Inhabitants of Lunenburg v. Inhabitants of Shirley

• Decision Date: 12 April 1882
• Citation: Inhabitants of Lunenburg v. Inhabitants of Shirley, 132 Mass. 498 (Mass. 1882)
• Parties: Inhabitants of Lunenburg v. Inhabitants of Shirley
• Court: Supreme Judicial Court of Massachusetts

132 Mass. 498

Inhabitants of Lunenburg v. Inhabitants of Shirley

Supreme Court of Massachusetts

April 12, 1882

Argued October 7, 1881

Worcester.

Exceptions overruled.

W. S B. Hopkins, for the defendant.

G. A Torrey, for the plaintiff.

OPINION

Devens J.

By this action the plaintiff seeks to charge the defendant with sums expended for the support of the wife and children of Peter Smith, on August 4, 1878.Smith served as a part of the defendant's quota during the civil war, and the plaintiff contends that he acquired a settlement in the defendant town by virtue of the St. of 1878, c. 190, § 1 cl. 10.

That statute provides that a soldier duly enlisted and mustered as a part of the quota of a town, who "shall have duly served for not less than one year," or shall have died or become disabled in the service, or while a prisoner in the hands of the enemy, shall be deemed to have gained a settlement in said town; but that these provisions shall not apply to men receiving second bounties in certain cases, nor to men "who shall have been proved guilty of wilful desertion, or to have left the service otherwise than by reason of disability or an honorable discharge."

It is contended that Smith never fulfilled the first requirement of the statute, in that he never duly served a year.Upon this part of the case, the facts as found by the court are as follows: Smith was mustered into service, as a part of the quota of the defendant town, on August 18, 1863, and served with his company in the Ninth Regiment Massachusetts Volunteer Infantry, until the expiration of a furlough granted to him, which expired on July 12, 1864.On that day, Smith was in Canada, and became then in fact a deserter from said regiment, remaining in Canada, except during one or two brief excursions into the State of Vermont, where he was not known or recognized.

On April 20, 1865, he surrendered himself at Fort Independence, Boston Harbor, as a deserter, under the proclamation of the President of the United States of March 11, 1865(13 U.S. Sts. at Large, 752), relating to deserters from the military service of the United States, and there remained doing no military service until May 15, 1865, when he was honorably discharged as a surrendered deserter.There was no evidence that by court martial or otherwise Smith had been formally adjudged a deserter.

More than a year elapsed between Smith's muster into service and his discharge therefrom.But it will be observed that, if the time be computed from the date of his muster, August 18, 1863, to the expiration of his furlough, July 12, 1864, it makes a period of three hundred and twenty-eight days, and if to this time be added the time from his surrender to the date of his discharge, May 15, 1865, which would be twenty-five days, we have in all only three hundred and fifty-three days.As the learned judge who presided found for the plaintiff, it was necessarily held by him that the time which Smith was in fact a deserter was to be computed in determining whether he had "duly served" one year.

As the expenditures for the alleged wife and children of Peter Smith were made on or after August 4, 1878, the liability of the defendant town is to be determined by the provisions of the St. of 1878, c. 190, approved April 26, 1878.The Legislature may charge upon the several cities and towns, in any way it deems just, the support of the poor, and there is no constitutional objection to laws which alter the rules of settlement, even if they have the effect to transfer from one town to another the obligation to support individuals who may become entitled to relief as paupers.Lewiston v. North Yarmouth , 5 Greenl.66.Goshen v. Richmond, 4 Allen 458.Bridgewater v. Plymouth, 97 Mass. 382.Endicott v. Hopkinton, 125 Mass. 521.

The legislation in regard to military settlements dates from May 13, 1865, and is the St. of 1865, c. 230.The Rebellion had then substantially closed by the surrender of the last of the Confederate armies on April 26, 1865, although it was more than a year later that the President, by proclamation on August 20, 1866, announced that the insurrection against the national authority was at an end, and that "peace, order and tranquillity" then existed "in and throughout the whole of the United States of America."14 U.S. Sts. at Large, 814.McElrath v. United States, 102 U.S. 426.

The operation of this legislation was to confer the privileges of a legal settlement in any city or town upon those soldiers whom it described, who had been eventually credited to it as a part of its quota.Bridgewater v. Plymouth ubisupra.Under the St. of 1865, c. 230, § 1, such settlement could only be gained by one "who shall have continued in such service"(the military service of the United States)"for a term not less than one year."The St. of 1865, c. 230, was modified by provisions in the St. of 1866, c. 288, and the St. of 1868, c. 328.The St. of 1870, c. 392, repealed former statutes, but reenacted them with modifications, and an additional modification thereto was further made by the St. of 1871, c. 379.No change was made by any of these statutes...