Harvey v. Town of Peacham , 42 Vt. 287 ( 1869 )

Argued and decided at the general term, 1868. The following, as the opinion of the majority of the court, was delivered by

Barrett, J.

The court hold that the plaintiff is disentitled to maintain this action because he had “ deserted the service,” within the purpose and meaning of the statute of 1864, No. 6, section 3.-The statutes of this state do not undertake to definp or prescribe what shall constitute such desertion. The statute of 1863, No. 2, confers authority upon the towns “ to grant and vote-such sums of money as they may judge best, to be paid to those persons who have been or may hereafter be drafted from said towns into the military service of the United States.” It is under a vote in pursuance of that authorization that the plaintiff claims the right to maintain this action.

The drafting of men for that service, and all that pertains to the military service of the United States, is provided and prescribed by the laws of Congress, and the rules and regulations of the military departments of the general government. Those laws and rules and regulations are the only source from which to learn what constitute the duty and defaults of the persons drafted. They give the signification, and application, and force of the terms used to characterize the persons drafted into that service, who make default in their duty under such drafting. Under the laws of Congress all the preliminaries and the act of making the draft are pursued and consummated. Up to this point no specific requirement or active duty is imposed upon such persons by the law. But when they shall have been notified, according to the provisions of the law, that they have been thus drafted, then the law imposes on them specific active duties. They are then fully within the behests of the law, for the military service of the United States. The Act of Congress, March 3, 1863, section 12, provides “ that the persons so drawn shall be notified within ten days, requiring them to appear at a designated rendezvous to report for duty.” Section 16 provides “that all drafted persons reporting at the place of rendezvous shall be allowed travelling pay from their places of residence; and all expenses connected with the enrolment and draft, including subsistence while at the rendezvous, shall be paid from the appropriation for enrolling and drafting under such regulations as the President of the United States shall prescribe,” etc. Section 7 provides “ that it shall be the duty of the provost marshal to arrest all deserters, whether regulars, volunteers, militia men, or persons called into the service under this or any other Act of Congress, wherever they may be found, and to send them to the nearest military commander, or military post,” etc. Section 18 provides “ that any person failing to report after due notice, as herein prescribed, shall be deemed a deserter and shall be arrested by the provost marshal and sent to the nearest military post for trial by court martial,” etc.

In the light of these provisions it would seem plain that a person, on being drafted and notified as provided by law, would, on the day he was required to report himself, be in the military service of the United States. The government then assumes the expense of his trial and subsistence ; makes an absolute requirement' upon him under the military law ; subjects him to arrest if he fails to comply ; provides that he shall be sent to a military post to be tried by a military tribunal, according to the martial code, and exposed to the penalties which that code visits upon deserters.

The bill of exceptions states that the plaintiff, as a witness on his own behalf, testified to being notified by a deputy provost marshal that he was drafted in the town of Peacham ; that he neglected to report on the day ordered, and that on the evening- of that day he was called on in Peacham by the said deputy provost marshal, and by the next train, which was on the morning of the following day, he was taken to the provost marshal’s office in Windsor, examined and accepted as a soldier, etc.

Prom the evidence on the part of the defense, it appeared that all the facts existed which rendered the plaintiff fully subject to being deemed a deserter, under said thirteenth section of the act of Congress, and that he was arrested as such, and as such was kept under arrest some ten days, at Windsor, and was then sent forward to the proper officers, at New Haven, Conn., with a copy of charges and specifications, as required by the laws and regulations governing in such cases. Upon these facts, had the plaintiff “ deserted the service ” within the meaning of the third section of our act of 1864 ? It seems to a majority of the court that he had. Prom the parts of the act of Congress above referred to, it seems clear that he was as much a deserter as if ho had left his regiment after being mustered in, and gone into the field, and as much a deserter from the service. The idea of the law of Congress, and of those by whom it was actively administered, was, not that the acceptance by the examining board constituted the commencement of service as a soldier under the draft, but that the service commenced when h? started for the rendezvous, according to the notice and order, and the fact of not being accepted was a discharge from that service. This idea is clearly manifested in the provision of the law for the payment of the expenses of travel and subsistence, not only of those accepted, but of those not accepted, who were therefore discharged. Though it was not brought to the attention of the court, on the argument of this cause, still it may not be unedifying to bring out, in this connection, the view taken of this subject by a very eminent military authority, sustained by the concurring opinion of an equally eminent civilian and jurist. It was promulgated by nine successive weekly publications, in the Army and Navy Official Gcazette, a paper issued by the authority of the War department:

“ [Circular No. 47.]

“ War Department, \

££ Provost Marshal General’s Office, }

££ Washington, D. 0., July 17, 1863. )

“ I. Drafted men become soldiers in the service of the United States by the fact of their names having been drawn in the draft. The notification, served upon them by the Provost Marshal, is merely an announcement of .the fact, and an order for them to report for duty, at a designated time and place.

“ II. The following opinion of the Hon. William Whiting, Solicitor of the War Department, is published for the information of all concerned:

“ £ When a person has been drafted, in pursuance of the Enrolment Act of March 3, 1863, notice of such draft must be served on him within ten days thereafter, by a written or printed notice, to be served on him personally, or by leaving a copy at his last place of residence, requiring him to appear at a designated rendezvous, to report for duty. Any person failing to report for duty, after notice left at his last place of residence, or served on him personally, without furnishing a substitute or paying $300, is pronounced by law to be a deserter ; he may be arrested and held for trial by court-martial, and sentenced to death.

££ £ William Whiting, •

“ ‘ Solicitor of the War Department.’

££ JAMES B. FRY,

££ Provost Marshal Gfeneral.”

It thus would seem to be beyond any reason for doubt that the plaintiff, under the law of Congress, was in the service to every intent necessary to give him the full character of a deserter, and that, by an overt act against the military authority to which he was subject as a drafted soldier, he deserted that service. Moreover, he fell literally within the expression of our statute of 1863, section 1, viz.: “ Drafted from said town into the military service of the United States.” It would seem unquestionable that the term “service ” in the expression in section 3 of the act of 1864, “ who has deserted the service,” means the same thing as in said act of 1863. It seems to me too plain to be argued, that our legislature, in making both of those statutes, used the language, and made the provisions of them with reference to the language and provisions, the true iutent and meaning of the laws of Congress as to the same subject matters. There was nothing else to which they could have had reference. This is so upon familiar principles of statutory construction. It seems to us, also, that it must be so held upon the known policy and purpose of our legislature in authorizing towns to vote and pay bounties to drafted men, as well as to volunteers. That policy and purpose were to encourage drafted men to respond to the draft, made according to the laws of Congress, and become soldiers, for the common weal, without the exercise of forcible compulsion, placing them on the same footing as volunteers, and thus giving them equal inducement to go cheerfully, and to serve faithfully, instead of subjecting themselves, as did the plaintiff, in the outset, and before going to the rendezvous, to arrest, and conviction, and death as a deserter, without ever having 'gone to the front, or done a moment of useful service. The object was not to make an undeserved gratuity to one who, when drafted and notified according to law, instead of going to rendezvous at the fixed time, “ deliberately remained at home,” having previously “ said repeatedly that he should pay no attention to the notice or order, and announced that ‘ Old Abe and all his imps could not make him respond to the draft,’ and used other shallow expressions to the same effect,” and rendered it necessary forcibly to am st him and proceed with him in the manner fully stated in the bill of exceptions.

The fact that he came within the literal terms of the vote of the town under which he claims the bounty, and was accounted to the credit of the town towards its quota, does not vary the status of the plaintiff under our statute of 1864. If he had deserted from the field he would have been accounted towards the quota the same as if he had remained faithful and true. Yet I suppose that no one would claim, in the latter case, that he could have maintained his action for the bounty. The statute excludes him from the benefit of the provisions authorizing the towns to vote bounties, and from availing himself of the vote of the town in pursuance of such authorization. The defect of right in this case results from the fact that he “ deserted the service.”

A point was made in the argument, that in order for the defense to be maintained in this case, the fact of desertion should be proved only by a record of conviction by court martial. There is no provision in any statute to this effect. This defense is not in the nature' of a suit or prosecution against the plaintiff for the violation of the law, in which a conviction would be followed by a pecuniary or other penalty. The operation of the defense is not to deprive him of any common or special right as a citizen, in the nature of a forfeiture of any privilege as a citizen. He comes into court to enforce by action a claim depending on a special public statute. The defense goes only to the extent of showing that he is not one of the claás of persons for whose benefit the statute was made; that in fact he never had any right in virtue of it.

It is obvious, moreover, that it could not have been intended that the fact of desertion under that statute must be shown by a record of conviction, or by a conviction in any manner— for cases were not unfrequent of deserters making effectual escape, and eluding the authorities of the law till after the war was over, and all interest and effort, and all means too, for their arrest and trial had subsided and passed away. There is a class of cases, one of which is cited Hulen v. Reilly, 53 Penn., 112, to the effect that in order to visit a forfeiture of the constitutional right and privilege to vote, upon a person by reason of being a deserter, the fact of desertion must b$ established by the. adjudication of a court of competent jurisdiction, and that an election board is not such court.

The present is a very different case. As before suggested, in this case the plaintiff claims under a special statute, and a special vote of the town. The defense is, that upon the facts shown, he is, by the terms of the statute, precluded from maintaining by action the claim he makes. The court in which the plaintiff asserts his claim has ample jurisdiction to entertain the defense and adjudicate it under the law appertaining to the subject ifpon the original evidence and facts proved thereby bearing upon the question whether the plaintiff had deserted the service. In other words, the common law courts of this state have original and plenary jurisdiction of the question of desertion, when raised in defense to such a suit as this.

The majority of the court feel great confidence in the ■ correctness of the result at which they have arrived, and do not disguise the comfort they feel in being able, upon plain and solid principles of the law, to do something, though it be in seemingly inadequate measure, in the direction of legal justice and moral decency as betweén the parties to this suit.