Henry H. Crowell v. Hopkinton, 45 N.H. 9 (1863) - Opinion

The case was tried by the court, who held that the evidence of the President’s call was sufficient, and the proceedings of the town were sufficient, to which the defendant excepted. contended that by the act of June Session, 1862, sec. 3, it is provided, that "the several towns and cities, at any legal meeting, may raise money and appropriate the same to encourage voluntary enlistments.” Under this provision only could the town of Hopkinton act in the passage of the vote here in question. But the raising and appropriation of money for the payment of a bounty to those who have already received the full consideration promised by the State, or the United States, for their previous enlistment, can in no sense be considered as raising, or appropriating money " to encourage voluntary enlistments,” within the terms or meaning of the act; and the payment of money to such parties, however praiseworthy and generous it may be, is a mere gift and gratuity without consideration, and without authority in law. Though a portion of the money voted, might, under proper votes, be properly applied to pay bounties to encourage future enlistments, yet as the vote for that purpose, and for the payment of bounties to those who had already enlisted, were parts of the same measure, which was adopted as an entire measure, and might not otherwise have been adopted, Pike v. Middleton, 12 N. H. 278, the whole vote must be regarded as illegal.

The court found a verdict for the plaintiff. The defendant moves for a new trial on these, and other grounds not deemed material to be reported.

George, Foster & Sanborn, for the defendants,

Fowler & Chandler, for the plaintiff,

contended that it was competent for the town, in their discretion, to encourage enlistments in any way they deemed most likely to be successful, and, if in their judgment that could be best done by giving bounties to those who had already enlisted, there was nothing in the language or spirit of the act, prohibiting them from so doing.

If the town could not rightfully bind themselves to pay a bounty to those who had already enlisted, their attempted action in that direction, did not invalidate their vote to pay a bounty to those who should enlist. There is no necessary and inseparable connection between the town’s action as to past enlistments, and that as to future volunteers. The language of the vote, in relation to those who had enlisted, may be rejected as surplusage. That portion relating to future volunteers may be readily separated from the rest. The vote of the town, if holden in part illegal, is like a statute in part unconstitutional, in which case the unconstitutional part alone is void, unless so inseparable from the other that the court can see that the Legislature could not have adopted one part without the other. Com. v. Clapp, 5 Gray 97; Com. v. Hutchings, 5 Gray 482; Com. v. Pomroy, 5 Gray 486, note; Wellington, pet. 16 Pick. 95; Fisher v. McGim, 1 Gray 1; Warren v. Charleston, 2 Gray 84; Railroad v. State, 29 Ala. 578; State v. Perry Co., 5 Ohio, 497; People v. Hill, 7 Cal. 97; McCulloch v. State, 11 Ind. 424; Meshmier v. State, 11 Ind. 482; Campbell v. Union Bank, 6 How. (Miss.) 625; State v. Copeland, 3 R. I. 33; or like the report of Road Commissioners laying out a highway, which may be rejected in part, where they have exceeded their authority, and accepted for the residue; Pierce v. Somersworth, 10 N. H. 369; Patten’s Pet. 16 N. H. 277; or like the award of referees, which may be rejected so far as beyond the submission, and enforced so far as within it; McBride v. Hogan, 1 Wend. 326; Clement v. Durgin, 1 Greenl. 300; Gordon v. Tucker, 6 Greenl. 247; Cromwell v. Owings, 6 Har. & J. 10; Peters v. Pierce, 8 Mass. 399; Dickey v. Sleeper, 13 Mass. 244; Skillings v. Cooledge, 14 Mass. 43; Cox v. Jagger, 2 Cow. 638; Bacon v. Wilbur, 1 Cow. 17; Cotton v. McTavish, 10 G. & J. 192; Gibson v. Powell, 2 Sm. & M. 712; Merrill v. Gardner, 40 Me. 232; Strong v. Strong, 9 Cush. 563; Chase v. Strain, 15 N. H. 539; Tracy v. Herrick, 25 N. H. 381; or like a by law consisting of several distinct parts, in which case, though some may be void, the rest are as valid as if the former had been omitted; 2 Kyd Corp. 155; Ang. & Am. Corp. 301, sec. 6; Fazakerly v. Wiltshire, 1 Stra. 469, per Pratt, C. J., & Powys, J; S.C. 11 Mod. 353; Harris v. Wakeman, Sayer 256; Lee v. Wallis, 1 Keny. Ca. 295; Rex v. Coopers’ Co., 7 T. R. 549; Rex v. Feversham, 8 T. R. 356; Rogers v. Jones, 1 Wend. 237. The principle is too well established and too familiar to need the citation of authorities, that where anybody, legislative, municipal, or corporate, any tribunal, or agent is clothed with limited powers, an attempt to act beyond them does not vitiate legitimate action, witliin the scope of their authority, provided such unauthorized action is separable, and can be readily distinguished from that which is authorized and valid. This principle embraces the case here.

It forms no part of the ordinary duties of towns to encourage the enlistment of soldiers by bounties, or otherwise. They may be specially authorized by statute, perhaps, to raise money by tax or loan, and to apply it to such purposes, or they may be required to perform duties of that kind, but it was long since decided here before the commencement of our Reports, that they could not do so by virtue of their general powers, and it was so held in Massachusetts, in Stetson v. Hempton, 13 Mass. 272. In Gove v. Epping, 41 N. H. 545, it was held that “votes to raise or pay money for purposes other than those prescribed by law are void, and towns cannot be compelled, and generally will not be permitted, to carry such votes into effect.” The power of the town to raise and appropriate money for the purpose of encouraging enlistments, is derived from the statute relied upon in this case, and is limited to the cases prescribed in it. That statute, 1862, ch. 2580, sec. 3, page2578,provides that "the several towns and cities, at any legal meeting, may raise money, and appropriate the same, to encourage voluntary enlistments.” It is broad and general in its terms, and is to receive a reasonable construction, giving to all its terms their usual and natural signification. No doubt is suggested as to any of these, except the phrase “to encourage enlistments.” As to this it is said, that it was competent for a town, in their discretion, to encourage such enlistments, in any way they deem most likely to be successful and beneficial. If, in them judgment, such enlistments were most likely to be promoted by giving bounties to those who had already enlisted, nothing in the language or spirit of the act prohibited it. But we think it would not be enough to sustain the proceedings of a town, that in their judgment the measures adopted were calculated to promote enlistments. They must tend to produce that effect in the judgment of the court which is to pass upon the validity of them acts. It is not the question, what is prohibited, but what does the statute authorize. The power given is to encourage voluntary enlistments. If it had been the intention of the legislature to authorize donations to those who had already enlisted, no one would suppose that the words of the act were either suitable or sufficient for that purpose, and explicit terms would have been used. In our view, the payment of money to men already in the service was in no way calculated to encourage enlistments, and the vote of the town, so far as it proposed to give such bounties, -was unauthorized and void.

The declaration alleges and relies upon so much of the vote of the town as proposes to pay a bounty of §200 to those who should enlist, &c. So much of the vote, if it stood alone, is not objected to, and it seems to us well authorized by the statute, and by the article in the warrant for the meeting. But it is objected that, as the vote is to pay all who will enlist, or have enlisted, since the first day of August, to fill up old regiments, §200, embracing thus in one vote the legal and illegal offer, it is void for the whole. But this seems to us contrary to all sound rules of interpretation. Where an act is invalid and void, because it is prohibited by law or statute, as an offense, or because it is fraudulent, or in violation of good morals, or of public policy, a contract to do such act will be wholly void, though there may be parts of the agreement which, if they stood alone, would be free from objection. Perhaps even in such cases, where the agreement, or instrument containing it, is not declared by statute to be absolutely void, the rule may be, as some contend, that, if one upon good consideration promises to do two things, one legal and the other illegal, he shall be held to do that which is legal, unless the two are so mingled and bound together that they cannot be separated. 1 Pars. Cont. 380; Norton v. Simmes, Hob. 12; 14 H, 8, 25; Brooks’ Ab. 326; Taits 37; Pigot’s case, 11 Co. 27; Newman v. Newman, 4 M. & S. 70; Curtis v. Leavitt, 15 N. Y. (1 Smith) 14, 96. But there is a large class of cases where the acts of parties and their contracts are void, because they are acts done by a party without authority, or they contravene some maxim of the law, or rule regulating the rights of persons or property; such are contracts by insane persons, infants, married women, by attorneys, executors, guardians, in cases beyond them authority, or by corporations to do things extra vires. In all these cases, the other contracting party, being capable, is bound by his contract, and in the latter classes, the parties who exceed their powers, are bound to perform all they were capable of legally contracting for, though the rest of the contract is void if they admit of separation. Bank of Australasia v. Bank of Australia, 12 Jur. 189; S. C. 6 E. F. Moore 152; 6 Har. Dig. 137.

In the present case, the objection is simply that the powers of the town are limited, and the vote unauthorized, but the parts of the vote which are open to this objection are readily distinguishable, and the vote is therefore invalid only so far as there was a defect of power.

If the question were of the power of the selectmen to raise money by tax or loan, under a vote to raise a given sum for all the purposes of the vote, there might be a just doubt, but the town have it in their power at any time to pass such votes to raise money as should be clearly within the law.

Objection is made to the sufficiency of the authentication of.the President’s letter to the Governor, and of the letter as evidence of the President’s call for 300,000 men. The laws of the United States provide for the mode of authenticating copies of the records and papers in the public offices of the National Government. By the Act of Congress of Sept. 15, 1789, the Department of Foreign Affairs, since called the Department of State, was established, and by section 7 of the last act, the Secretary was authorized to cause a seal of the office to be made, &c., and all copies of records and papers in the said office authenticated under the said seal, are made evidence equally as the original record or paper. And by the act of February 22, 1849, entitled “An act for authenticating certain records,” it is provided that all books, papers, documents and records, in the War, Navy, Treasury and Post Office Departments, and the Attorney General’s Office, shall be copied and certified under seal, in the same manner as those in the State Department may now by law be, and with the same force and effect. Under these statutes no doubt can be reasonably entertained that the papers produced are copies duly authenticated of papers on file, or record, in the Department of War, and equally evidence as the original record or paper. It is obvious that the instruments thus laid before us are veiy informal. Instead of the usual form of acts of State, authenticated by the national seal, and the attestation of the Secretary of State, they are in the form of letters to the Governors of the States, giving them notice of what the President has decided to do. They do not purport to be the decrees, orders, or proclamations, by which the thing is done. But we have no constitutional or statute provision directing in what manner the decrees or orders of the President shall be authenticated, or published. He is controlled in this respect only by his own sense of propriety, and the rights of the citizen must not be impaired by any departure from customary forms. As it is admitted, there is no other evidence of the call for men here in question, we feel bound to take notice of it as a public act of the Government; and this exception is overruled.