Eichelberger v. Sifford

27 Md. 320, 1867 Md. LEXIS 51

• Court: Court of Appeals of Maryland
• Decided: June 28, 1867
• Status: Published

Opinions

Bowie, C. J.,

delivered the opinion of this Court.

•This appeal is taken from an order of the Court below, passed on the application of the appellees, directing a peremptory writ of mandamus to issue to the appellant, the State Bounty Commissioner for Frederick County, under the Acts of Assembly of 1865, chs. 33 and 106, commanding him to pay to the appellees, the authorized attorneys of James Rian, the State bounty of three hundred dollars, due and owing to him as a volunteer duly enlisted, enrolled and mustered into the army of the United States, under the call of the President of the 19th of December, 1864, and credited as part of the quota of the Frederick district, in Frederick County.

The appellant’s answer admits that Rian enlisted and was credited as part of the quota of Frederick district, that the appellant drew from the Treasury the sum of $300 for each person so enlisted and has the money now in his possession, but the appellant refuses to pay the appellees, first, because Ryan deserted from the army of the United States, immediately on and after his enlistment and never rendered any service therein.

For further defence, the appellant alleges, that he is required to pay to each person named on the rolls, and entitled thereto, or to his “ duly authorized agent or attorney,” the sum of three hundred dollars, and there is no evidence to satisfy the Court or the respondent of the identity of the said Rian, whose signature purports to be affixed to the power of attorney, or, that the appellees are his authorized agents or attorneys.

And for further cause, the appellant avers he is not a ministerial officer, but by the terms of the Act of Assembly, and the nature of his office, he is vested with a discretion, and therefore a writ of mandamus should not issue against him

The appellant’s answer presents both matter of law and matter of fact in defence, verified by his affidavit. It was incumbent upon the petitioners to take issue, or demur to these several defences. The record does not show either issue joined or demurrer entered. The Court below proceeded to act upon the petition and answer, without evidence, except the power of attorney and justice’s certificate filed with the petition. There was no agreement as far as appears of record, that the issue of fact should be determined by the Court.

There being no such submission of the facts to the Court, they could not properly be decided by it; a mandamus, is a proceeding at law, in which matters of fact are decided by the jury, unless submitted by agreement to the Court. Code of Pub. Gen. Laws, Art. 59, sec. 1.

It may be said this objection was not made below ; it is evidently presented by the answer. Assuming the fact to be established, the questions of law raised by the answer, which in that respect may be considered a demurrer to the petition, (the fact of desertion not being denied,) recur. The first consideration in this review of the case is, whether the petitioners sue “suo jure” or “ alieno jure.” They pray for a mandamus, commanding the appellant to pay to them, as “ the authorized attorneys of James Rian”— but they claim it under a power to receive it for their own use and benefit.

This power, if executed by the principal, is not a revocable power, but a power coupled with an interest, which passes all the right, title, and claim of the principal, if given for a valuable consideration' — but although not revocable by the party himself, it would seem to be revocable by his death. 2 Kent’s Comm., 857, 861, (top paging.)

If the petitioners have a right to claim “ suo jure,” that right cannot be affected by anything which occurred after the enlistment of the volunteer. The Acts use the words “authorized agents or attorneys,” which the appellant contends do not include assignees.

These terms must receive such construction, as is most consonant with reason and policy. The words “ agents or attorneys” are not necessarily interpreted “ attorneys in fact.” The verb ‘ attorn ” among other meanings, has to transfer or turn over to another. “Attorney” is one put in place of another. The references before made,' show powers of attorney are both revocable and irrevocable. There is nothing either in the policy or letter of the law, which authorizes us to give the word “ attorneys ” its more limited sense. On the contrary, interpreted by the light of experience, such acts could hardly have been executed, if the bounty were payable only to an attorney “ en autre droit.”

Regarding the law as warranting the payment of tlie bounty to attorneys for a valuable consideration, desertion after the assignment, cannot be any defence or reason for non-payment.

The word bounty” ex vi termini, implies a gratuity, not compensation, an inducement to enlist. It was not paid only to the man who volunteered and served, but to every drafted man who furnished a substitute. However ignominious and disreputable desertion may be, it is not followed by forfeiture of the bounty in such a case as this, and it is not necessary to go further to lay down general rules. The duty of a Bounty Commissioner is as strictly “ministerial ” in the legal sense of that word as can well be conceived. Ministerial is used in opposition to “ discretionary power or authority.” The office is that of a clerk acting under provisions of the law of the utmost simplicity.

Like the Treasurer in the case of Thomas vs. Owens, 4 Md. Rep., 189, he had only to disburse the public money upon the production of the certificate of the Provost Marshal, or the presentation of a power of attorney duly authenticated.

The Bounty Commissioner must use due caution to prevent fraud or forgeries, but so must every man acting in any official capacity. The Treasurer must be satisfied that the warrant of the Comptroller is genuine ; yet it was held in the case of Owens, before cited, if a proper warrant were drawn by the Comptroller and presented to the Treasurer, the duty of the latter was purely ministerial, and if payment were refused, a mandamus was the proper remedy.

(Decided 28th June, 1867.)

We have said the issue of fact presented by the answer had not been proved. There is no Act of Assembly in this State, making the certificate’of a justice of the peace of the execution and acknowedgment of a power of attorney, evidence per se of the facts certified.

The magistrate or one of the subscribing witnesses, the principal having made his mark, should have been called and examined to prove the identity of the person and the execution of the instrument. In the absence of such X>roof, the Comptroller was justified in withholding payment. The order granting the mandamus being premature, the same will be reversed and procedendo awarded.

Order reversed and procedendo awarded.