Grubb v. Town of Menomonee

Downer, J. One of the principal questions for our consideration, on this appeal, is whether, under the provisions of chap. 14, Laws of 1865, commonly called the bounty act, the qualified electors of each town, at their -meeting, had authority to fix-the amount of bounty to be paid to each volunteer, not ex ceeding two hundred dollars. The first section of the act pro vides that the qualified electors of each town shall have power, at any annual or special meeting thereof, to raise by tax such sum or sums of money as they may deem necessary, to pay bounties to volunteers, and to persons who shall procure substitutes for themselves, and to give aid to families of volun teers or drafted men: “provided, that no more than two hundred dollars shall be paid to any such volunteer, or person fur [598] nishing a substitute, or to the family of any volunteer or drafted man, out of the money so raised.” It is contended that by this section the power is given in the enacting clause to the electors to determine the entire amount to be paid to volunteers, but not the sum to be paid to each. The amount to be paid to all must be made up of the separate sums to be paid to each; and it would be reasonable to construe the grant of power to determine the former to include the latter. If, however, without the proviso, there could be any doubt of the intention of the legislature, the proviso, it appears to us, entirely removes the doubt. What is the meaning and effect of the proviso ? A proviso generally restrains the enacting clause, and is a limitation or exception to a grant made or authority conferred. Baldwin, J., in Voorhies v. Bank of U. S., 10 Peters, 471. The proviso in section one, we think, is a limitation of the authority conferred by the enacting clause of that section. This is the natural construction. The proviso, by prohibiting the payment of more than $200 to any volunteer, prohibits the electors from voting to pay more than that sum to any one. It may also be indirectly a limitation upon the power given to the supervisors in section five of the act; for if the electors do not fix the amount to be paid to each volunteer or person procuring a substitute, the board of supervisors may. The complaint we regard, therefore, as setting out in substance a proposition on the part of the town to pay to each person who should within a reasonable time accept it, two hundred dollars, until the sum voted to be raised should be exhausted. 2. Do the plaintiffs, in and by their complaint, show that they accepted of this proposition by acting under it in procuring substitutes for themselves within the meaning of the act ? We think not. Six men hired three men to volunteer and cause themselves to be credited to the town on its quota. This [599] did not necessarily relieve the six, except temporarily, from being drafted under the same call. No one of the three volunteered as a substitute for any one of the six, or for any particular man. 3. There is no averment in the complaint that the three persons volunteering, either or any of them, knew when they volunteered of the offer of the town, assented to it, and enlisted with a view to obtain the bounty money, and that due notice of their enlisting and being credited on the quota of the town was given to the town. For the want of these allegations, the complaint is defective, within the rule laid down by this court in The State of Wisconsin ex rel. Dockstader v. The Supervisors of the Town of Richmond, 20 Wis., 287. Dixon, C. J., concurred. Cole, J. I have very serious doubt upon the first point decided in the above opinion: namely, that the law of 1865 gives the electors power to vote that each volunteer should receive $200. This authority was given the electors by the former statutes most clearly. Chap. 13, Laws of 1862, E. S. But the phraseology of the law of 1865 is different; and I doubt very much about its conferring this power on the electors of the town. I cannot therefore concur in the reasoning of Mr. Justice Downer on that point. By the Court. — Tbe order of tbe circuit court is reversed.