Eichelberger v. Sifford

27 Md. 320 | Md. | 1867

Lead Opinion

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.

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Dissenting Opinion

Weisel, J.,

delivered the following dissenting opinion :

I am constrained to dissent from some of the views of my brothers expressed in their opinion in this case, agreeing with them, however, in the reversal.

The appellees are the assignees of the bounty, but took a power of attorney to enable them to receive or collect it. The petition and power of attorney both assert this character of the claimants.

In the argument it was contended on the part of the appellant that the bounty, by the express terms of the Acts of Assembly, was to be paid by the Bounty Commissioner to the volunteer or drafted man, or to his substitute, entering the service of the United States under the call of the President mentioned therein, or to his authorized agent or attorney ; and that there is no authority for paying it to an assignee, the letter as well as the spirit of the law designing the soldier entering the service to he the recipient, hy himself or his agent or attorney, of the bounty; and that this design of the law would be frustrated, the public service impaired, and the Treasury defrauded by a different construction, or by a payment to any but the persons designated by the Act. This position, I think, is the true one. Whilst on the one hand it secures to the honest soldier the full benefit of the bounty and protects him against designing men and evil practices, it secures to the public the best services when danger calls for them, and gives the proper direction to the funds, raised to reward those who are ready to peril person and life for the public safety. The law is studiously careful throughout in the use of language restricting the payment to the volunteer or drafted man, or his substitute, or his authorized agent or attorney. Public policy forbids such assignments, unless the law which creates them, expressly, or by necessary implication, allows them ; and they will not be upheld either in equity or at law. So it has been decided repeatedly in the English Courts with regard to the full or half pay of an officer in the army or navy, which is not assignable either by the party or by operation of law. In such cases the object of the Government is to command a right to his future services, and to enable the party to perform the duties with suitable means to support him. And Judge Story thinks that the same principle should be applied to pensions, although they are allowed for past and not future services. It applies with great force to bounties which are given as additional inducements for services to be rendered. They are in the nature of rewards ; otherwise they would be a vain and extravagant gratuity, and in such case every consideration would confine the gift to the donor. The want of a consideration would deprive it of the main attribute of a contract and divest it of any assignable quality. 2 Story’s Eq. Jur., sec. 1040, (d,) and 1040, (e.)

There is an obvious distinction between an assignee, with a power to collect, and an agent or attorney duly authorized to receive. The assignee collects for himself, and may have paid but a small consideration for the bounty. The agent or attorney contemplated by the law collects or receives for his principal, who gets the full amount for himself, with only such deductions or commissions as may be allowed the agent for his services. It is true, an assignee may impose himself upon the disbursing officer as an agent with a power of attorney, and succeed in obtaining the money, but where the true character of the applicant is known, that officer is acting strictly within the line of duty and the provisions of the law, hy refusing payment.

I concur that a mandamus is the proper remedy. But the applicant must bring himself within the terms of the law. The Commissioner must be satisfied that the person appplying, by himself or agent, is on the roll containing the names entitled to the bounty drawn from the Treasury ; and in case the application be made by an agent he is to be further satisfied of his appointment or authority as such. But in determining these he acts ministerially. As a public officer and accountable to the Comptroller of the Treasury, (Const., Art. 6, secs. 3 and 14 Md. Rep., 369,) it is his duty to pay to the right person, and have the proper voucher.

The words “agent and attorney,” in the Acts of Assembly mean, in my judgment, the- same thing. An agent who acts with a formal power of attorney is denominated an attorney in fact.

It appears from the answer of the appellant, uncontradicted by anything in the record, that the James Rian who enlisted and assigned his bounty thereupon to the appellees, “ deserted from, the service and army of the United States immediately on and after his said enlistment, and never rendered any service therein.” The party himself, or his agent, in the face of this fact, could not have received his bounty after enlistment and after desertion had he applied for it, unless the Legislature of Maryland intended to offer a bounty for desertion and not for service, which can scarcely be pretended. And if the bounty were paid to him and he afterwards deserted, I hold that an action would lie for the recovery of the bounty thus paid, and of which the State was defrauded.