Thomas v. Mahan

• Decision Date: 01 May 1827
• Citation: 4 Me. 513
• Parties: THOMAS, treasurer of the State, v. MAHAN & ALS
• Court: Maine Supreme Court

4 Me. 513

THOMAS, treasurer of the State, v. MAHAN & ALS

Supreme Judicial Court of Maine, Cumberland

May, 1827

THIS was an action of debt, brought by the Treasurer of State upon the bond given by the defendants as managers of the Sullivan-bridge lottery, pursuant to the private statute of 1826 ch. 430. The question at issue was stated in a case agreed by the parties; and was argued at this term by Adams for the plaintiff, and Orr and Greenleaf for the defendants. The facts appear in the opinion of the court, which was delivered at the succeeding term in this month, in Kennebec by

OPINION

MELLEN C. J.

On the 7th of March 1826, the legislature granted a lottery to John Sargent, to raise the sum of four thousand dollars, in consideration of expenses incurred by him, in erecting a bridge across an arm of the sea at a place called Sullivan ferry, and for finishing and keeping the same in repair; and by the act above mentioned, authorized the Governor and Council to appoint the managers of said lottery, removable at their pleasure; who, before entering on the duties of their office, were to be sworn to the faithful performance of said duties, and give bond, in the sum of ten thousand dollars, " conditioned for the faithful performance of all the duties of their office," and that they would " at such time, and in the manner by law provided, pay into the treasury of the State the whole proceeds of said lottery, after deducting for their expenses and services such sums as" should " be allowed them by the Governor and Council, not exceeding twenty-five per cent on the sum raised by said lottery." The defendants were appointed the managers accepted the trust; and after having been duly sworn, and having given bond as provided by the act, proceeded in the execution of the duties of their appointment; and it appears, from the facts before us, that in so doing, they carefully exercised their best judgment and discretion, and so conducted the business assigned them, as that the council have discovered nothing in their doings, which has induced them in the least degree to doubt their integrity and fidelity in the discharge of their duties. Still it appears that in the prosecution of the business by the managers, while there has been a gain, on the whole, a loss has been sustained on the tickets remaining unsold; and the question is, on whom that loss shall fall; or, to speak with more precision and limitation of language, we state the question in the very words of the counsel, who have signed the statement of facts before us. The words are,--" whether the managers are holden to pay into the treasury of the State the price of every ticket made in each class of said lottery, sold or unsold; or whether they are holden only for such tickets as, after using due diligence, they may have been able to sell." It will be perceived at once, by the terms in which the question is proposed and submitted, that there may be several questions growing out of a critical examination of the act, and connected with some unforeseen and unexpected consequences in the execution of the powers given to the managers. It may be inquired, who are to bear a loss like the one in the present case, and when will the business of the lottery be completed, if the managers are not by law holden to be liable on their bond for such loss? Other inquiries might be suggested, which might lead to some difficulties that were never anticipated at the time the act was passed; but with these suggested questions, or doubtful consequences, we have no connection. One question and one only, is by the parties submitted for our decision; and that is, whether the managers are obliged, by the condition of their bond, to pay into the State treasury the price of tickets unsold, and which, after using due diligence, they were unable to sell. Leaving all other questions, and the consequences to which they may lead, untouched, it will be understood, that our decision is confined to the single question stated by the parties.

The defendants are presented to our view as public agents clothed with certain powers, and under obligation to execute those powers with honesty and faithfulness, as well to the State, as to all persons interested in the lottery. To this extent the managers would have been bound upon the principles of morality and justice, independently of the condition of the bond on which this action is founded. Does this condition, upon a fair construction of it, go beyond such obligation, and subject them to additional liabilities and duties? In other words, does the act granting the lottery, impose the risk of its productiveness upon Sargent, to whom and for whose benefit it was granted; or does the act impose that risk upon the managers, who are regarded by it as merely disinterested public agents? If the risk is imposed on the managers, then it will result, that the fewer tickets in a class they are able to sell, the more certainly productive will be the lottery to Sargent, though it may be ruinous in its consequences to the upright and faithful agent. Before attempting to answer these questions by a careful examination of the several provisions of the act, it is proper to ascertain and decide, whether we are at liberty to travel out of the condition of the bond, and beyond the provisions of the act to which it refers, for a description of the duties of the managers, to obtain aid in arriving at a true construction of their import and intention; because it has been contended in the argument that the act of February 11, 1823, authorizing a lottery for the benefit of the Cumberland and Oxford Canal corporation, contains provisions more liberal in favor of the managers of that lottery, than are contained in the act of March 1826, which we are now considering; and hence it has been argued that the difference of phraseology in this latter act, is proof that a more strict, and a deeper accountability was intended on the part of the managers of this lottery, than in the Canal lottery. We might at once reply to this argument by saying, that as the Canal lottery is a private or special act, and is not presented to our consideration in the statement of facts, it is no part of our duty to take judicial notice of it; but when the cause was argued, we listened to all the reasons, which the counsel on both sides thought proper to urge, as well in relation to the Canal lottery act, as to the Sullivan -bridge lottery act; still, in the decision of the cause, it is a question of law, not of courtesy or expedience, how far we are authorized to seek the true construction of the latter act, by comparing its language and provisions with those of the former. It is unquestionably a correct principle, that public statutes, made in pari materia, should be construed as though their several...