
    Bartholomew Cusick vs. Inhabitants of Brookline.
    Suffolk.
    March 12.
    July 3, 1877.
    Endicott & Soule, JJ., absent.
    Under the St. of 1866, c. 172, providing state aid for certain persons, and, in § 11, that towns and cities may raise and apply money for such purpose, and that “ all persons entitled to aid ” “who do not apply for the same within three months from the passage hereof, shall not receive said aid prior to the date of their application,” a vote of a town to pay such a person “ back state aid,” upon an application filed after the expiration of the three months, is illegal and void.
    Contract to recover $350, the amount of an appropriation voted by the defendant at a town meeting on April 12, 1875, under an appropriate article in the warrant, “ for the purpose of paying Bartholomew Cusick back state aid.”
    Trial in the Superior Court, before Grardner, J., who directed a verdict for the defendant, and reported the case for the consideration of this court. So much of the report as is necessary to the understanding of the point decided was as follows:
    The plaintiff introduced evidence tending to show that he enlisted into the military service of the United States on November 3,1861, (at which time he resided in Brookline,) as a member of Company A, Thirty-second Regiment Massachusetts Volunteers ; that he was duly mustered into service as a member of said company, and served therein until February 9,1863, when he was honorably discharged for disability; that he resided in this state; that he was, and had been ever since said service, partially disabled by sickness contracted therein, for which he was in receipt of a pension from the United States; that he was claimed by the town of Brookline as part of her quota under a call of the President for volunteers, and allowed as such by the state; and that he was credited by the United States to this state as part of said quota under said call.
    There was evidence that he was paid state aid by the town of Brookline in 1861, but to what amount did not appear; that he was paid $156 as state aid by the town in 1862, of which $144 was reimbursed by the state, and that he was paid $15 in 1863, which also was reimbursed; that, after the payments in 1863, he made no application for state aid until January 18, 1875, when he did make application to the selectmen, which application was duly transmitted by them to the state authorities, and was produced at the trial by the state auditor ; and that, since the date of the application, he had received $2 a month as state aid. Except as aforesaid, he had received no state aid from any town or state.
    
      A. JJ1. JPillsbury, for the plaintiff.
    
      M, Williams, Jr., for the defendant.
   Morton, J.

The right of the plaintiff to receive state aid from the town of Brookline, and the legality of the vote of the town appropriating “ the sum of $350 for the purpose of paying Bartholomew Ousick back state aid,” depend upon the construction of the St. of 1866, c. 172.

This statute, by its terms, expired on January 1, 1871, but, by successive statutes, its operation was extended to January 1, , 880. Sts. 1870, c. 339 ; 1872, c. 324; 1874, e. 330. This statute therefore was in force when the vote was passed, and was the only statute, then in force, which authorized the town to raise and appropriate money for the purpose contemplated in the vote.

The statute provides that “ the treasurers of cities and towns shall, under the direction of the city council or selectmen thereof, pay monthly the sum of six dollars, from and after the first day of January in the year eighteen hundred and sixty-six, to any person ” who has the qualifications fixed by the subsequent provisions. The eleventh section provides that “ any town or city may raise money by taxation or otherwise, and, if necessary, apply the same for the purposes set forth in this act; and all persons entitled to aid under the provisions of this act, who do not apply for the same within three months from the passage hereof, shall not receive said aid prior to the date of their application.”

In the case at bar, it was shown at the trial that Cusick received aid from the town of Brookline in 1862 and 1863, and that, after the payments in 1863, “ he made no application for state aid until January 18,1875, when he did make application to the selectmen, which application was duly transmitted by them to the state authorities.”

It thus appears that the plaintiff does not bring himself within the terms of the statute, as a person entitled to receive state aid from the town for any time prior to January 18,1875. The vote of the town was to raise and appropriate money for the purpose of paying the plaintiff “ back state aid.” No one can doubt that by this was meant state aid for the time prior to his application in January, 1875. The plaintiff had no right to such aid, and the town had no authority to raise or appropriate money for the purpose of paying it. The vote to do so was a vote to pay to the plaintiff a mere gratuity, and was illegal and void.

These reasons are decisive against the plaintiff’s right to maintain this action, and it is not necessary to discuss the other grounds of defence urged on behalf of the town.

Judgment on the verdict for the defendant  