Russell, Trustee v. the City of Providence , 7 R.I. 566 ( 1863 )

Bullock, J.

Tha first resolution of the City Council appropriates the sum of one hundred thousand dollars, for the aid and relief of the families and dependents of those belonging to, or or residing in, the City of Providence, who have volunteered, or may volunteer, or be drafted and mustered into the military service of the United States. The second resolution relates to the application of this appropriation, _ as to amounts and time of distribution. The recipients of this aid and relief are classified. The first class embraces the families and dependents of such as were, at the time of the passage of the resolutions, in this service, as a part of the city’s quota. The second class includes the families and dependents of those who, after the passage of the resolutions, may enlist and be mustered in as a part of the same quota. This resolution extends the aid and relief to the families and dependents of side and wounded soldiers, and also of those who have died or may die in the service. The third resolution provides the means and agencies by which, and declares the manner in which, the appropriation shall be expended. For this end, it raises a committee, designated a “committee of relief;” names the individuals who are to constitute it; provides that this committee shall manage and oversee the extending of aid and relief to the families and dependents of drafted men as well as of volunteers; authorizes the committee to make all needful regulations to carry the resolutions into effect; and declares that they shall decide upon all applications made to them for aid. By an additional resolution, this committee are instructed to render assistance to the families and dependents of soldiers, forming a part of the city’s quota, who may not live, or have their residence, in the city.

The plaintiff enlisted on the 4th day of November, 1862, and was mustered into the service for a special duty, namely, to serve as a guard at the Portsmouth Grove Hospital. This special service was created under orders from the War Department, of the date of October 4th, 1862, subsequent to the passage of the resolutions, and prior to the enlistment of the plaintiff. The plaintiff counted as one- of the city’s complement or proportion to make up the State’s quota of the three hundred thousand men called for by the President of the United States, on the second day of July, 1862 ; and he remained in this service at the time this action was brought. The plaintiff testified that, at the time of his enlistment, he was unmarried, but then had a sister dependent upon him for support, who remained thus dependent until her marriage, in the month of February, 1863 ; and that he was married on the 28th day March, 1863. No question was made, that the plaintiff had not duly applied for aid, under these resolutions, and that his application had been rejected.

Upon these facts, is the plaintiff entitled to recover ? This depends upon the question, whether this action by the city, upon the one part, and the enlistment of the plaintiff, upon the other part, constitute, as between them, a contract. The plaintiff claims, as one entitled under what is designated as the second class, that the resolutions, by their own terms, absolutely and specifically appropriate and pledge to him, for the use of his family, and to all who, like him, enlist for three years and are accepted as a part of the city quota, the sum of four dollars per week; that the resolutions are in the nature of a proposal for his services, which proposal he has accepted; that,' like his regular pay, it formed an inducement for him to enlist; and that, having accepted the proposal, he acquired a vested right in the sum appropriated which the city cannot -impair or take away. On the, other hand, it is said, this appropriation was a mere gratadty, or voluntary contribution, made by-.the city to aid and relieve the needy wives, children, or dependents of soldiers, and their widows and orphan children; and this, without reference to when they entered the service, or whether as volunteers or drafted men, so long as such soldiers formed a part of the city quota; — a charity which the donors may, in their discretion, bestow or withhold; but, at the same time, intended to encourage enlistments so far as the free offer of a partial and temporary support might induce men of families, and of no means or of small means, to enlist.

It is a plain rule, that every part of these resolutions claimed as the evidence of a contract shall be construed together, -and so, if possible, ps to give effect to the whole instrument. It is true, the resolutions speak of “families,” and nowhere, in terms, speak of needy families ; and, that the appropriation is to be applied to these families in fixed sums, and at stated intervals. But it is equally true, that the appropriation-is avowedly one of “'ctóan'd relieff and that in every case where the aid and relief is extended to families, it is also extended to dependents. Neither can we overlook the fact, that the first apd most important of the whole series of resolutions, — that which provides the fund, — expressly extends this aid and relief not only to the families-of those who may enlist, but to the families of men already in the service, or who, by draft, may be compelled to enter it. In this respect, the three classes are placed upon the same footing. No exclusive proposal or inducement is offered to the one class, more than to the other. If, therefore, the city binds itself to pay to this plaintiff, for his family, the sum of four dollars weekly, by the same act, and in the same terms, it bound itself, as well, to every man then in the service, or to be drafted 'into the service as a part of its quota. The fact, that no class is excluded from this aid, indi cates that the action of the city was dictated in no spirit of a bargain, or of compensation for services, but in the spirit of a charity, comprehensive enough to reach and relieve the wants of every wife and child, wherever they might reside, whose husband or father had been, or might be, either by choice or necessity, removed to a distant and hazardous service.

If the resolutions are, in effect, a contract between the city and the plaintiff, and every soldier who forms or may form a part of its quota, then we have, under a limited appropriation, a liability and expenditure without any limit, either in time or amount; since the family of the living soldier may claim, so long as he remains in the service, and the widow and child of the deceased soldier, without any limitation as to time. If a contract is shown, and there be no doubt about its terms, and it be one possible to be executed,' then the consequences, whatever they be, are tVith the contracting party; but when the existence even of the alleged contract is denied, or its terms are ambiguous, the instrument' claimed to embody and evidence the contract, and all of its provisions, should be viewed in the light of the attendant circumstances. We are not to infer that the municipal authorities of the city imposed so great a burden upon its treasury.

The resolutions do not propose to pay or compensate the soldier for service, or to grant him a bounty, as a condition of enlistment,' but to extend aid and relief to his family or dependents. The terms, “ aid and relief,” imply want, need, or necessity on the part of the applicant. The resolutions contemplate the making of rules to regulate and govern the expenditure of the appropriation. These rules the committee of relief are empowered to make. Under them, claimants must make application, and prove that they are of the general class intended to be benefited or aided. If the applicant is a mother, she must show not this fact alone, but that she is dependent upon her son for support. After this preliminary evidence has been submitted, the committee of relief are to follow it up, by enquiries instituted by themselves, to ascertain not only whether the applicant is the wife, or child, of a soldier, but, also, whether such wife or child is needy, and so entitled to relief. This committee, designated by name, and selected, no doubt, for their fitness, are to decide upon all appli cations for relief. One of the conditions upon which the appropriation is made, and upon which any portion of it can be expended, is, that this committee shall, first decide that the applicant requires aid. There would be neither charity or justice in taxing the citizens of small means for the purpose of bestowing a modicum, in the form of a charity, upon those whose means may be more ample; and yet, if the .resolutions are obligatory, in the sense of a debt, then it is a debt due to the wives and children of all in the service as a part of the city’s quota, irrespective of their condition as to property.

It was said, that the city adopted this as a mode of hiring men, to avoid a draft. But the resolutions contemplate the contingency of a draft, and extend relief as well to the families of drafted men as of volunteers.

Again, the City of Providence, as a municipality, had no power to hire soldiers, no interest nor duty to prevent a draft, and no right to appropriate money to either of these purposes. Not only was it not thus authorized, but was impliedly prohibited from so doing by an act of the-General Assembly, passed at its special session of August 26th, 1862.

The appropriation being an appropriation in the nature of a charity, its distribution is to be goyerned by the will of those who create,or establish it. If, therefore, the accredited agents of the pity do not deem the family or dependents of the plaintiff as falling within the class of persons upon whom this charity is to be bestowed, we are not at liberty to reverse their action. The power to decide itpon all applications for aid and relief is vested in the committee of relief, and their decision is final.

Without considering any other points made in the case, we must, for these reasons, order judgment to be entered for the defendant for costs.