School District v. Learn

The opinion of the court was delivered, by

Strong, J.

Of the several assignments of error in this record but one requires particular attention. Our opinion of that takes away all importance from the others. At the trial there were really no disputed facts, and the court instructed the jury to return a verdict for the plaintiff, reserving the general question whether, under all the evidence in the case, he was entitled to recover.

As the action was founded. upon contract, if there was no evidence to show the existence of any such' contract as that averred in the declaration, the positive direction given to the jury was erroneous, and there was also error in giving judgment for the plaintiff upon the reserved question. The primal question, therefore, is, what proof was exhibited, if any, that there was a contract between the parties ? It appeared that the plaintiff below was a citizen of the school district of Mifflin township in 1864, when the last call of the President was made for 300,000 men to be mustered into the military service of the United States government. He was liable to draft in order to fill the quota off the district under that call.

On the 1st day of February 1865, he furnished as a substitute and had mustered into the service a recruit named John Shedd, who was duly credited to the quota of Mifflin township, ^and who continued in the service until he was regularly mustered out at the close of the war.

To this substitute the plaintiff paid a bounty of $1150. He thus became entitled to recover from the school district the same bounty which John Shedd would have been entitled to recover, had he, on the 1st day of February 1865, volunteered to enter the service on his own account, and been credited to the township, instead of entering as a substitute for the plaintiff. Such is the effect of the 3d section of the Act of Assembly of August 25th 1864, Pamph. L. 986. But that section imposes no obligation upon the township. It creates no new legal right. It simply transfers the right which a substitute may have to a local bounty, to the person who contracted with him to serve as a substitute, and who paid him a bounty for such service.

If, therefore, John Shedd would have had a legal claim upon the district, had he volunteered, when he did, on his own account, and not as a substitute for the plaintiff, that claim would be transferred by the act- to the plaintiff, and there may be a recovery in this action. What right then would John Shedd have had in the supposed case ? Manifestly none, unless there was an assumption by the district to pay him. The law did not make it the duty of the district to pay bounties or to contract to pay them. It merely authorized such payments and contracts to be made in certain cases, if the officers of the district chose to make them. There would be therefore in the case supposed, and there is in the present case, no implied promise to pay a bounty growing out of a mere legal obligation. Nor is there any express contract to be found in the facts, that public meetings were held in the township to promote filling the quota by volunteers, that commitfcees were ajopointed to obtain recruits and obtain donations to pay bounties, and that at one of these meetings some of the school directors were present, three in number, Avho, after consultation, reported to the meeting that a sum of money in the treasury should be used to fill the quota. Whether these meetings were held, and whether this report was made before the 1st of January 1865, does not appear. Whether they were or not, the school district could not and did not contract in that way with any one. All that remains which is thought to show any contract between the parties, all that is relied upon" by the plaintiff, is the resolution adopted by the school board, on the 3d of April 1865. It appears that there was in the treasury, at that time, the sum of about $4000, remaining after the payment of bounties to volunteers under a former call. On the 3d day of April, the school directors adopted the following resolution: “ Resolved, That all moneys now on hand be appropriated to volunteers, under the present call for 300,000 men, at the rate of $300 per man, until the money is all expended, the same to be checked out by O. H. P. Blackburn to the recruiting committee.” This resolution in itself amounts to no contract with anybody. The motive that induced its passage, the object sought to-be secured by it, plainly was the encouragement of volunteering, until the quota of the district under the new call should be filled, and thus a draft become unnecessary. It must, therefore, have been intended to operate prospectively alone. It was at most a proposition to those who, after its passage, might contemplate entering the service, encouraging them to do so, and binding on the district when accepted. It said to all able-bodied men: “ If you will voluntarily enter the military service of the United States, and be credited to this district on the last call, we will pay each of you $300, until the money in the treasury shall be exhausted.” Volunteering after the passage of the resolution may have been on the faith of it, volunteering before its passage could not have been. If the resolution amounts to a promise to pay those who had volunteered before its passage, as well as those who might enter the service thereafter, and be credited to the quota of the district, its effect, as a stimulus to voluntary enlistment, would have been greatly diminished, and it might have amounted to nothing. Had thirteen persons volunteered before April 3d 1865, no part of the fund in the treasury would have remained to invite volunteering after that day. Thus, the appropriation of the money would have done nothing toward relieving the district from the impending draft. Such a construction of the resolution is unreasonable. It shuts out of view the end sought to be obtained by it, and converts it into a mere donation in return for a past benefit. When the plaintiff put a substitute into the service, it was not an act done as a consideration for any undertaking of the district, nor was it an acceptance of any offer the district had made.

It is undoubtedly true that a volunteer, who entered the service on the 1st of February 1865, and was duly credited to the district, contributed as much to relieve the district from the draft as did any one who entered the service after that date. In justice he may have been equally deserving of a bounty. But the question now is, was there any contract to pay such a volunteer any bounty ? We are determining legal rights, not what may be equality of deservedness. And we are unable to discover that there was any legal liability of the school district to the plaintiff, arising either by implication of law or out of any contract. The instruction given to the jury, heretofore stated, and the judgment upon the reserved question, were therefore erroneous.

The judgment is reversed, and judgment is now given upon the reserved question for the defendants, non obstante veredicto.