Kittredge v. Town of Walden

| Vt. | Aug 15, 1867

The opinion of the court was delivered by

Barrett, J.

The plaintiff enlisted September 23d, 1863, in a new organization, third Vermont battery, light artillery, to the credit of Walden, but was not mustered in till January 1st, 1864. October 17lh, 1863, the President called for three hundred thousand men; of which the quota of Walden was fifteen men. Down to the 25th or 26th of December, 1863, enlistments to such new organization could not apply on that quota. At that time the order precluding such application was rescinded, and Walden was then lacking two men on that quota. While that order was in force the plaintiff had applied to and urged the selectmen to permit him to change his residence as to place of enlistment, so as to be credited to some other town. They refused to do so, and insisted on his continuing to the credit of Walden. He had an interview with them on the 25th or 26th of said December, after which, as the exceptions state, “ the plaintiff went back to Burlington, and on the 1st day of January, 1864, and while two men were lacking to fill the defendant’s quota of fifteen men, under the call of October 17th, 1863, the plaintiff was mustered in under that call to the credit of Walden.” On the 4th of December, 1863, the town had voted “ to pay each volunteer who should be mustered into the United States service, under the above named call, the sum of three hundred dollars.” The plaintiff in being thus mustered in fell exactly within the terms of that vote.

The only question then is, whether that vote was so in pursuance of the warning as to be valid? Article second of the warning was, “ to' see if the town will vote to raise money to pay bounties to such men as will enlist under the last call of the President for three hundred thousand men.” Article third was, “ to see what other action the town will take in relation to raising their quota of men under said call.” This warning gave notice that the subject of raising men tcf fill that quota was to be acted on, not in any defined and exclusive manner, but in such manner as should be judged best when met, and determined by the votes then to be given. The action of the town was within the scope of the warning, and it was such as the town, under the laws of the state, was authorized to take. Inasmuch as the plaintiff was mustered in on that call to the credit of the town by the co-operation of the selectmen who had full knowledge of all the facts, and were expressly told by the plaintiff that lie should insist on the pay voted as above, viz : three hundred dollars, in case they would not permit him to be mustered in to the credit of some other town, and he should be mustered in to the credit of that town, it seems to us that the town became bound both by said vote, and by the action of the selectmen under it, to pay the plaintiff that bounty.

The fact that other men, standing in the same position as the plaintiff, were mustered in to the credit of the town, more than enough to fill the quota, cannot derogate from the plaintiff’s right, he having practiced no fraud, and the selectmen having full knowledge of all the facts, and the plaintiff having no control of the mustering in of those other men. “ The plaintiff was mustered in under that call to the credit of Walden.”

Entertaining these views we have no occasion to discuss the case in any other aspect, or to decide any other questions.

The judgment is affirmed.