Rand v. City of Worcester , 98 Mass. 126 ( 1867 )

Wells, J.

Assuming that the vote of the city council and the action of the mayor were equivalent to an offer of the bounty of one hundred and twenty-five dollars to all who should enlist in accordance with the terms of the order, the question is, whether the plaintiff comes within those terms. The order contained the proviso “ that no bounty shall be offered or paid to persons who have or may enlist in the companies now being raised for one year’s service for coast defence.” It is conceded that no such companies could be legally raised, under the laws of the United States, which would not be liable to be ordered at any time into general service; and that, unless properly raised and liable to general service, they could not be allowed upon the quota of the city. It also appears that in fact all three of the companies then being raised for one year’s service were enlisted under the laws of the United States and were liable to be called into general service. U. S. St. 1862, c. 25, § 3.

It is argued on the part of the plaintiff that the Massachusetts statute of 1864, c. 120, authorized the payment of bounties as consideration for the service rendered by supplying the demand of the United States upon the city for men to fill its quota; that that consideration is furnished by any enlistment for which the city receives credit; and therefore that it is unjust and contrary to the spirit and purpose of the statute that the bounty should be refused to any soldier credited to the city, whose enlistment made him liable to be subjected to all the dangers and hardships of the general service; that at least the vote should be construed most strongly against the city and in favor of this view of the purpose of the statute.

But we cannot doubt that the statute is merely permissive ; that it was intended to allow towns and cities,, full discretion whether to offer bounties, and to what amount and upon what conditions. It is strictly a bounty, and not compensation for services. The city might offer a large bounty for enlistments in one regiment or company, and a small one or none at all for enlistments in another. Where the character of the organization or its supposed destination was such as of itself to attract those who were otherwise liable to be drafted, the city may well be presumed to have considered that circumstance in the vote offering bounties for enlistments. This would be a sufficient reason for the adoption of the proviso withholding the proposed bounty from those who might enlist in such companies. The suggestion that it was intended to guard against claims for bounty where the enlistment was not such as to afford the city a credit upon its quota, seems to have no foundation; because that had already been provided against by the terms of the order, by which the bounty was not to be payable until the volunteer should have been “ mustered in, and duly credited to the quota of the city.”

The proviso must be understood as applying to enlistments under the laws of the United States, credited to the quota of the city as such, and therefore involving liability to general service. It defines the companies that are to be excluded from the operation of the order, as those that are, 1st. “ now being raised ; ” 2d. “ for one year’s service ; ” and 3d. “ for coast defence.” In the first and second particulars, all three companies conform alike to the description. In the third, neither company was, in a strict legal sense, within its terms. To relieve this ambiguity, developed by extrinsic facts, other extrinsic facts are to be resorted to. It appearing that the orders which issued from the state authorities for the enlistment of two of the companies specified that they were for coast defence, while that for Captain Perry’s company, in which the plaintiff enlisted, did not contain that statement, the court ruled that that fact was conclusive upon the construction of the order of the city council, and excluded all other evidence to show that Perry’s company was in fact equally intended and understood to be for the same service.

This ruling appears to us to be clearly wrong. We can perceive nothing in the order of the city council which should require or admit of a reference to the recruiting orders of the state authorities as conclusive upon its interpretation. Those recruiting orders could not give to the companies raised under them the legal character implied by their designation “ for coast defence.” We cannot see therefore that the fact of this designation in the recruiting orders stood upon any different footing from other facts which the defendant proposed to prove to aid in the interpretation of the vote of the city council. ,

In another respect we incline to think that the ruling oí the court below was wrong. The recruiting order for Perry’s company specified that it was “to be attached to the First Battalion Heavy Artillery, Mass. Vols.” By the aid of the other evidence offered, that service appears to have been as distinctly for coast defence as it could have been made if so designated in the order itself. Indeed the principal difference between the order to Perry and the others is, that, Perry having first applied for the authority, his order was absolute, and the particular service was assigned for his company; while the subsequent orders were contingent as to the acceptance of the companies that should be raised, and without designation of the particular part of the coast defence to which they would be assigned.

We are of opinion therefore that the recruiting orders did not warrant the distinction between the companies, which was drawn by the court below; and further, that, even if that distinction were well founded, the recruiting orders are not conclusive upon the question ; but the order of the city council is to be interpreted and applied by the light of all the facts which tend to show what companies were in fact embraced in the terms of the proviso. The defendants are therefore entitled to a new trial.

Exceptions sustained.