Crowell v. Hopkinton

45 N.H. 9

Opinion

Bell, C. J.

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.

Judgment on the verdict.