Perkins v. Inhabitants of Milford , 59 Me. 315 ( 1871 )

Appleton, C. J.

This is an action upon a town order, dated March 22, 1865, for fifty dollars, payable to A. F. Gerrish or bearer, and by him indorsed to the plaintiff.

The order in the hands of the plaintiff is subject to the same defense as if in the hands of the payee. Emery v. Mariaville, 56 Maine, 314.

The evidence shows that Gerrish, the payee of the order, subscribed with others to raise a sum of money to aid in procuring soldiers for the late war. The subscription was voluntary and without expectation of repayment. The money was not borrowed nor obtained by any officer of the defendant town, but was subscribed and paid to aid the town in procuring men to fill its quota. In other words the money was a gift and not a loan.

The order was given to refund Gerrish for the amount subscribed and paid by him, in 1864, upon the subscription paper signed by him.

The order was given in pursuance of a vote of the town, and the inquiry arises whether the town had any authority to pass such vote. That it had not, will be conceded, unless some special act authorizing or confirming its doings, can be found.

The counsel for the plaintiff relies on an act approved Feb. 21, 1863, c. 170. But this act is entirely retrospective, and purports only to make valid certain doings of cities, towns, and plantations, in raising bounties, etc., which without its passage would have been illegal; It is no guide or authority for the future. It is in no respect prospective. It cannot toucli this case because there were no “ doings ” of the defendant town to be thereby made valid. It had done nothing, and no authority is given for future action.

Neither does the act of Feb. 20, 1864, c. 226, though referred to, have any bearing on the question. That act made valid the contracts made by municipal officers or by third persons in behalf of any city, town, or plantation, but without previous authority, to pay bounties to volunteers, etc., or to raise money to pay such bounties. But this case shows no contract whatever. No individual had become bound for the town. No municipal officer had contracted with any volunteers or others, or with any third person to raise money to pay bounties to volunteers, etc.

Neither is any authority to be found in the act of Feb. 17,1865, c. 298, to sustain this claim. This is entitled “ an act to make valid the acts and doings of cities, towns, or plantations, in voting and making provision for the payment of bounties to volunteers, drafted men, and substitutes of drafted and enrolled men, and other purposes.” By § 6, “ authority is conferred upon cities, towms, and plantations ” . . . “ to assume and pay to persons or associations, when they have advanced the bounty, or have, by private subscription, given a bounty to such volunteer, drafted man, or substitute,” etc. Here there has been no bounty advanced by any association or given by private subscription “to such volunteer, drafted, man, or substitute.” The case shows no such person as having received his bounty in whole or part from Gerrish. But unless this be shown, the plaintiff does not bring himself within this act, which only provides for repayment where one or more has advanced or given the money to a particular individual of the classes named, and cannot be extended to a case like this, where nothing of the kind is pretended to have been done.

The money paid was voluntarily contributed. It constitutes no consideration for a vote of the town to refund it. There can be no implied promise to repay what was, and was intended to be, a gift. Estey v. Westminster, 97 Mass. 324; Cole v. Bedford, 97 Mass. 325. “ The vote of the town,” observes Bigelow, C. J., in Shepard v. Turner, 13 Allen, 92, “ to raise money for the purpose of refunding to individuals the amount contributed by them for the purpose of raising recruits for the army was not jiassed in fulfillment of any legal obligation which rested on the town, nor did it constitute a valid agreement, by virtue of which the town was liable to pay a specific sum to any particular person.”

But even if the plaintiff’s case, by a forced construction, could be brought within the purview of some of the acts confirming and rendering valid what without their passage would be invalid, still there remains another objection to the claim which we cannot but regard as insuperable.

The money was voluntarily paid and without expectation of repayment. It was a gift, — so understood, so intended by all the parties subscribing. It was no advance or loan to the town, vdth the expectation of repayment. Whether the gift was to the soldiers enlisting or to the town makes no difference. ,

The naked question recurs, can the town raise money to give to individuals. This is not a gift for any public purpose. It is a gift as a recompense for past generosity. If a town can give to A, it can give to B. If it can give little j it can give much. If it can give, then every man holds his estate subject to the will of the majority, who can give away as much or as little as they please.

• Taxation is for public purposes, and for those the right of the government to impose taxes is unlimited. Taxation is imposed by the State to meet its exigencies. But taxes to meet the plaintiff’s claims would be taxes for a private purpose, — fór a gift to an individual.

The constitution gives no authority to raise money to give away. 58 Maine, 591. If it did, all protection to property would cease.

Plaintiff nonsuit.

Cutting, Walton, DiCKeeson, and Danfoeth’, JJ., concurred. Kent, J., concurred in the view that the case did not come within- either of the enabling statutes.