35 Conn. 191 | Conn. | 1868
We are of opinion that the first objection interposed by the defendants in this case can not be sustained. The plaintiff was not in strictness “drafted” at the time the vote was passed. He had been enrolled, his name drawn by the board of enrollment, and he had been notified to appear at the rendezvous on a day subsequent to the passage of the vote. These were steps or stages in the proceeding, but other material things were required to be done before the proceeding as to him was complete, and he could be said in the language of the vote “to be drafted into the service.” It was further required that on appearing at the rendezvous he should be examined by the surgeon, upon whose report the board of enrollment were to act, and accept or reject him. The examination and report of the surgeon, and the action thereon and acceptance by the board of enrollment, were material steps to the completion of the draft in every case; for it was the purpose of the government in providing for such examination and acceptance to receive and hold able bodied men only, as well as furnish an opportunity to those who were drawn out to establish their claims to exemption. Until he was examined and accepted he could not in strictness be said to be drafted, and therefore was not then “ drafted into the service” within the fair intendment of the vote. We can not doubt that the vote was passed for the benefit of the plaintiff and
Nor is the second objection sustainable. As the draft in his case was not completed until after the passage of the vote, it was not as to him a mere gratuity if he acted on the faith of it, and the principles adopted in Usher v. Colchester, 33 Conn. R., 567, are not applicable to the case. And .we think that the payment was not discretionary with the selectmen, and that the plaintiff would be entitled to recover by force of the act of July 6th, 1864, and upon the principles adopted in Bartholomew v. Barwinton, 33 Conn. R., 408, if there were nothing more in the case.
But we are satisfied that the third objection of the defendants must prevail. The provision in the vote that the drafted person should be “ accepted by the board of examiners,” had reference, undoubtedly, to the question whether the conscript was liable to military duty or exempt, and a determination of that question by the board of enrollment. The town did not contemplate or intend the payment of money to those who were not liable to the draft and were discharged by the board of enrollment because they were found “unfit for service,” or to have a valid claim to exemption; but to those only who should be found subject to duty and accepted and held to service. The plaintiff therefore has not brought himself by the facts averred and found within the provisions of the vote. He should aver and prove that he was examined by the board of enrollment and accepted. We can not hold the town liable by force of the absolute statute of 1864, unless a compliance with every material condition of the vote is averred and proved.
It is urged by plaintiff’s counsel that such is not affair construction of the vote, because they say a conscript had no right to put in a substitute after he was examined and accepted. Such may have been the practice of the board of enrollment, but we do not so understand the law. The conscript was authorized to furnish an acceptable substitute, or pay $300, “ on or lefore the day fixed for his appearanceand by another section he was entitled to a certificate of exemption
The Superior Court must therefore be advised that if the plaintiff shall aver, and on further hearing prove, that he was examined by the board of enrollment, found subject to military duty and accepted, he can recover; but if not, then judgment should be rendered for the defendants.
In this opinion the other judges concurred.