State ex rel. Bohannon v. Cnty. Court of Howard Cnty.

• Decision Date: 31 January 1867
• Citation: 39 Mo. 375
• Parties: STATE OF MISSOURI ex rel. WM. M. BOHANNON, Petitioner, v. THE COUNTY COURT OF HOWARD COUNTY, Respondent.
• Court: Missouri Supreme Court

39 Mo. 375

STATE OF MISSOURI ex rel. WM. M. BOHANNON, Petitioner,

v.THE COUNTY COURT OF HOWARD COUNTY, Respondent.

Supreme Court of Missouri.

January Term, 1867.

Appeal from Howard Circuit Court.

Prewitt, for appellant.

I. Under the order of the County Court the bounty is given for volunteering, not for serving. The consideration is going into the service. The time fixed for payment is one-half down, and the balance when one-half of their respective times of enlistment had expired. Serving was not intended as a condition.

II. If serving were a condition, it had been performed. The company was still in service until after the time fixed for the payment of the last half of the bounty. The enlistment was for twelve months. They were under contract to serve for that time, unless discharged. The order relieving the company from duty was not a discharge; they were not discharged, and were consequently in service, and were liable to be called on at any moment to do active duty until the expiration of the period of enlistment--Acts of Cong. 1865-6, p. 322; 26 N. Y. 30; 17 Mo. 359; 25 Mo. 354.

Hall and Reid, for respondent.

Only part of the first six months' service was rendered, for which appellant was paid; no part of the second six months' service was rendered, and no right accrued to the second instalment.

The appellant was not prevented by appellee from performing any part of the engagement.HOLMES, Judge, delivered the opinion of the court.

This case comes up on appeal from the Howard Circuit Court. The petitioner enlisted as a volunteer in the State military service to serve for one year, in pursuance of an order of the County Court of said county appropriating money for the purpose of paying bounties to volunteers, to every private for one year the sum of two hundred dollars, one-half to be paid when they were received into the service, and the remainder when said volunteers should have served out half their respective periods of enlistment; and for the purpose of raising the money the County Court ordered an issue of bonds to the amount of one hundred thousand dollars, and appointed a commissioner to sell the same. The defendant enlisted for one year, on the 25th of March, 1865, and received the first half of the bounty. After serving for four months, he was relieved from immediate duty, but was not discharged from further service. When the second half of the bounty became due, and after six months had expired, the County Court refused to pay the same, for the reason that he had been relieved from duty, and had not actually served during the latter half of his time of service. It appears further that the County Court rescinded the orders, and stopped the further sale of bonds by the commissioner. And the petitioner prayed for a writ of mandamus to compel the county Court to proceed in the business, and pay to him the remainder of his bounty. A demurrer to the petition was sustained, and there was judgment for the defendant on demurrer.

The question presented for decision is, whether the petitioner was entitled to the whole bounty.

The County Court was expressly authorized by sta...