Patten v. City of Bangor , 58 Me. 344 ( 1870 )

Dickerson, J.

The resolve of the city council of Bangor, under which the plaintiff claims bounty, provided for the payment of bounty to each man who had volunteered, or should volunteer, or to each enrolled man who had procured or should procure a substi-. tute on the city’s quota, under the call of the president, of Dec. 19, 1864. The declared purpose of that resolve was “ to fill the city’s quota under that call.” No man could be available for this purpose until he had been duly accepted, and credited upon that quota. This Avas a condition precedent to a valid claim for bounty.

The burden is upon the plaintiff to shoAV that he was thus accepted and credited. He was discharged from the 2d Maine Cavalry, serving in the department of the Gulf, reenlisted, and was mustered into tlie military service of the United States Jan. 17, 1865, as appears by the muster and descriptive roll of the detachment to which he belonged.

Under the head of “ Remarks ” upon that roll was the following-memorandum in writing, “ credited 4th district, Penobscot county, 3d ward Bangor city, Me.” This memorandum, made by the mustering-in officer more than two thousand miles distant from Bangor, did not, ipso facto, put the plaintiff upon Bangor’s quota. It was not competent for that officer to fix the plaintiff' upon that quota. Nor could the plaintiff' place himself there without the approval of the proper authority. This memorandum was evidence of the plaintiff’s election to go upon the quota of Bangor, nothing more. In order to make this election effectual, it must have been officially approved by the proper officer. No such official sanction was ever given. The quota of Bangor was filled without the plaintiff, and he cannot be upon a quota thus filled.

The construction of the resolve contended for by the counsel for the plaintiff would place men upon the quota of Bangor who had never been accepted as such by the proper authority, and render the city liable to pay an indefinite number of bounties under a vote to pay a limited number. Nor, under such construction, would the city authorities know when its quota was full. The plaintiff was never accepted upon the quota of Bangor, designated in the resolve in question, and is not entitled to the bounty claimed.

The plaintiff never having been upon the defendant’s quota, could not have given the mayor “ satisfactory evidence ” that he was so credited. It, therefore, becomes unnecessary to consider the question of notice to the mayor.

The cases cited by the counsel for the plaintiff are so widely variant in their facts, from the case at bar, that they furnish no rule for construing the resolve under consideration.

Verdict set aside.

Plaintiff nonsuit.

Appleton, C. J.; Cutting, Walton, Danforth, and Tapley, JJ., concurred.