Clark the Mayor, Aldermen Common Council of the City of Washington

• Decision Date: 07 February 1827
• Parties: CLARK against THE MAYOR, ALDERMEN, and COMMON COUNCIL OF THE CITY OF WASHINGTON
• Court: U.S. Supreme Court

25 U.S. 40

6 L.Ed. 544

12 Wheat. 40

CLARK against THE MAYOR, ALDERMEN, and COMMON

COUNCIL OF THE CITY OF WASHINGTON.

February 7, 1827

ERROR to the Circuit Court for the District of Columbia.

This was an action of assumpsit, brought by the plaintiff in error, to recover of the defendants the amount of a prize drawn in a lottery called 'the fifth class of the National Lottery.' A verdict was found for the plaintiff in the Court below, subject to the opinion of the Court, on a case agreed, on which judgment was rendered for the defendants, and the cause was brought by writ of error to this Court.

By the constitution of the United States, Congress has

power to exercise exclusive legislation in all cases whatsoever over the district, which being ceded by particular States, may become the seat of the government of the Union. The District of Columbia having been ceded for that purpose, Congress passed an act, creating a municipal corporation for the city of Washington; and by the act of the 4th May, 1812, for amending the charter, gave the corporation 'full power and authority to authorize the drawing of lotteries for effecting any important improvement in the city, which the ordinary funds or revenue thereof will not accomplish; provided, that the amount to be raised in each year shall not exceed the sum of 10,000 dollars; and provided also, that the object for which the money is intended to be raised, shall be first submitted to the President of the United States, and shall be approved by him.' For the purpose of carrying this power into execution, ten successive resolutions were passed by the corporation, the first of which was approved by the President of the United States on the 23d of November, 1812, and the last on the 21st of May, 1821, each of them for raising 10,000 dollars by lottery, for the several objects of endowing two public school houses, on the Lancasterian system; of building a work house and penitentiary, and a town house or city hall. On the 24th of July, 1815, the corporation passed an ordinance for carrying into effect the three first of the above resolutions, and appointed certain managers by name, viz. John Davidson, Thomas H. Gillis, Andrew Way, Jr. Moses Young, William Brent, Daniel Rapine, and Samuel N. Smallwood, whose duty it was made to agree on and propose a scheme or schemes of a lottery or lotteries, to raise the sum of 30,000 dollars, (clear of all expenses,) and to sell and dispose of the tickets therein to the best advantage, with the least possible delay, and diligently to attend the drawing of the said lottery or lotteries, which should be in the city of Washington; and within 60 days after the drawings of the same, respectively, (the time of each drawing not to exceed two years,) to pay and satisfy the fortunate adventurers for prizes; and, within 70 days, to pay over the balance, after deducting all necessary expenses, into the city treasury; and giving to said managers full power and authority to appoint all necessary agents, clerks, and servants, to do and perform all such acts and things as might be necessary to carry into effect the provisions of the ordinance. Another ordinance was passed on the 17th of November, 1818, for the purpose of carrying into effect the 4th, 5th, 6th, and 7th, of the aforesaid resolutions, by which (inter alia) the mayor was authorized to appoint seven citizens to act as managers for the purpose aforesaid, whose duty was declared to be to agree on a scheme of a lottery to raise the sum of 40,000 dollars, (clear of expenses,) and to sell the said lottery, or dispose of the tickets therein to the best advantage, with the least possible delay, and diligently to attend the drawing of the said lottery, which should be in the city of Washington: Provided, however, that if the said managers, or a majority of them, should sell the said lottery, the individual or individuals purchasing the same, should have the power of making a scheme for the aforesaid lottery, and within 60 days after the drawing, (the time of drawing not to exceed one year,) to pay and satisfy the fortunate adventurers for prizes; and within 70 days, to pay over the balance, after deducting all necessary expenses, into the city treasury, with the like power and authority to the managers, as in the former act, to appoint all necessary agents, clerks, and servants, &c. The mayor appointed, under the authority of the last mentioned act, seven citizens to act as managers for the purposes aforesaid, the same as those appointed by name in the former act, except that, in the last, Roger C. Weightman takes the place of Samuel N. Smallwood.

On the 25th of October, 1819, another ordinance was passed, by which the managers appointed under the ordinance of 1815, were empowered to sell and dispose of the lotteries to which that ordinance refers, or so much thereof as yet remains to be drawn, in such classes, and on such terms and conditions, as should appear to them right and expedient.

In pursuance of the ordinances of 1815 and 1819, the managers sold to David Gillespie, of New-York, a lottery called the 'Fifth Class of the Grand National Lottery,' for the sum of 10,000 dollars, to be paid before the commencement of the drawing thereof; and the following articles of agreement were entered into for that purpose.

'Memorandum of an agreement, made and entered into this 4th day of May, 1821, between Roger C. Weightman, John Davidson, Thomas H. Gillis, Andrew Way, jun., Moses Young, William Brent, and Daniel Rapine, as managers of the lotteries authorized by an act of the Board of Aldermen and Board of Common Council of the city of Washington, for the purposes therein mentioned, approved July 24, 1815, of the one part, and David Gillespie, of the city of New-York, in the State of New-York, of the other part: Whereas, by an act of the Board of Aldermen and Board of Common Council of the said city of Washington, approved October 25, 1819, supplementary to the act aforesaid, the said managers are authorized and empowered to sell and dispose of the said lotteries, in such classes, and on such terms and conditions, as shall appear to them right and expedient, and according to the true intent and meaning of the act aforesaid; and that the said managers, for the purpose of raising the sum of 10,000 dollars, in conformity with the provisions of the said first mentioned act, and in pursuance of the power and authority in them vested by the said supplementary act, have agreed to sell and dispose of, to the said David Gillespie, a lottery, denominated the Fifth Class of the Grand National Lottery, to be drawn according to the scheme hereunto annexed; and the said David Gillespie, in consideration thereof, hereby agrees to pay to the said managers the sum of 10,000 dollars, before the commencement of the drawing the said lottery, or class, at his own proper cost, charge and expense; to pay and defray all, and all manner of costs, charges, and expenses of the said lottery, or class, excepting the expense of drawing the same, and to draw the same in the city of Washington, in the presence of the said managers, and to finish and conclude the said drawing within two years from the date hereof, and to pay all the prizes within sixty days from the completion of the said drawing. It is further understood and agreed, by and between the said parties, that the said David Gillespie is to provide, at his own cost and expense, two competent clerks, to assist in the drawing of the said lottery, or class; and to execute and deliver, before the commencement of the drawing of the said lottery, or class, and within thirty days from the date hereof, to the said managers, a bond, with such security as may be approved by them, in the penal sum of 35,000 dollars, conditioned for the true, fair, and faithful drawing of the said lottery or class, and according to the said scheme; for the punctual payment of all prizes, and for conducting the said lottery or class fairly and honestly, and according to this agreement, and the true intent and meaning of the said acts of the said Board of Aldermen and Board of Common Council.'

The bond with security, as required by the above agreement, was given by Gillespie on the 28th of May, 1821.

On the 22d of the same month, an ordinance of the corporation was passed, authorizing the managers to appoint a president, whose duty it should be, in addition to the duties imposed by the ordinances of 1815 and 1819, to sign all contracts with the concurrence of a majority of the managers, and to sign all the lottery tickets, in every scheme or schemes sold by them. The 2d section of the ordinance allowed each of the managers of the city lotteries 3 dollars each day he had been, or should be employed; and the 7th section enacts that this compensation, 'except for the class now contracted for,' should be provided for and paid out of the proceeds of lotteries thereafter contracted for.

Under this authority, Thomas H. Gillis was appointed president, who signed the following ticket, No. 2929, on which the suit was brought, and which was endorsed, 'Undrawn 29th day over. D. Gillespie, per J. James.' The ticket was purchased by the plaintiff, from an agent of Gillespie, at Richmond, Virginia, and drew the prize of 100,000 dollars, in the fifth class of the lottery.

The drawing of the lottery was advertised in two newspapers printed in the city of Washington; in the National Intelligencer from the 18th of May, 1821, and in the Washington City Gazette from the 17th of July, 1821, until the completion of the lottery. These advertisements exhibited the scheme agreed upon between the managers and Gillespie, and annexed to their contract, gave notice of the time when the drawing would take place, of the number of days to be employed in the drawings, and that they would be completed as soon as possible, under the superintendance of the managers, whose names were annexed. To each of these...