People ex rel. Lowell v. Board of Town Auditors

By the Court, Parker, J. This is an appeal from an order made at special term granting a peremptory mandamus requiring the defendants forthwith to assemble and allow the relator’s claim of $300 against the town. This claim arose as follows: On the 24th of March, 1864, the town of Westford, at a special town meeting held on that day, passed the following resolution : “ Resolved, that there be paid the sum of three hundred dollars to each man drafted, and not exempted, and the same be raised by a tax upon the taxable property of the town.” — 558 — IThd-fdsq'lution was amended so as to include those that were'“"drafted last year and paid three hundred dollars.” The relator, a resident of the town of Westford, on the 8th day of June, 1864, was duly drafted into the -military service of the United States for three years, and on the 23d of June, 1864, paid to the proper officer $300, and was discharged from further liability under that draft. On the 14th of April, 1865, a local act, relating only to the counties of Herkimer and Otsego, was passed, so much of which as applies to the question before us is as follows : “ All acts and proceedings * * of legally convened town meetings * * relating to the payment of. bounties to volunteers, substitutes and drafted men, * * are hereby legalized, confirmed and made valid.” (Laws of 1865, ch. 440, § 1.) -On the 7th of November, 1867, the relator presented to the board of town auditors of the town of Westford his claim for the amount so paid by him, accompanied by the requisite proofs. The board passed upon and rejected the claim, and refused to audit and allow the same. The claim was then, and is now, resisted on the grounds that the resolution does not apply to the relator’s case, inasmuch as he was drafted, and exempted from military service, whereas the resolution provides for the payment of $300 to “ each man drafted and not exemptedand that the act of the legislature legalizes proceedings of town meetings' relating to the payment of bounties to volunteers, substitutes and drafted men, and to no other payments. It is argued by the counsel for the appellants, that the resolution, and statute legalizing it, should be so construed as to harmonize with the then existing circumstances, and the wants and policy of the government—the call being for men and not money; and that in the light of; those circumstances, the resolution should be deemed intended to induce drafted men to go into the service, instead of to furnish them means, raised from tax-payers, — 559 — with which to procure their exemptions from the'||i$mr: anee of the personal duty imposed upon them by ttie"government and the laws; that it was intended to pay men for going into, and not for staying out of, the army. The 18th section of the act of congress, approved February 24, 1864, is as follows : “And be it further enacted, that the following persons be and they are hereby exempted from enrollment and draft, under the provisions of this act, and of the act to which this is an amendment, to wit: such as are rejected as physically or mentally unfit for the service ; all persons actually in the military or naval service of the United States at the time of the draft; and all persons who have served in the military or naval service two years during the present war, and been honorably discharged therefrom; and no persons but sueh as are herein exempted shall be exempt.” The exemptions here provided for might, under the act, be claimed, and passed upon by the board of enrollment, after the persons claiming them had been drafted and notified. By the 13th section of the act of congress, approved March 3, 1863, (of which the act of February 24, 1864, is an amendment,) it is provided, “ that any person drafted and notified to appear as aforesaid, may, on or before the day fixed for his appearance, furnish an acceptable substitute to take his place in the draft; or he may pay to such person as the secretary of war may authorize to receive it, such sum, not exceeding three hundred dollars, as the secretary may determine for the procuration of such substitute, * * and thereupon such person so furnishing the substitute, or paying the money, shall be discharged from further liabilty under the draft.” Taking the resolution of the town and the acts of congress together, there can be no difficulty, I think, in understanding the meaning and intent of the resolution. The objection of the appellants, to the allowance of the claim, rests upon the meaning which they apply to the — 560 — term, not exempted. The sum voted, they say, was to be paid “to each man drafted, and not exemptedthat is¿ as the words “not exempted ” have a general signification, and are not at. all restricted in the resolution—not exempted in ■ any way or for any cause, whatever—and the relator, although drafted, yet upon paying his $300, became thereby exempted from military service, the effect of the draft, and therefore is not, within either the terms ■ or spirit of the resolution, entitled to the money from the town. It is quite true, as the appellant’s counsel insists, that in giving construction to the resolution, we should keep in mind the circumstances, wants and policy of the government, as they appear and are expressed in these acts of congress. And it is also true, that as the resolution was passed with special reference to the provisions of these acts, the language adopted in it should be construed in view of that fact. Thus we see that, under the acts, the payment of a sum to be fixed by the secretary, not exceeding $300, by a drafted person, is not declared to exempt him from military service, but to entitle him to be “ discharged from further liability under that draft;” while another provision of said acts prescribes that “persons physically or mentally unfit for the service,” with others enumerated, (not including drafted persons paying the $300,) and no others, shall he exempt. Where, therefore, the resolution says, “ there shall be paid to each man drafted and not exempted,” the same meaning should be given to the term exempted as is given to it in the acts of congress, and it should be understood to mean, not exempted, as being persons specified in the 10th section of the act of February 24,‘ 1864, who are the only exempts allowed by the law. Against this construction I do not see any thing in the needs of the service or the policy of the government. By these acts of congress it had been assumed that the pay — 561 — ment, by a drafted man, of $300, was equivalent to the procurement of a substitute. The money was paid by the drafted man to the government for that purpose, and the government undertook, in his stead, to procure the substitute. Under this policy the drafted man who paid $300 was treated by the law, and should, for the purposes of the question before us, be considered as having fulfilled his personal obligations in the premises, as fully and completely as if he had, himself, gone to the field and there performed the duties of a soldier. And the reason for refunding him the money he had so paid for a substitute, was the same as though he had himself procured the substitute. And as a question of governmental policy and of strict justice, there was equal reason for providing that the tax-payers of the town should pay him back what he had thus paid to the government, as for paying him the same sum for himself procuring a substitute, or becoming a soldier. In either case it is to be presumed he furnished a soldier for the government, and it was just and right that his fellow townsmen should share with him the loss thereby incurred. The amendment to this resolution, which made it include those who were drafted the year before, and who paid $300, tends strongly to show the intent to- have been as we have above construed it. The idea that the voters who passed the resolution intended to restrict the payment to such drafted men as should themselves enter the military service of the country, is contradicted by the fact that they put those of the previous year who did not go, but paid, in the same category with those for whom they now provide the" $300. The mind of the voters upon the point in question is indicated by the amendment. Ho reason appearing for the difference, it is not to be presumed that they intended, so far as the resolution might operate, to enforce the draft personally, against those to be drafted, while they allowed — 562 — payment for a substitute to those drafted the year before. The intent as to those drafted last year being clear, beyond dispute, greatly strengthens the conclusion at which we have arrived, of a like intent as to those to be drafted the then present year, even if such intent is less clearly expressed in the resolution. I have no doubt that the relator’s case is covered by the resolution. I think, also, the act of the legislature includes the resolution in its legalizing effect, Ho question is made but that the town meeting which passed the resolution was legally convened. It is insisted, however, that the acts and proceedings of such town meetings relating to the payment of bounties to volunteers, substitutes and drafted men, alone are confirmed. And bounties, it is said, were given, in accordance with the meaning of the word, to induce men to enlist into, or to enter, the military service of the country. Hence it is argued that the confirmatory act does not apply to such a case as that of the relator. I can see no reason, either from the signification of the word, or from any other cause, for construing the word bounties, in its application to drafted men, as meaning payments to those, and those only, who served personally in the army. Drafted men were, in no sense, volunteers, and whatever provision was made for them, either by towns or counties, was made, not to induce them- to enter the service, but as a gift or bounty, to indemnify them for having been drawn into it, against their will. As already shown, the policy of the government did not require or prefer the personal service of the drafted man, but accepted as a full performance of his duty the procurement of a substitute, by himself, or through the agency of the government, upon payment by him of the price. It is a well known public fact, that it was not the custom in resolutions for payments to drafted men to make it a condition that they should do military service in their own proper persons. I do not think such a case can be found, or ever — 563 — happened. When the aet, then, speaks of bounties to volunteers, substitutes and drafted men, it means, as applied to drafted men, such gifts or bounties as are ordinarily voted to them, bounties in one sense, as being voluntary bestowments, and used in that sense, the other being manifestly inapplicable. The relator being entitled to the amount claimed by Mm from the town, it was the duty of the board of audit-' Ors to audit and allow the claim; this being the mode prescribed by law for putting it in condition to be provided for by the board of supervisors of the county. A mandamus was the proper remedy for the relator, upon the refusal of the board of auditors to perform that duty. (People v. Board of Supervisors of N. Y., 32 N. Y. Rep. 473. People v. Taylor, 30 How. 78, 86.) The'mandamus in this case required the defendants to assemble forthwith and audit and allow the relator’s claim. There is no provision of law authorizing boards of town auditors to hold special meetings; the town officers composing the board are to meet annually on the last Thursday preceding the annual meeting of the board of supervisors of the county, at which meeting they are to audit and allow the accounts of all charges and claims payable by their respective towns. (3 Gen. Stat. 302, 303.) The statute having thus fixed the time when they shall meet and perform their duties as auditors, and not having authorized any other meeting, I am inclined to think it is not competent for them to meet and perform those duties at any other time. It is by virtue of special statutory authority that boards of supervisors hold special meetings. (Laws of 1838, ch. 314, § 5.) The order appealed from should be so modified as to direct the writ therein allowed to require the defendants as the board of town auditors of the town of Westford, instead of assembling forthwith, and auditing and allowing the relator’s account, &c., at their next annual meeting, — 564 — to audit and allow the amount, charge and claim, &c., as in said order specified. And the writ issued upon said order should be amended accordingly. Neither party should be allowed costs of this appeal. [Broome General Term) July 21, 1868. t Decision accordingly.(a) Balcom, Boardman, Parker and Murray, Justices.] Footnotes [(a)] Affirmed by the Court of Appeals, June, 1869.