Amity Township v. Reed , 1869 Pa. LEXIS 261 ( 1869 )

The opinion of the court was delivered,

by Agnew, J.

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We said, in Guilford District v. Zumbro, 5 P. F. Smith 432, that the decided cases were those of volunteers, and not of drafted men, and that the Act of 15th March 1865 leaves the payment of bounties to the latter wholly discretionary. The special act, relating to Erie county, of March 10th 1865, Pamph. L. 312, leaves it also discretionary. Neither is peremptory, and the road commissioners were therefore not required by the law to act under it.

In the present case no resolution was passed to pay bounties to drafted men, until after the close of the war, and after the plaintiff had been discharged from service. It is clear there was no obligation, by statute or otherwise, to compel payment of a bounty to him — not even a moral obligation to support a promise. The service of a drafted soldier is not performed for the state, hut for the United States. It is not voluntary but compulsory under the demand of law. Unlike the case of a volunteer, who need not serve unless he choose, and who may therefore create a contract relation by his acceptance of an offered bounty, that of the drafted soldier rests alone on the performance of a strictly legal duty, which Congress had a right to demand of him. There was, therefore, not only no contract here, but no consideration to support a contract; and the order of the road commissioners on the treasurer was a mere gratuity, which it was competent for them to countermand, and which they did withdraw by their resolution rescinding and repealing their former resolution, before the money had been paid by the treasurer. Their warrant, like that of county commissioners, is hut an authority to the treasurer to pay the sum stated, and, if unsupported by a valid consideration, can be revoked. We are of opinion, therefore, that the learned judge below erred in suffering a recovery on the undisputed facts of the case, and the judgment is therefore reversed.