State v. Mayor of Baltimore

52 Md. 398, 1879 Md. LEXIS 118

• Court: Court of Appeals of Maryland
• Decided: July 16, 1879
• Status: Published

Opinion

Miller, J.,

delivered the opinion of the Court.

This cause, in which cross appeals have been taken, was tried before the Court without the intervention of a jury, and in such case, equally as in jury trials, only questions of law are open for review in this Court. Those questions in the present case are but few, and do not require an examination of all the numerous' provisions of the several Bounty Acts referred to in the record and in argument. Some of the rulings of the Superior Court, however, present questions as to the validity, construction and effects of certain parts of those laws, and these must be briefly stated. •

1st. By the Act of 1864, ch. 15, (which was the first of these laws,) the Governor was authorized to offer a bounty of $300 to every person, who should before the 1st of March, 1864, voluntarily enlist to serve, as part of the quota of this State, in the armies of the United States, and of this sum it was provided that $150 should he paid at the time such person should be mustered into the service of the United States, and $20 at the end of each month of service for the five months immediately ensuing, and $50 at the expiration of his term of service or upon his honorable discharge therefrom. By another section of the same Act it was provided “ that the Governor shall, as soon as may he, notify the Commissioners of the several counties, and the Mayor and City Council of Baltimore, of the number of men for which they are liable to be drafted under existing calls by the Federal Government, and the said Commissioners or Mayor, or City Council, upon forwarding to the Governor properly authenticated lists of volunteers mustered in under this Act, in their respective counties and the City of Baltimore, are hereby authorized and empowered, upon the certificate of the Governor, to draw upon the Treasurer for the sum or sums necessary to pay the cash and monthly payments to which said volunteers would be entitled, as the same may become due, retaining in the Treasury the balance until the expiration of their term of service.”

The testimony in the case shows the mode in which this provision of the law was executed. A large number of these lists, duly authenticated by the proper military officials, were forwarded to the Governor, and are termed in the record the “ Governor’s Rolls,” and we shall take the first one as illustrating what was done in the case of each and all of them. This list contains the names of one hundred and twenty-four persons, and upon its receipt the Governor appended thereto his -certificate, directed “To the Mayor and City Council of Baltimore,”, stating in substance that “having heen furnished by the proper authorities with authenticated lists of a portion of the volunteers from this State who have been mustered into the military service of the United States, and who are entitled to the State bounty provided” by the Act of 1864, and that “it appears by the lists so furnished that the volunteers mentioned and described in the annexed list are properly to be credited to Baltimore City as part of the State’s quota of men called for by the President’s Proclamations,” and “ you are therefore, in accordance with the Act of the Legislature referred to, entitled to receive from the Treasury of the State the sum of $31,000, being the amount required to make the cash and monthly payments to the one hundred and twenty-four volunteers whose names are hereby appended,” and “ you are therefore authorized to draw upon the Treasurer of the State for said amount as per draft hereto annexed, which you will sign and present at the Treasury.” Then follows, endorsed upon this certificate, the draft upon the Treasurer, signed by “John A. Thompson, City Register,” for that sum, “ it being the amount required to make the cash and monthly payments to the one hundred and twenty-four volunteers within named, under the provisions of the Act” of 1864, upon which the money was duly paid by the Treasury officers to the Bank named as payee therein. It is very clear that this action was in strict compliance with this provision of the law, for its terms plainly enough declare that the money so drawn from the Treasury should be applied only for the purpose of making the requisite payments to, or for the benefit of, the persons whose names should appear on the lists thus forwarded to and certified by the Governor.

Then in order to secure the proper disbursement of the money taken from the Treasury and received by the city and counties, it was provided by another section of the same Act “ that the said County Commissioners and the Register of the .City of Baltimore shall disburse the sums so coming into their hands, and shall keep a record thereof ; hut no county nor the City of Baltimore shall draw for and be paid a larger sum than may be necessary for their respective quotas; and the several counties and the City of Baltimore shall be liable to the State for any misapplication of the said funds by the County Commissioners or City Register.” It is contended, on the part of the city, that by this enactment the City Register was constituted a State agent for the disbursement of this fund, and that it was not competent for the Legislature to make the city liable for his default. Row while it maybe conceded that the power of the Legislature over public municipal corporations is not in all respects absolute or unlimited, yet we think it was within the scope of such power and control to impose the duty and liability contained in this provision. It is now too well settled by authority to admit of doubt, that the Legislature had the power to pass a Bounty Act like this, appropriating money from the Treasury, for the purpose of relieving the citizens of the State from the burthen of an involuntary draft, and it could have granted permission to the counties and the City of Baltimore to raise money by taxation for that purpose. Cooley on Cons, him., 221. This law then in effect is nothing more than an appropriation of various sums of money for the relief, and for the benefit of the people of the several counties and the City of Baltimore respectively. It deals directly with the counties and the city in their corporate and municipal relations, authorizes the money to be drawn by their respective corporate authorities, and designates officers appointed by the Mayor and City Council or elected by the people of the counties as the proper agents to disburse the money in the mode and manner provided, and all this is to be done for the relief and benefit of the people of the city and counties respectively. Why then was it not competent as well as just to impose upon the counties and the city liability for thfe default of such officers in the discharge of this public duty thus required of them ? It has been repeatedly decided by this Court that where a statute imposes a duty upon a county or municipal corporation, and provides it with the means, and clothes it with the power to enforce or discharge that duty, liability to any one injured by a neglect to perform or a negligent performance, follows without any express statutory provision to that effect. The cases on this subject are considered and reviewed in Flynn vs. Canton Co., 40 Md., 312. Here liability to the State, is expressly provided by the statute, and we entertain no doubt as to the power of the Legislature to impose it. It is next insisted that by the term “misapplication” as here used, nothing more was intended than to guard against the use of'the State’s funds for county or city purposes, hut this in our opinion, places too narrow a construction upon the language employed, and one not justified by the general tenor and purpose of the Act. This law, as we have shown, very carefully specifies the persons to whom, or for whose benefit, the money was to be disbursed, and we think it very clear that disbursements to parties whose names do not appear on the “ Governor’s Rolls,” or payment to the same person more than once, are misapplications within the meaning of the statute, and for the amount of these the city was properly held liable. For that amount alone was the judgment against the city rendered.

For the reasons thus stated we find no error in the rulings of the Superior Court leading to that result, and this disposes of the appeal taken by the city.

2nd. This brings us to the rulings which resulted in the rejection of other amounts claimed by the State. These are made up of payments alleged and purporting to have been made to or for parties whose names are on the lists furnished to the Governor, but for which the State insists no sufficient vouchers have been produced, and the fact of proper payment not otherwise' sufficiently proved. The principal ground upon which the State founds its claim to recover these sums is the non-production in the instances specified of duly executed and legally sufficient powers of attorney where payments were made to claim agents or other parties than the volunteers themselves. As to this question we agree substantially with the views taken of it by the learned Judge below in his opinion, which appears in the record, and by the City Counsellor in his brief. The Act of 1864 prescribes no particular mode of payment nor does it direct what vouchers therefor shall be taken or preserved. Its only requirement is that the Register “ shall keep a record ” of his disbursements, and, as we understand the testimony in the case, that was done. A record was kept in which the disbursements were regularly and duly entered when and as they were respectively made. Whether payment should be made to each volunteer in person, or upon his order, and whether such order should be in writing and how evidenced, were all matters entrusted to the discretion of the Register, and his decision thereon, if honestly made, was final. Where duties of this character are devolved upon a public officer, and no particular provision is made in the statute as to how they shall be discharged, his action in the premises, unless impeached for fraud, or manifestly in excess of his authority, must of necessity be conclusive. As said by Judge Stout, in Allen vs. Blunt, (8 Story’s C. C. Rep., 145,) “It may be laid down as a general rule that where a particular authority is confided to a particular officer, to be exercised by him in his discretion upon an examination of facts of which he is made the appropriate judge, his decision upon these facts is, in the absence of any controlling provision, absolutely conclusive as to the existence of those facts.” Here the law in question contemplated the disbursement of large sums of money in small amounts to a very large number of volunteers who, as soon as mustered into service, were liable to be, and were in fact, sent away and employed in distant parts of the country. In that case, payments, at least of the five monthly instalments as they respectively fell due, were of necessity made to agents upon orders or under powers of attorney. By a resolution of the Mayor and City Council, adopted in March, 1864, shortly after the passage of this Bounty Act, the Register was authorized to employ an additional clerk for the purpose of aiding him in the discharge of the duty of disbursing this bounty money, and this clerk, together with the Register himself, who made most of the disbursements, and his successor in office who made the rest, all testify to the effect that it was the invariable practice of the Register’s office to require proper and sufficient powers of attorney, orders or assignments, and in all cases of doubt to consult the City Counsellor; that such orders or powers of attorney were in 'all cases before them when disbursements were made thereon, and entries of such disbursements were at once made in the record thereof, and that in no case would any payment have been made without the production and existence of such vouchers. That it is competent for a public officer to prove that according to the invariable practice of his office certain entries made by him as such public officer could only have been made upon the production and filing with him of a certain writ-ten instrument, the existence of which was the subject in dispute, seems to have been decided by the Supreme Court in the case of Bouldin vs. Massie’s Heirs, 7 Wheat., 122. One of the questions in that case was whether an assignment of a land-warrent could he proved by the testimony of the public officer with whom it should have been filed, to the effect that an entry made by himself in the name of the assignee would only have been made upon the production of a proper assignment of the warrant, and in considering that question, Chief Justice Marshall says, “ It is impossible to read the testimony of the principal surveyor, or to credit it, without believing that an assignment purporting to be made by Jonitte to Massie was produced by Massie and deposited in his office. His fixed rule to require the jiroduction of an assignment before an entry in the name of the assignee could be permitted, his averment that he never departed from that rule except in a single instance, his clear recollection of the circumstances attending that instance, his admission of entries in the name of Massie as assignee in the life-time of Jonitte, his averment that the assignment was placed in his office and taken out with the plats and certificates of survey by Massie, prove that there must have been such a paper.” The testimony of these' Registers and of their clerk is quite as strong as that of the surveyor in the case cited, and their testimony is corroborated by that of a large number of witnesses who had dealings with the office and to whom payments were made upon powers of attorney not now produced. It seems to us that this proof is sufficient to establish the fact that vouchers which the Register in good faith decided to be sufficient to authorize payments thereunder, in cases where they have not been produced and are alleged to be lost, once existed. We are also of opinion that the loss of these papers and an unavailing and sufficient search for them in the places where they were kept and where they ought to have been found if in existence, are sufficiently established by the proof in the record, and therefore, that the Court was right in holding that the testimony of these witnesses was admissible to prove the contents of these lost vouchers, and that under the circumstances of this case, their contents are sufficiently proved to justify the exoneration of the city from liability for the payments in dispute made thereunder. From this it follows there was no error in the rulings against the State. This disposes of the State’s appeal, and the result is that the judgment must be affirmed.

In thus disposing of the case, we have not overlooked the supplementary Bounty Acts, but find nothing in any of them to induce us to modify the views expressed in this opinion. Of course the Register could not be required under the Act of 1867, chap. 167, to produce any different vouchers from those he was required by the Act of 1864 to keep. The disbursements in controversy were all made under the provisions of that Act, and the duty of the Register as well as the liability of the city are governed by its provisions.

(Decided 16th July, 1879.)

By the Act of 1878, chap. 61, it is provided that “upon the reversal or affirmance of the judgment of a Court of law, the Court of Appeals shall award the costs which may have accrued in the Court below, and in the Court of Appeals, in such manner as to the said Court seems right and proper.” In pursuance of this authority, we adjudge that all costs that have accrued in the Court below shall be paid by the city, and that three-fourths of the costs that have accrued in this Court shall be paid by the State and one-fourth by the city. In disposing of the costs in this Court, we have considered that both parties have appealed and neither has been successful in reversing the judgment, and have therefore apportioned the costs very nearly in the proportion that the amount recovered by the State bears to the amount she claimed in the Court below.

Judgment affirmed, ivith costs

to be paid as directed in the opinion.