Mead v. Inhabitants of Action

• Decision Date: 31 May 1885
• Citation: 1 N.E. 413,139 Mass. 341
• Parties: MEAD and others, Petitioners, v. INHABITANTS OF ACTION and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 341

1 N.E. 413

MEAD and others, Petitioners,

v.INHABITANTS OF ACTION and others.

Supreme Judicial Court of Massachusetts.

Filed May, 1885.

E.R. Hoar and Samuel Hoar, for petitioners.

Gaston & Whitney and P.A. Collins, for respondents.

MORTON, C.J.

By the statute of 1882, c. 93, the legislature authorized the town of Acton “to raise by taxation a sum of money not exceeding $4,000, and appropriate the same to the payment of a bounty of $125 to each soldier, or the legal representatives of each soldier, who re-enlisted as a veteran in the 26th regiment of Massachusetts volunteers, under the call of the president, dated October 17, 1863, who was raised in said town, and has never received therefrom any bounty for such re-enlistment: provided, that said town shall not be reimbursed by the commonwealth for any money paid under the authority of this act.” Acting under the authority of this statute, the town, at a meeting held the third of April, 1882, voted to raise by taxation the sum of $4,000, and to appropriate the same to the payment of bounties, as authorized by the statute; and thereupon the petitioners, being more than 10 of the inhabitants of the town, filed this petition under the General Statutes for an injunction to restrain the town from raising or appropriating the money according to this vote. It is admitted, among other facts, that the soldiers-being 31 in number-to whom it is intended to pay the bounties re-enlisted, in January, 1864, in Company E of the 26th regiment of Massachusetts volunteers, at New Orleans, in the state of Louisiana, and were duly mustered into the service of the United States for three years or the closing of the war, and were entered upon the quota of Massachusetts, and to the town of Acton. It is not claimed that there was any promise by the town, or by any one acting on behalf of the town, to pay any bounties to these soldiers at or before their re-enlistment. Indeed, the town could not then legally pay, or promise to pay, bounties to these men. St.1863, c. 91.

The principal question in the case is as to the constitutionality of the statute of 1882, before cited. Many cases have arisen since the late civil war in which the courts have been called upon to consider the power of the legislature, and of the cities and towns acting under its authority, to raise money by taxation for the benefit of soldiers, and the constitutional limitations upon that power. It has uniformly been held that, although the duty of providing for the necessary defense and support of the government primarily rests upon the state, it is and was competent for the legislature to impose on towns this duty, or such part of it as is deemed wise, and to authorize towns to raise money by taxation necessary for the performance of the duty thus imposed; and therefore it has been held that the legislature might, by a general law, authorize towns to raise money by taxation for the payment of bounties to soldiers, to induce them to enlist in the army of the United States serving in the late war, or for the repayment of money which had been advanced by the town, or by individuals by contribution to a public fund, for the purpose of procuring enlistments. Lowell v. Oliver, 8 Allen, 247;Freeland v. Hastings, 10 Allen, 570. We do not discuss the reasons for these decisions, because they are fully stated in the preceding cases, and particularly in the opinions in the two cases above cited:

“It will be seen that the essential element in these cases is that the money which the legislature authorizes towns to raise must be raised and expended for public purposes; for filling the army; for the support and defense of the government. The cases where the legislature has authorized towns to raise money by taxation for the repayment of money advanced by towns or individuals have all been cases where the money has been advanced to pay bounties to soldiers as inducements to them to enlist; in other words, where the money, in fact, has been expended for the public service. The distinction between the right of the legislature to authorize taxation for public purposes, and the right to authorize it for private purposes, is sharply illustrated in Freeland v. Hastings, ubi supra, where it was held that the legislature might authorize towns to raise money for the purpose of refunding sums which had been appropriated by individuals to a money fund for the purpose of filling the quotas of the towns furnishing soldiers for the...