Winchester v. Inhabitants of Corinna

Kent, J. The claim of the plaintiff depends for its validity upon the construction of the votes of the town and the constitutional power of the Legislature to ratify and make binding those votes. Although by the record it appears that there was a diversity of opinion and a somewhat remarkable fluctuation and contrariety in the votes passed and reconsidered, yet the final vote, which must be regarded as superseding all the former proceedings, is plain and explicit. The article in the warrant called upon the town to determine what sum of money it would raise to be expended in hiring men to fill up the town’s quota under the call of July, 1864. The town voted "to raise three bundled dollars to each volunteer, when mustered into the United States service, and in addition to this the town pays each volunteer sixteen dollars per mouth for each months service. The term of service specified to entitle the volunteer to the bounty and pay above mentioned was one year.” This was an offer and a promise to pay to each such volunteer on the town’s quota, the sums named. The case finds that the plaintiff, after the passing of these votes, and " relying upon the strength of — 13 — the same,” did enlist upon the town’s quota required under the call of July, 1864, — was accepted and mustered into' the service on an enlistment for one year, and served until the end of the rebellion, when he was honorably discharged. He served nine months only. But we are satisfied that the term of service, referred to in the vote, was the term for which he enlisted, and not the time of actual service, if he was discharged by act of the government, before the year had expired. The essential thing which the town was desirous to secure, was an enlistment which would fill the requirements of the call and relieve the town or its inhabitants from liability to draft. This was done by the plaintiff. He complied with the offer of the town and would seem to be entitled to the sums claimed by him, unless the proceedings of the town and its votes are inoperative and void for want of legal authority to pass them. The town seems to have regarded the plaintiff’s claim as valid, except for one hundred dollars, which it claimed to retain, because the State paid one hundred dollars as bounty. But we think that the town is not estopped by its acts from setting up in defence, the want of legal authority to act in the premises. We must therefore consider this point. At the time these votes were passed, there was no legal power in this municipal corporation to pass them. It has been settled by a series of decisions, in this State and other States, that towns in their corporate capacity are not bound to furnish soldiers or material of war. It is no part of the duties or rights imposed upon them, by the nature of their powers, or the original purposes of their creation. The genera] doctrine is, that towns must be confined to the exercise of the powers and performance of the duties con-ferred by legislative acts. They have no inherent powers beyond those granted by such statutes. The authorities to sustain these, propositions are so familiar and so often cited that it is unnecessary to name them. At the time, when these votes were passed, the town, so — 14 — far from having any such power, was expressly prohibited by the Act of 1864, c. 227, from raising or paying any bounty in addition to the bounty of three hundred dollars offered by the State, and was only authorized to raise not exceeding twenty-five dollars for each man enlisted, to pay recruiting expenses. It is clear, therefore, that the votes of the town, at the time they were passed, transcended its powers and were illegal and could not be held as binding. But, by the Act of 1865, c. 298, these proceedings were made valid. The Act provides that " the past acts and doings of cities, towns and plantations, in offering, paying, agreeing to pay, and in raising and providing the means to pay bounties to * * * volunteers, drafted men or substitutes of drafted or enrolled men, who have been or shall hereafter be actually mustered into the military or naval service of the United States, are hereby made valid.” The defendants present two objections to the validity of the act in question. One is, that the Legislature could not constitutionally make valid the prior acts and votes of the town by a subsequent statute. The other is, that the Legislature had no power to authorize towns to pass such votes and pay such bounties, even if the statute had been enacted before the action of the town. In relation to the first objection, we are satisfied that, if the Legislature could authorize the action by pi’ior legislation, it could, in a case like this, give validity to the doings by subsequent ratification. It is unnecessary for us to consider the exact limit of this power to ratify and make valid the proceedings of corporations or individuals by subsequent legislation. We cannot doubt that where, as in this case, the action of the town was in relation entirely to public matters, of high national concern, and did not in any way touch or affect vested rights or private interests, as distinct from public exigencies, the Legislature might ratify and make valid whatever it might constitutionally authorize before action. The votes in question were in their nature of a political — 15 — character, and not personal or affecting individual rights of property. The whole current of authorities on the subject of subsequent ratification confirm this view of the binding force of such legislation. Allen v. Archer, 49 Maine, 346; Simmons v. Hanover, 23 Pick.; Walter v. Bacon, 8 Mass., 468; Patterson v. Philbrook, 9 Mass., 151; Locke v. Dame, 9 Mass., 360; Denny v. Malloon, 2 Allen, 361. In the case last cited, some of the prior cases in Massachusetts are said not to be very satisfactory. But there is nothing in the opinion, which would render doubtful the exercise of the power in a case .like this before us. The great objection in most of the cases is, that rights of individuals,-in distinction from their citizenship or their relations to the whole community, are injuriously affected. No such objection exists in the case before us. But the second question is whether the Legislature had any right or power to confer the authority upon towns to offer or pay bounties ? When these votes were passed, the country was in the midst of a gigantic struggle for existence, against armed foes, and "those of its own household.” It had then, for more than two years, been engaged, as a government, with armies in the field, in the determined purpose to save itself and the country, from the equally determined purpose of rebels and traitors to destroy both. Can any one question the right and duty of our general government to call into exercise the whole physical power of the country, and all its moral, financial resources ? In such form as it might decide to be expedient, it had the right to call every man capable of bearing arms into the field, and to demand the last dollar, if necessary, from the individual citizen. In its hour of imminent peril, it might require equally of the willing and the unwilling, of the loyal man and the sympathizer with treason, whatever any or all could furnish for its necessities, to the last man and the last dollar. Undoubtedly it must do this under proper laws, and orders, emanating from the proper sources. But it could de — 16 — sígnate the individuals or class of men required for any purpose; could fix the age and qualification of those who were called as soldiers into the field, and the extent and mode of taxation or excise duties, to obtain money and means. It could call directly on the individual, or through the action of the States, or of any municipality or organization, which would'assume to perform what was asked or required. It could avail itself of local divisions, the boundaries of States, counties, parishes or towns. In fact, the States were appealed to and notified of the number of men that would be required from its limits. The State being thus notified and its aid invoked, had it the power to act? It clearly had, unless there was some distinct prohibition in its own constitution. We know of no such prohibition or limitation in this matter in our State constitution. It would be strange if there should be any such found in that instrument. Eor, in this exigency, the nation and the loyal States were in common peril, assailed by a common foe, and were "in the same boat,” attempting to preserve a common existence. The people of the States and the people of the United States were identical. The State itself, as well as its people, whose sovereignty the Legislature represented, had a deep stake in the issue, and in the maintenance of the union of all the States, in its entirety and vigor. If it be granted, that the call was not an imperative one on the State, as on a province or vassal, by an absolute command to send to the field a stipulated number of men; or even such a call as was made on the States during the revolution, when we were under the old confederation, yet no one can doubt that the State might assume, if it saw fit, to aid by voluntary action, by offering bounties or additional pay, or in other modes. If there is any limitation of the power of the State in this respect, it must be found in the constitution. The whole legislative power, which was originally in the people, has been conferred on the Legislature, with such qualifications and restrictions only as are found in the constitution. We find none touching this question. — 17 — If, then, the State could do it, as the single act of the State, why may it not authorize any municipality or public organization to do the same thing? It is to be remembered that it is not a question of compulsory but of voluntary action. Now although, as we have seen, towns were never bound, as an act of municipal duty, to furnish men, yet the general government, by its own military officers, had seen fit to adopt town lines ancl to apportion the quotas by such limits, and to require that a certain number of men should be furnished from the citizens residing within the limits of the town. If the town, in its corporate capacity had' no liabilities, its citizens had a distinct liability and duty to perform, limited and measured by the town lines. It was not merely a patriotic duty, but a certain and fixed liability to furnish the quota of men required by the United States. There was no escape from this. The demand was for men, actual, liviug, efficient men, and these men must be furnished from the able bodied men within the specified ages. It was but just and equitable, that those who were exempt and those who remained at home, should contribute to make the compensation of those who periled their lives in the field, something more than mere monthly pay. The question is whether it was beyond the power of the Legislature to clothe the town with the power to do this if it saw fit. We find nothing in the constitution which prohibits the Legislature from conferring this power, which it might itself exercise, (and did exercise, in fact, most liberally and patriotically,) on towns. The votes passed by Corinna were within the power given or ratified. There was no want of equity or justice in the offer made. The votes wore passed in aid of the government, and were patriotic and loyal in their nature and scope. They violated no law, after ratification, and no provision of the constitution. They were simply a convenient and effectual mode by which the inhabitants could do their duty and "give encouragement,” not to the enemies, but to the — 18 — friends of their country. We see no reason why the plaintiff is not entitled to recover. We find our views are substantially the same, so far as the direct question of the power of the Legislature to authorize or render valid the doings of towns, as those of the courts in other States. Fowler v. Danvers, 8 Allen, 82; Booth v. Town of Woodbury, 32 Conn.; Crowell v. Hopkinton, 45 N. H., 9. The evidence offered by the defendant to qualify or affect the record is inadmissible. The vote, as recorded, must govern, and this is a promise to pay $300, and says nothing about the State bounty. Judgment for plaintiff for $444, and interest from June 26, 1865. Appleton, 0. J., Cutting, Walton, Dickerson and Tapley, JJ., concurred.