).
    . II. It appears by the allegations of the complaint that defendant has already paid for each of said recruits the sum of eight hundred dollars, being an excess of one hundred dollars over the amount allowed by the statute cited,, to cover bounty, and incidental expenses of each recruit; therefore he cannot recover further.
    III. A pleading cannot he adjudged frivolous unless the grounds are clearly untenable or manifestly put in for pur poses of delay and vexation (6 How. Pr., 331).
    This has manifestly not been put in in bad faith, but as the only mode, in the judgment of counsel, to raise the question of the effect of the statute cited, upon contracts of this nature'; therefore if in the judgment of the 'court the pleading is insufficient for that purpose, leave should be granted to plead over again.
    IV. This contract is against public policy, in drawing men from one county to, or to be credited to another, and also in treating men as articles of merchandise, to be bought or sold.
    
      Ira D. Warren, for the plaintiff.
    I. Section 3 of the act of February 24, 1865, to provide for filling the quota of men required from the State provides “ that no greater sum than one hundred dollars shall be paid -for three years,” &c„ Section 4 then provides,“ that no city, county, or town, shall borrow, &c., except as provided in section 7.” Section 7 provides for cities, counties and towns borrowing money in certain ways, by a vote of the town, &c., making it a town tax. Section 4 further provides, “ Bor shall any city, county, or town, or individual, or any individuals, pay any money for such purpose or purposes otherwise than as herein provided (except that any individual may in any way hire a substitute to exempt himself from draft).”
    If the court thinks that the language “ otherwise than as herein provided” refers to the amount to be paid rather than to the manner of paying it, then we say
    1st. There are no negative words—nothing showing what the consequences of a violation of the act by an individual will be. There are no penalties, no mode of punishment; the act is not declared void if he does it—and as it is a perfectly legal one at common law, there is nothing in this act making it illegal to hire a man to serve one’s country, or a dozen men, if one pleases, any more than there will be to hire them to serve himself (Fairchild v. Gwynn, 14 Abb. Pr., 126, and cases there cited). If this statute means that no individual has the right to more than one subsitnte, when he paid for it from his own means, then it is one directly discouraging enlistment, and against public policy.'
    The allegation in the complaint is that these seventeen men were furnished for the defendant. The presumption of law is that they were furnished legally, as they were furnished, and accepted by the defendant.
    It does not appear that more than six hundred dpllars was paid to any recruit.
    II. Ye say that the legislature had no power to fix the price of substitutes, any further than the amount the State would pay. If some patriotic man chooses to to fill the entire quota of his town, and pay it out of his own pocket, has he not a right to pay ohe thousand dollars each for them ?—can the legislature say you shall not pay more than ten dollars % The language in § 4, “ otherwise than as hereinprovided,” refers to the manner of payment provided for in § 7, rather than to the amount. The language of the exception is “ may in any way hire,” not for any amount. Statutes in derogation of the common law admitting of two interpretations, that which most nearly conforms to the common law is' in all cases to be adopted, or if there is any ambiguity or doubt about it the common'law controls (McClush v. Cromwell, 11 N. Y., 593; and see 22 Wend., 395; 2 Cow., 419; 22 Barb., 662).
    III. But we think § 11 of this act settles this question. It first provides that it shall become a law from the day of its passage, T>ut shall not take effect until after tlie canvass of the vote at the next general election, which is in November next. In the concluding lines of § 11 the legislature declare that the law shall not take effect “ until after the adjournment of the next legislature ” (Laws of 1865, p. 65, § 11). Had it taken effect within twenty days of its passage, as provided for in the Revised Statutes, it could not apply to us, as it was passed February 24, 1865, and our contract was made March 8th, 1865, seven days before it could have taken effect had nothing been said about it. .
   Clerke, J.

I. If the legislature of this State has the power to prescribe to any citizen what amount of money he shall pay for a substitute to represent him in the national army, it has the power to prescribe what he shall pay for any article of commerce, for any pleasure, or any social or domestic enjoyment. I admit that the'legislature is vested with all the powers of government, notdelegatedto theHnited States, and which have not been expressly or impliedly delegated to other departments of the government of "the State, and that there are no restraints upon its political power, except those which are declared by the constitution of the State. But, I,-nevertheless, think that it is not absolute and omnipotent, and that its power is limited to the legitimate sphere of political society. Constitutional government, under whatever form it may exist, is not based on the idea that all the conduct, and acts, and interests of a citizen, are the proper subjects of legislation. On the contrary, the tendency of such a system is to confine the action of government within ks limited a sphere as is consistent with the maintenance of the peace, good order, and progress of society. It recognizes the great truth, that the most important and sacred purposes and interests of society are not within the domain of civil law, but are regulated and allowed by the power of self-adjustment, which God has implanted through the balancing and antagonism in it, of the various needs and aspirations of the individuals of whom it is composed. ■ The moral and religious interests "of society, for instance, are out of the sphere of law,—out of the sphere of political government; they are merely .left to individual and social efforts, prompted by benevolence and conscience. Not only are such efforts. infinitely more benignant, but they are much more effectual than they possibly could be made through the cumbrous machinery, of State or any other political government. The rights of imperfect obligation, to employ a legal phrase, are much more numerous than those of perfect obligation. So it is with the economic interests of the individuals who compose society. Every individual, or rather the great majority of individuals, know much better tliau any- public authority can know, what price he should give for the various comr modities of necessity or luxury, which he needs. The interests of the buyer on the one hand, and of the seller on the other, will be much more likely to adjust the proper price, than any intervening authority can possibly do: on the contrary, the latter would, inevitably, produce disturbance and confusion, if' not distress, as similar interference did in the markets of Paris, during the first French revolution. I hold, therefore, that the exercise of such power by the government was never contemplated by the framers of our political constitutions, or by the people who ratified them; and that the powers of the legislature cannot be extended so far as to dictate to individuals what price they shall give, or what price they shall receive, for any thing which they may want to buy or to sell. If it possessed this power, for instance, of dictating what price citizens should give for any article of dress, it could prescribe what kind of dress they should wear; and thus we may, during any legislative session, hear that we had returned to the days of sumptuary laws. Formerly, in England, penal laws were enacted by its omnipotent Parliament, to restrain excess- in áppearel,—chiefly in the reigns of Edward HI., Edward IY., and Henry YHL, against piked shoes, short doublets, and long coats; all of which, Blackstone tells us, were repealed by statute (1, Jac. I., c. 25). But, he remarks, as to excess in diet, there still remains one ancient statute unrepealed (10 Edw. 3, c. 3), which ordains that no man shall be served at dinner or supper, with more than two courses, except upon some great holidays, there specified, in which he- may be served with three.

Can we believe that such things’, in any age of the commonwealths of America are cognizable by laws, or that the people of any of them delegated such power to their legislature. No; the legislative power of America is not omnipotent in this sense; all regulations relative .to private manners and habits, and to prices and expenses, are not within the domain of civil law. The possession of such power belongs alone to absolute governments, or to Parliaments, which claim omnipotence. A power so infinite is inconsistent with the character and design of constitutional republican government. All the political power which the people, in their sovereign capacity, can, consistently with this character and design, exercise, has been delegated to the legislature; but. nothing more. It can no more, prescribe to us what price we shall pay for a coat, or for a substitute in the army, than it can prescribe what kind of shoes we shall wear, or how many courses we shall have for dinner. Ho government possessing such power could be called free; and yet in framing the present constitution, the people declare that they establish it in gratitude “ to Almighty God for their freedom.”

II. Again, even if the legislature possessed this power, I think an' act of this kind, so far as it interferes with individual freedom of action, should be strictly construed. Like penal acts,' and acts in favor of corporations or particular persons, acts in derogation of common right should not be extended beyond their express words or clear import. This act prohibits the payment of a greater amount than three hundred dollars for a one year volunteer or substitute, four hundred dollars for a two years’ volunteer or substitute, and six hundred dollars for a three years’ volunteer or substitute; that is, no volunteer or substitute shall receive a larger amount for these different terms of service, than the respective sums mentioned.

This action, however, is not to recover money paid to volunteers or substitutes, but money which the defendant promised to pay the plaintiff for furnishing volunteers or substitutes. This money, it is to be fairly presumed, not only included the sums paid to the volunteers or substitutes, but, also, such sum as would be a compensation to the plaintiff for procuring the volunteers or substitutes. It, certainly, would not be just to expect that this plaintiff should perform services without some compensation. Like any other agent or servant he is entitled to compensation; his services were exceedingly useful to the plaintiff, and could not be rendered by him without considerable labor and trouble; and the difference between the amount of the bounty allowed by the act and that promised to be paid by the defendant, may be deemed the measure of the plaintiff’s compensation. It does not appear in the complaint, that the volunteers or substitutes received more than the act allows.

The demurrer must be overruled with costs, with liberty to defendant to answer within twenty days on payment of costs of demurrer.  