The Worcester spy. [volume] (Worcester, Mass.) 1898-1904, 1898-12-15
City Has No Right to Pay
Soldiers Salaries.
City Solicitor Renders Important Decision
on the Moynihan Case, and Disposes
of the Two Orders Intended to Pay
The Volunteers During Their
Services in the Field

The order introduced in the city
council some time ago for the payment
of the salary of Patrolman jeremiah J.
Moynihan, for one year from the date
of the order or during the time that
Patrolman Moynihan, as Captain Moy-
nihau of the Emmets, was actively en-
gagged in the service Of the country in
the war with Spain, is Illegal.
City Solicitor Rugg has rendered an
opinion to the committee on finance, to
whom this order was referred, and the
opinion will be reported by the commit
tee to the meeting of the city council
Monday night The opinion on this
particular order applies with similar
force to the general order introduced
for the payment by the city, to all of
its soldier employees, of their full sal
aries during their absence as volunteers
in the service Of their country
This settles the whole matter as far
as the question of the city's paying sal
aries to soldier employees is concerned
The city council win hardly assume the
authority and responsibility that the
city snli Lol tates thai it has not got.
and the two orders are done for The
general question may be referred to
the next city council, with the recon-
mendation that the Legislature be petit
toned for the necessary authority. but
that is the business of the next city
council. and not this one.
The opinion of City Solicitor Rugg is
very important. 1t will be read with
intense interest by the soldier boys of
the war. who were more or less con-
cerned as to the treatment to be ac-
corded the city to it's soldier employees.
The opinion is as follows:
BY vote of the ioint standing com
mittee on finance, there was referred
to the city solicitor, with request Cor
his opinion, the following Order:
Ordered that jeremiah J. Moyni-
han be paid his regular salary as pa
trclman for one year from the date
hereof If actually engaged in the ser
vice of the United States in the war
with Spain, the expense to be charged
TO the appropriation for police depart
ment."
And also the following resolution:
Resolved, that in the judgment of
the members of the city council. the
compensation of all employees of the
city who voluntarily answered the call
Of the president of the United States
for soldiers in the war between the
Urited States and Spain, should be
continued during their terms of ac-
tive service, and that the mayor be
and is authorized TO take such meas
Ures as may be necessary for carry
ing this resolution into effect"
Apart from any statute comforting
authority to take action along the lines
indicated by this order and resolution,
it cannot be contended that the ex-
penditure of public money for these
purposes is within the power of a mu-
nicipality The duty of furnishing and
paying militia or aoldiers for the gen
eral government, is no part of the cor
pOrate duty of a city. The language
of the supreme court in q leading case
involving the consideration of similar
principles, which has often been cited
with approval is peculiarly applicable
ITO give additional wages in order
to encourage such as may be drafted,
may eVince the sense of danger and
the patriotism of a town, but it does
not fall within any duty imposed by
law, and it is not certain that it would
produce any valuable end For instead
of a uniform and equal payment of all
those who, in other respects are on
a footing of equality, ut would probab-
ly cause jealousies and dissension,
which might be highly injurious to the
public service. At any rate such a
tax can in no view be considered as
laid for the discharge of necessary
town charges. For no necessity of in
curing the expense exists, and the
additional compensation intended is
nothing more than a gratuity or bonus,
which may well come from individual
bounty, but cannot be the subject of
legal exactiOn." Stetson VS. Kempton,
10 Mass. I'll, $50, PSI.
The legislature of 1898, in chapter
So sec. l. enacted that amy appropria-
tion already made or liability or obli-
cation already incurred or expenditure
already authorized or agreed upon. by
any city or the mayor and aldermen
thereof or by any town or the select
men thereof, for the benefit of persons
entering the military and naval service
of the United States or Of this common
wealth. in the present war with Spain.
or for the benefit of the families of such
person. is hereby legalized and con-
frmed."
1t is to be observed that this legisla-
ton is not prospective in its Operation
it simply confirms and legalizes action
already taken, but does not authorize
any future action looking to the same
end. The reason perhaps may be that
at the time of the passage of the above
act, on the 23d Of June, 1898, the ex-
igencies of enlistment for the Spanish
war had for the time ceased to exist
and it was not likely that there would
be any further call for troops. The act
of 1898 was probably passed under very
much the same circumstances attend
ing the passage of chapter IS of the
laws of 1863, which was also an act con-
fl rmatory and not prospective in it's
operation with reference 10 bounties
and recruiting expenses paid by cities
and towns for soldiers in the civil war,