Clark v. Mayor of Baltimore

• Decision Date: 25 June 1868
• Citation: 29 Md. 277
• Parties: JAMES CLARK v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

29 Md. 277

JAMES CLARK v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

June 25, 1868

APPEAL from the Court of Common Pleas.

This was an action of assumpsit brought by the appellant to recover from the appellee the sum of $200 bounty, under OrdinanceNo. 8, of the Mayor and City Council of Baltimore approved 16th February, 1864.The facts of the case as agreed upon by the counsel of the respective parties are as follows:

The appellant, a colored soldier, enlisted at Baltimore city, in Company "G," Fourth Regiment of United States Colored Troops, (infantry,) a regiment raised in said city and credited and apportioned as a part of the quota of said city, under the call of the President of the United States for 500,000 men, dated February 1st, 1864, and he was enlisted and mustered into the service of the United States on the 11th of August, 1863, and continued therein until May 4th, 1866, when he was honorably discharged.He was recognized by the Governor of the State and the Assistant Provost Marshal General of the United States, for Maryland as a part of the quota of the city of Baltimore, under the call of the President, dated February 1st, 1864, for 500,000 men, and by said enlistment and by his being apportioned as a part of the quota of said city, the quota of troops required to be furnished by said city was thereby diminished to that extent.Official and satisfactory evidence that he had been mustered into the service of the United States, was received by the Register of the city of Baltimore, and that he was apportioned as a part of the quota of said city, under the call of the President of the United States as aforesaid, that call being referred to in OrdinanceNo. 8, of the Mayor and City Council of Baltimore of 1864, as "The late call of the President," also that he was honorably discharged from the service of the United States at Baltimore, May 4th 1866.He never received any bounty whatever from the city of Baltimore.At the time of the passage of OrdinanceNo. 8, of 1864, the city of Baltimore was not in a state of military siege, and there were no hostile troops in the vicinity of, and menacing said city, and the appellant was with his regiment in the field in the army of the Potomac, which was in the State of Virginia, and the services of said regiment were never required within the State of Maryland to repel any actual invasion of the State.When OrdinanceNo. 8, of 1864, was adopted, no part of the 1,500,000 dollars which the city of Baltimore was authorized to appropriate by the Act of the General Assembly of Maryland of 1861, ch. 75, was either used or appropriated.

The case was tried before the Court(GAREY, J.) without the intervention of a jury, and judgment was rendered for the defendant.Thereupon, the plaintiff appealed.

The cause was argued before BARTOL, C.J., STEWART, BRENT, MILLER and ROBINSON, J.

F. P. Stevens and Milton Whitney for the appellant:

The appellant was mustered into the service of the United States " as a part of the quota of the State,"he was recognized by the Governor, &c., as a part of the quota of the city of Baltimore, under the call of the President for five hundred thousand men; by his enlistment, and by his being apportioned, &c., the city's quota was diminished; he enlisted in a regiment raised in the city, and was credited as a part of its quota, he is, therefore, within the privisions of OrdinanceNo. 8, approved 16th February, 1864.The appellant being within the provisions of the Ordinance, a sufficient consideration existed to sustain the promise on the part of the city as prior to circular No. 3, of January 12, 1864, issued from the War Department, the party enlisting as a volunteer was entitled to be credited to such locality as he might elect.The consideration on the part of the city was the crediting of the party, whereby its quota was reduced.This credit is admitted.

The Mayor and City Council of Baltimore were legally empowered to pass OrdinanceNo. 8, approved 16th February, 1864.Act of 1861, ch. 1;Act of 1861, ch. 75, andAct of 1864, ch. 246.

The proclamations of the President of the United States of the 17th of October, 1863, and of the 1st of February, 1864, became law which the State of Maryland was bound to observe.The city of Baltimore was bound to furnish its quota, and in order to relieve its citizens from being subject to a draft, it was authorized, under the legislation heretofore referred to, to pass the Ordinance in question.Taylor vs. Thompson,6 Am.LawReg., N. S., 174;Speer vs. School Directors, &c. of Blairsville,50 Penn.StateRep., 159;Ahl vs. Gleim,52 Penn.StateRep., 432.

Robert D. Morrison and Wm. Henry Norris, for the appellee:

The Ordinance under which the appellant claims was never authorized or ratified by the Legislature, and is therefore inoperative and void.The only debt-creating powers of the Mayor and City Council are conferred by section 866 of the 4th Art. of Public Local Laws, and the Act of 1861, ch. 1, and the Act of 1861, ch. 75.The Ordinance in question was not authorized by this section, nor by the Act of 1861, ch. 75.Lowe vs. The Mayor, &c., of Marysville,5 Cal., 214.Nor was it authorized by the Act of 1861, ch. 1, because, although it is entitled "An Ordinance to provide for the defence of the city," &c., it does not to any extent provide for the defence of the city, as contemplated by the Act.Glenn vs. M. & C. C.,5 G. & J., 424;Mayor, &c., vs. Clunet, etal., 23 Md. Rep., 468.

The corporation was incompetent to pass such Ordinance, unless specially authorized by the Legislature.Booth vs. The Town of Woodbury,5 Am. Law Reg., new series, 202;New London vs. Brainard,22 Conn., 552;Clark vs. Des Moines,6 Am. Law Reg., new series, 146;13 Mass., 271;Mayor & C. C. vs.Porter, 18 Md. Rep., 301;Ferrin vs. City of Portland, 53 Maine, 458.

The State itself had no power to raise troops, and could of course confer no such power upon the corporation.Art. 1, sec. 10, Constitution of the U. S.;Rogers vs. Burlington,3 Wallace, 663, 665;Mitchell vs. Burlington,4 Wallace, 273.

Supposing the Ordinance to be valid, the appellant is not entitled to bounty under its provisions.No recovery can be had upon the common counts, as no contract can be implied where there exists an express contract.Stockett vs. Watkins' Adm'rs,2 G. & J., 341.So that a recovery must be had, if at all, on the special counts.These counts are on an express promise, and the plaintiff is not within its terms.Freer vs. Hardenbury,5 Johns., 273.

If the appellant were within the terms of the promise, the promise was one without consideration, as it was manifest that the appellant was mustered into the service of the United States prior to the making of the promise, and had no control over the question as to where he should be credited.The city of Baltimorewas entitled to a credit for the enlistment and mustering in of the appellant, by force of the provisions of circular No. 3, issued from the War Department, as well as by the very terms of the President's proclamation: "I further proclaim, that all volunteers received under this call, as well as all others not heretofore credited, shall be duly credited on, and deducted from, the quotas established for the next draft."

ROBINSON J., delivered the opinion of the Court.

On the 17th of October, 1863, the President issued a proclamation, calling upon the Governors of the several States, to "raise and have enlisted for the various regiments in the field, from their respective States, their quotas of three hundred thousand men."

The States failing to furnish their quotas under this call, the President issued the following order:

EXECUTIVE MANSION, Feb'y 1, 1864.

Ordered, that a draft for five hundred thousand men, to serve for three years, or during the war, be made on the 10th day of March next, for the military service of the United States, crediting and deducting therefrom, so many as may have been enlisted or drafted into the service prior to the 1st day of March, and not heretofore credited.

(Signed,)ABRAHAM LINCOLN.

By order of the Secretary of War.

E. D. TOWNSEND, Asst. Adj't Gen'l.

On the 16th of February, 1864, the following Ordinance was passed by the Mayor and City Council of Baltimore:

Section 1.Be it enacted and ordained by the Mayor and City Council of Baltimore, That the sum of six hundred thousand dollars, or so much thereof as may be necessary, be and the same is hereby appropriated to be used exclusively as a bounty fund, and to be paid to such persons as may have volunteered, as well as those who may volunteer, to fill any regiments, battallions and companies now in the field, heretofore raised in the city of Baltimore, or in the several regiments or artillery or cavalry companies raised, or to be raised, in the city of Baltimore, and have been or may be mustered into the service of the United States as a part of the quota of said city, under the late call of the President of the United States, for five hundred thousand men.

Section 2.And be it enacted and ordained, That every noncommissioned officer, private, bugler, drummer and fifer who may have volunteered, or who may volunteer, and who may be mustered into the service of the United States, in any of the regiments, or artillery or cavalry companies that have been, or that may be, raised in the city of Baltimore, and who may be recognized by the Governor of the State and the Assistant Provost Marshal General of the United States as a part of the quota of the city...