O'Connor v. Town of Waterbury

37 A. 499, 69 Conn. 206, 1897 Conn. LEXIS 48

Opinion

Andrews, O. J.

It is clear that the plaintiff is not entitled to recover in this action by reason of the Act of 1895

Footnotes

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*. That Act is limited to enlisted men. The plaintiff was not an enlisted man. The legislature might be very willing to extend a favor to one who entered the army or navy voluntarily, and be very unwilling to extend a like favor to one wbo entered the army or navy only because he was dragged there by force. Besides, the complaint is not brought on that statute, according to the rule laid down in 1 Swift’s Dig. (side pages) 585, 735. It' is immaterial, therefore, so far as this case is concerned, to inquire whether or not the said statute is constitutional.

The latest date at which the plaintiff’s cause of action can be said to have accrued, was November 5th, 1864, when he was mustered into service. This suit was commenced on January 2d, 1897, a period of more than thirty-two years after the right of action existed. Chibs' Justice Hosmer said, in Lynde v. Denison, 3 Conn. 387, 391: “ A forbearance for the period of twenty years, when unexplained, is a fact, from which payment of a sum demanded, ought to be presumed.” He cites Phillips’ Evidence, 114, and Bailey v. Jackson, 16 Johns. Rep. 210. This rule has been approved in Chapman v. Loomis, 36 Conn. 459, and in Fanton v. Middlebrook, 50 id. 44. The plaintiff argues that advantage of the statute of limitations cannot be taken by demurrer. He states, and rightly, that the objection to this mode of pleading is that it raises no issue. It deprives the plaintiff of an opportunity to reply a new promise, or an acknowledgment. The complaint in this ease, as if expecting the statute of limitations to be set up in answer, seeks to reply to it in advance by alleging the new promise contained in the vote of the defendant town of October 5th, 1896. It is to the whole complaint that the demurrer here is interposed.

The exact question presented by the pleadings in the case can best be understood by separating the averments. It appears on the face of the complaint, that between the date when the cause of action accrued and the commencement of the action, a period of time had elapsed from which the payment of the plaintiff’s claim would be presumed. Let us suppose the defendant to have made an answer alleging that such period of time had intervened; and then that the plaintiff had, by way of reply, set out the vote of October 5th, 1896, and to that the defendant had demurred. The de murrer in the case presents precisely the same question; that is to say: Is the vote of October 5th such a new promise or acknowledgment as removes the bar of the statute of iimitations ? The complaint purports to set out that vote in its exact words : “ That the plaintiff’s claim for bounty due tci him from the town be allowed with interest.” As this action was not commenced till January 2d, 1897, how can the Superior Court or this court know that by the word “ plaintiff,” in the vote of the town, John O’Connor was intended?

We do not, however, rely on this. Towns have no authority to subject their citizens to taxation, except for purposes clearly authorized by law. If the vote just quoted is a new promise or acknowledgment sufficient to bind the town, then the citizens of that town must be taxed to pay the amount of the claim made by the plaintiff. And the same infirmities would attend the power of the town to subject its citizens to taxation by such a vote, as attended its power to pass the original bounty votes. As those votes would not have been binding on the town except for the special authority conferred by the legislature on the town to pass them, so this new promise does not bind the town for the reason that there has been no authority given by the legislature to the town to make it. Booth v. Woodbury, 32 Conn. 118; State ex rel. Coe v. Fyler, 48 id. 145; Turney v. Bridgeport, 55 id. 412; White v. Stamford, 37 id. 578.

The District Court is advised that the complaint is insufficient, and to sustain the demurrer.

In this opinion the other judges concurred.

The 1st and 2d sections of Chap. 81S of Ike Public Acts of 1895, are as follows: “Section 1. Any person who enlisted or re-enlisted in the army or navy of the United States for the suppression of the rebellion, and who was honorably discharged from service, and who thereby became entitled to any bounty voted by any town and has not heretofore received the same, may recover from such town the amount of any such bounty in an action upon this statute. Any such person shall be entitled to judgment against a town upon proof from the records of the adjutant-general’s office by a certificate duly attested by the adjutant-general or his assistant, that he was duly enlisted and credited to such town and that such a vote has been passed by the town, and where a town has been divided or a portion of a town has been set off to another town since such enlistment, the claim shall be against the town now containing the territory within which such soldier or sailor resided at the time of his enlistment.

“ Sec. 2. The statute of limitations shall not be pleaded by the defendant in any such action.”