46 N.H. 139 | N.H. | 1865
In Crowell v. Hopkinton, 45 N. H. 9, this court gave a construction to Section 3 of Chap. 2580, Pamphlet Laws, passed in 1862, purporting to confer power upon cities and towns in this State to raise and appropriate money to encourage voluntary enlistments. We understand that, in that case, it was settled:
1. That towns have no authority, as part of their ordinary powers, to raise money to pay bounties to volunteers in the. military service of the United States.
It will be understood, that, prior to the votes of the town of Dan-bury referred to in this case, the Government had called for 300,000 troops to serve for three years, or during the war; and also from the militia of the United States, had called for the like number of men to serve for the term of nine months.
The case finds that, prior to the enlistment or mustering into service of the plaintiff, the quota of men assigned by law to said town of Dan-bury to serve for three years had been then more than filled, but the quota of what were called nine months men was not then filled. Then, on the 28th day of October, 1862, the quota of the three years being-full, there was no vacancy to be supplied by the town of Danbury, and it appears to us, the power of the town to tax their citizens to pay bounties to more men enlisted into the three years service had been exhausted, because when plaintiff enlisted, the town had already discharged her whole legal duty in this respect. The town having already voluntarily paid their money to a surplus of men for a three years service, does not furnish sufficient or satisfactory reasons why it should continue to do this against their dissent. At the time of the enlistment by plaintiff there then was apparently but one avenue, through and by which, he could receive or entitle himself to the benefits of the bounty offered by the defendant town.
To meet the requirements of the law then in force, the -town needed a larger number of nine months men to be employed under the authority of the United States wherever directed. The case finds that plaintiff first enlisted into the military service for the term of nine months, and on the same day was mustered into service, as an assistant surgeon, into the Second Regiment of N. H. Volunteers, for the term of three years, and that he immediately entered into and did service in the latter-capacity. As we understand the term enlistment, it implies an enrollment or engagement to serve according- to the requirements prescribed by law, and for a specific time, in the military service of the United States. The recruiting officer receives the assent of the party enlisting-to perform his engagements agreeably to the usage of the service in which he agrees to serve. The enlistment is but a contract begun. It is a preliminary to the final examination of the soldier, and his acceptance by such other officers as are assigned to perform the duty of mustering into service. The mustering-in officers have the power to reject or to accept the applicant, and the contract to serve for any requisite period becomes complete and binding on both sides, when the soldier or officer is finally examined, accepted, enrolled and mustered into service.
Such we understand to have been, substantially, the law or practice regulating enlistments, &c., in October, 1862. To entitle the plaintiff to receive the town bounty .incident to the nine months service, he must have been in truth and in fact enrolled into the military service in such a manner and to such an extent as to justify the enrolling officers to re
We have not had access to the records, containing -the engagements or enlistments of October 28th, 1862. Doubtless the engagement or enlistment of the plaintiff here, to entitle him to a bounty, must be understood as a bona fide contract to serve in some capacity for the stipulated term of nine months. The enlistment must not be colorable or for the mere pretence of obtaining a bounty from the town. If, in good faith, the plaintiff, in the forenoon of October 28th, 1862, enlisted as a nine months volunteer, and subsequently was promoted to a higher rank and longer service by the authorities competent to confer rank, or .was duly and legally transferred, in conformity to the usual requirements in such cases, to another and longer service, we are not prepared to say but that there was a time when the plaintiff might with propriety be considered as belonging to such nine months service, so as to entitle him to the town bounty.
We find that the plaintiff was in fact mustered into a three years service on the same clay of his enlistment. For the purpose of giving a construction to a contract, and gathering the true intent of the parties, it is frequently safe to look at the acts done under it. Hence, where a party in the first instance makes an engagement for a shorter term of service, and about the same time, or on the same day, actually commences, or enters upon, the duty of discharging the obligations of a longer period of service, the legal presumption would naturally be that the obligations of the shorter term of service had been abandoned by mutual consent, or commuted for those of the longer term. Generally, the law will properly regard the contract, which has been actually executed by the parties, as the one originally made and intended by the parties to it. There is in this case no good reason to presume that the Government or its officers were not willing to exchange the shorter term of service for the longer. Hence, upon this view of the circumstances of the case, we think it may be fairly inferred, that, by the mutual assent of the parties in interest, the contract implied by the first enlistment here was subsequently merged into the other contract to serve for the longer period of three years ; because the case finds that the plaintiff undertook actually to discharge the duties of the three ears service, and did not enter upon the execution of the nine months service. What the plaintiff did, therefore, forms the best interpretation of his own true meaning and intent. And the plaintiff being competent to make his own contracts, is presumed to have duly considered the advantages, and all the legitimate consequences incident to them. _ Wo are aware that these views may be materially modified, or wholly changed, when all the facts
Upon the remaining point suggested in the case, that the plaintiff: should not receive his town bounty for the reason, that he is found by the appointing power, worthy to receive the honor’s and emoluments of a commission, we think the objection cannot prevail, because such a discrimination would be unjust in itself, and not within the legitimate scope or meaning of the vote of the town, or the act which justifies the vote.
Agreeably to the original case, it is -now discharged for further proceedings before the jury.
