Bucklin v. Town of Sudbury , 43 Vt. 700 ( 1871 )

The opinion of the court was delivered by

Barrett, J.

In the variety of this class of cases, however far the court may seem to have gone in maintaining claims for bounty upon the very ground and point of the respective decisions, or however wide the range of remark by judges in discoursing upon the subject as involved in or suggested by the case then in hand, the idea has been expressly or impliedly maintained, that the parly claiming a bounty is’not entitled to recover, unless, in some way, it is established that he comes within the scope and meaning of the vote by which it is offered. Assuming, for the moment, that the learned judge who drew up the printed opinion in Jackman v. New Haven, 42 Vt., 591, in all the language of that opinion, embodied accurately only views in which he and his two associates concurred in deciding the case, that idea is distinctly expressed by him thus : “ It is plain from the language of the vote that the town did not intend to restrict payment of a bounty to such only as should, by the procurement or assent of the selectmen, enlist and be mustered in this state, but did intend to pay bounty to each man who should comply with the terms of the vote, &c. * * * * This brought thp plaintiff strictly within th§ terms of the vote,” &c. Upon this idea that judgment was based. While I concurred in that idea, I failed to see that the plaintiff so brought himself within the vote as to render the town liable to him for the bounty. In the early and leading case of Gale v. Jamaica, 39 Vt., that idea is the comprehensive bottom ground of the decision. And, indeed, in this respect there is not an exceptional case in the books. The two leading points of debate in this line of bounty cases have been, whether the offer was an open one, so that a person coming within its terms was entitled under it, without anything further by way of bargain being necessary between the parties ; and whether the party claiming came within the offer, whatever might be its character.

In the present case the terms of the vote are specific, proffering a bounty “ to each of such persons as shall enlist before the 5th day of January, 1864, and be accepted on the quota of this town under the recent proclamation of the President for 300,000 men.” The plaintiff re-enlisted in the field, December 15, 1863, and was mustered in the next day to the credit of said town, but he was not reckoned in the adjutant general’s office on that quota. Eight men enlisted at home between December 3d and 23d inclusive, and five of them were mustered in after December 16th and prior to January 5th, and they were reckoned at the adjutant general’s office as filling said quota. The muster-in roll of the plaintiff was not forwarded by the officers in the field to the adjutant general’s office till after the other credits had there been reckoned and entered as filling said quota. The plaintiff was reckoned to the credit of the town upon a subsequent quota.

The decisive question is, was the plaintiff accepted on the quota named in the vote, within the meaning of that vote ?

Town quotas were unknown to the laws of Congress, as well as to the President in making his calls for men, and to the war department at Washington in apportioning among the loyal states the whole number of men called for. The quotas of states alone were there regarded ; and only the duty of the state, or of the citizens of the state subject to military service, was sought to be ascertained and enforced. The distributing of quotas to towns for the purposes of the proposed drafts, and the providing for avoiding such drafts by the enlistment of volunteers by towns, was altogether a matter of state regulation—was done under state laws and by state officers. Congress and the military department of the general government acceded to and adopted what was thus done within the state and by the state authorities, in view that it answered and operated in performance of what was required of the state under the call of the President. This fully appears by circular No. 1, Adjutant General’s Report, 1864, p. 122, dated November 2, 1863, containing an order from Provost Marshal Gen. Fry to Gen. Pitcher, October 28, 1863. Following this,'in said circular of the adjutant general, it is said, “ that each town will be credited with all the men furnished by it towards the several quotas thus assigned,” (by general order No. 2).

In Gale v. Jamaica, Ch. J. Pierpojnt has embodied a comprehensive and correct statement of the matter as follows : “ Under this proclamation (for 300,000 men) the governor of this state, through the adjutant general, ascertained the number of men which each town was required to raise according to the number of men therein subject to military duty, to make up the proportion of the 300,000 which the state was called on to furnish, and issued general order No. “2, therein specifying the number which each town was to raise to fill their quota under said call, &c. * * * * * * The number assigned to Jamaica as their quota of the 300,000 was 28 men,” &c. This understanding of the matter has been held and acted upon by all concerned, in every bounty case that has come into this court. In the case before us the plaintiff made up his case by proofs drawn from the office of the adjutant general, showing the quota of the town as there made out, and nowhere else, and the standing of the town with reference to that quota, upon which he claims that he was or should have been accepted under the vote, and so entitled to the bounty. Everything appertaining to the apportioning of quotas among the towns, and of fixing the number to be furnished by the defendant, as one of which the plaintiff claims to be counted, all rests in, and results from, the official action and records and documents of that office. The towns, iu voting bounties for men to fill their quotas, have neither known nor had in mind anything, as constituting or showing their quotas, or their standing in reference to such quotas, 'except such action, records and documents. So that it must be held in this case that, in the resolution offering the bounty in question, the town had reference to its duty and liability in regard to such quota, as fixed and shown by such official action, records and documents of the adjutant general’s office. That office, under the laws of the state, and to answer the duty of the state, without having it enforced by a draft, prescribed rules and regulations, and issued official orders and circulars, in pursuance of which the respective towns might, under the same laws, answer the duties respectively charged upon them in that behalf. Whether a town had discharged such duty depended on whether it had done what was required and prescribed under said laws, conform-ably to said rules, regulations, circulars and orders. If it had so done, then it was no further chargeable to the state or nation in that behalf. And this matter was to be administered by that office, so far as the duty of the town was concerned in reference to the prescribed quotas. The defendant town furnished certain men, conformably to said rules, regulations, orders and circulars, to the number assigned by that office as its quota under the said call, and they were accepted, reckoned and applied by that office as filling said quota, and in fact filled it.

The question now is, was the plaintiff entitled to be accepted and counted on said quota under said vote ?

It is seen that the muster-in roll does not specify any quota, but only shows that the soldier is enlisted and mustered in to the credit of the town named. It is seen also that the order to Gen. Pitcher of October 28, 1863, above referred to, makes no rule, order or direction as to the particular quota on which a soldier mustered in is to be reckoned by way of credit,—but only that he may be credited to some particular locality. The same is true of the order of Provost Marshal Gen. Fry, promulgated by Adj’t Gen. Washburn in circular No. 4, January 8, 1864 and in respect to that, it will be noticed that in order to entitle the credit to be made to a particular locality, “ the muster-in rolls must show the facts, and will be the basis for awarding the credits.” So that nothing that is required by or done under said last named orders, applies the mustered man on any quota, or accepts him on any quota.

He is accepted into the service by being mustered in, and is rendered the subject of a credit to the town named; but the awarding of the credit is not attempted by the act of mustering in. The assignment of him by way of credit, so as to count to the town on a particular quota, his being accepted or allowed on such quota, is altogether a matter to be regulated and carried into effect through the instrumentality of the state military department, centered in, and consummating results by, the action of the adjutant general’s office.

It is shown by the testimony of Gen. Peck, assistant adjutant general, that the credit of men to towns was made at that office on the muster-in rolls being received. The same thing is in substance shown by said circular No. 4, to have been true before, as well as after the date of said circular. And it may further be remarked that such must necessarily have been the case. For no credit was entitled to bo given under any law, rule, order or usage of either the United States, or the state military department, until the soldier had been mustered in; and that act was done by some officer under the war department of the United States. The fact of such muster-in could not be authentically known at the office of our adjutant general, till officially communicated by the mustering-in department. So, of course the credit could not be given to any town nor be accounted on any particular quota, till the muster-in roll had been received at the office of the adjutant general, as “ the basis of awarding the credit.”

In the present case, the full number of the defendant’s quota had been mustered in to the credit of the town, and upon due report of the fact to the adjutant general, that credit had been entered and applied upon that quota, before any certification of the plaintiff’s muster-in was forwarded to or received at that office. Those eight men thus applied had been accepted and had filled the quota in full discharge of the duty of the town in respect thereto. Of course the adjutant general did not,- as he could not, accept the plaintiff on that quota.

When the quota had been thus filled, the plaintiff had no ground for claiming, as against the town under the vote in question, that he was entitled to be accepted on the quota. He is chargeable with a knowledge of the vote so far as it may be necessary in order to bring himself within it; and he was as much bound to know what was requisite in order to his being accepted, in the sense of the vote, as was the town ; and, of course, in enlisting and being mustered in to the credit of the town, if he would have the bounty under the vote, he assumed the burden and hazard of being accepted on that quota in the only way'in which he could be accepted, and that burden and hazard would continue till he should be thus accepted, or should be prevented from so doing by the-fault of the town, or of parties for whose fault the town would be responsible. No such fault is imputed in this case.

The question is not before us, whether the plaintiff would be entitled to recover, if the muster-in roll of the plaintiff had been in fact received at the adjutant general’s office before that of the men, or some of them, who were reckoned on that quota, and, by mistake or caprice in that office, the plaintiff had not been reckoned, when, according to the rules and usages of the office in that. respect, he was entitled to be. So no opinion is intimated on such question.

What is thus held and said in the case before us does not seem to contravene the holding of the court upon the controlling and decisive questions in most of the cases that have been before us, bearing more or less analogy to this. In Gale v. Jamaica, supra, it appeared that notice of the plaintiff’s muster-in had been sent to the adjutant general’s office according to the regulations in that respect, and that he was in fact credited on the quota named in the vote some days before the quota was actually filled. That was regarded as the decisive fact, and the decision is entirely consonant with the one we now make. The residue of the case is as to how the parties should be affected, under the circumstances, by the fact that the town did not receive notice in fact of the plaintiff’s application on the quota till after the selectmen had procured other men to fill the same quota.

In Steinburg v. Eden, 41 Vt., the selectmen were notified by' the adjutant general, that the plaintiff had been credited to said town, under the call named in the vote, six days before the muster-in of the two other men, one of whom the town claimed should be reckoned on the quota instead of the plaintiff. This was the point on which the decision rested ; and what we now hold is in accordance with what was decided in that case.

In Johnson v. Newfane, 40 Vt., it is stated that the plaintiff was mustered in and applied on the quota, and the town treated him as reckoned to its credit in filling the quota. Nothing is said as to the mode in which that application of credit was made, but, as it was in fact made, it'is assumed that it was made at the office of the adjutant general, where alone it could be done in satisfaction of quotas. There was no controversy as to the right of the plaintiff, as against some other man, to be counted on that quota, for the town so counted him. Having applied on the quota, he had a judgment for the bounty; which is in harmony with our decision in this case.

In Seymour v. Marlboro, 40 Vt., the plaintiff re-enlisted in the field, and was mustered in to the credit of the town, and, on the 1st day of January, 1864, he notified the selectmen that he had re-enlisted to apply on the required quota, and had been mustered in to their credit, and claimed the bounty. On the 4th of January General Pitcher inquired of the adjutant general, whether the plaintiff could be applied on said quota, and was informed that he could not, and this was communicated to the plaintiff and the selectmen. Thereupon the quota was filled with other men and the plaintiff was not applied on it. It was decided that he was not entitled to the bounty voted for such as should enlist to fill that quota. That decision is concurrent with this. That case is very instructive in several respects. Some of the facts in the statement are worthy of special attention, as showing that a credit to a town, made when the soldier was mustered in, did not apply him on any quota, even though the soldier designated the quota which he enlisted on ; also that the provost marshal had nothing to do with the applying of men on quotas; and that it was a matter wholly with the state authorities, and was done by the adjutant general. It is further apparent that,on said 4th of January, the adjutant general understood that men re-enlisted in the field, as the plaintiff was, were not applicable under the pending call of October 17, 1863. All of these facts seem to have had judicial recognition in the decision of that case ; and one fact seems to have special prominence in that respect, as shown by a passage in the opinion, viz: “ The plaintiff on' reenlisting, having been credited to the town, -it is not apparent to us why he could not have been thus counted or applied. He was not, and the town filled the quota with other men.” This would seem to indicate a marked recognition of the exclusive jurisdiction of the adjutant general in the matter of applying credits in the filling of quotas.. The briefs of the counsel in that case will be found serviceable by such as would fully appreciate the scope and force of that decision, and the terse, comprehensive and significant language of the printed opinion.

There is a class of cases in which the vote of bounty did not require the soldier to be accepted or applied on any quota, but only that he should enlist and be mustered in under some call, or to save a draft. There is another class that turned upon the fact that the soldier enlisted by the procurement of the selectmen by special contract. There are some cases standing respectively upon their own peculiar facts. The cases thus indicated are so distinguishable from the one under consideration, in the ground and point on which the decisions rested, as not to be the subjects of conflict between them and this»

Perhaps the case of Jackman v. New Haven should be excepted from this remark. However that may be, the decision of the present case is made upon the concurring opinion of five members of the court, with that case as reported open before them.

The judgment of the county court is reversed, and cause remanded.

Peck, J., would affirm the judgment. Wheeler, J., having tried the case in the county court, did not hear it in this court.