Howes v. Inhabitants of Middleborough

Gbay, J.

We are of opinion that the vote passed by the town of Middleborough near the beginning of the war of the rebellion, to guarantee the payment, to each member of che company of volunteers to be raised in the town, of “ twenty-six dollars per month while in service,” was intended to apply only to the period of their military service under the authority of the United States. Any doubt as to the true construction of this vote in this respect is removed by referring to the votes passed at the same meeting (which have been fully carried into effect) “ to furnish each citizen volunteer soldier with a uniform ” and to pay him while drill ing, and that “ when the company of volunteer citizens of this town are called into service, they shall have one month’s pay in advance.”

Until August 24, 1861, the members of that company, even after their organization under the orders of the governor, and while they were in the camp of rendezvous at Readville, were still only part of the militia of the Commonwealth; for, having been neither called out by the President as militia, nor mustered into the service of the United States as soldiers, they were in no sense in the national military service. Sts. 1861, cc. 49, 219. Houston v. Moore, 5 Wheat. 1. Martin v. Mott, 12 Wheat. 19. Tyler v. Pomeroy, 8 Allen, 480. .As the date of their muster into that service was more than three months after the St. of 1861, e. 222, was passed and took effect, the vote was in excess of any lawful authority of the town, and this action cannot be maintained. Grover v. Pembroke, 11 Allen, 88. Curtis v. Pembroke, Ib. 92.

It may be added that the plaintiff and his associates do not appear to have considered themselves as in the service, within the meaning of these votes, before they had entered the military service of the United States; for during the period between J une 30 and the day of their muster into that service, they received pay from the Commonwealth, as authorized by the St. of 1861, c. 218j and they did not claim from the town the month’s advance pay, promised by its last vote, until they had taken a formal oath of allegiance to the United States, which was probably, though erroneously, supposed to constitute a beginning of that service.

There is nothing in the cases on which the plaintiff relies which can control our judgment in the present case. In Grover v. Pembroke, 11 Allen, 88, the vote sued on expressly covered the time while the plaintiff was “ in the military service of the state of Massachusetts.” In James v. Scituate, Ib. 93, the question principally considered was whether a man who, after the passage of a vote “to pay to each volunteer soldier raised, in this town and being an-inhabitant therein, and mustered into the service of the United States for the defence of the government,” enlisted in a company of volunteer militia, and then, upon being informed that it could not be received as a company, voluntarily enlisted and was mustered into a regiment of volunteers in the United States service, was within the meaning of the vote; and it was held that he was. The including, in computing the amount of the judgment in that case, of the period of twenty-five days which elapsed between the original enlistment into the militia and the muster into the service of the United States, was inadvertent and inaccurate; for by the very terms of the vote the pay from the town was not to begin until the soldier was “ mustered into the service of the United States.”

Judgment for the defendants.