Gregg Township v. Jamison

The opinion of the court was delivered, July 3d 1867, by Agnew, J. — John B. Ream, one of the supervisors of Gregg township, was called for the defence to testify that he had not consented to the payment of bounties, and being asked on cross-examination whether he had not stated he had assented, in presence of Neese and others, replied that he did not remember. Neeso was called to prove the conversation, and the defence objected to the evidence as incompetent to contradict Ream, and as immaterial and irrelevant. It was not immaterial or irrelevant, for it went directly to the vital question whether the supervisors had officially offered a bounty to those who would put in suhsti [472] tutes. Being material, 'the right exerted on part of the plaintiff to contradict Ream by his own statements made at other times and places, referred to in his cross-examination: 1 Stark. Ev. 183 ; 1 Greenl. Ev. § 462 (3.) It is supposed the case is changed by the answer of the witness that he did not remember, and Stockton v. Demuth, 7 Watts 39, and Brice v. Clark, 8 Barr 301, are cited. Neither of these cases supports the position. In the latter, though not stated, it is manifest from the judge’s mode of disposing of the exception, the inquiries must have related to immaterial matters. But here the witness was called to deny his personal participation in a matter positively proved by the opposite side, and vital to the issue, and had followed up his denial by stating a want of recollection of his own statements to the contrary of his testimony. Certainly a witness who is afforded an opportunity of explanation cannot escape from the contradiction of his former statements, in relation to the same matter, by his want of recollection of them; otherwise it would lie in his power always to turn aside the means of contradicting him by merely alleging a want of memory. The less credible he is, the more likely would he be to forget everything likely to impeach his veracity or his memory. It is not reasonable to suffer a convenient forgetfulness to shelter a witness from contradiction, and I think the weight of authority is against it: 1 Greenl. Ev. note 1 to § 462. The next important question is, whether the supervisors could bind the township by their offer of a bounty ? This offer was made within one month after their election, but before they had taken the oath of office, and given the security required by law. The court below held them to be officers defacto, and capable of binding the township. Under the Act of 15th April 1834, § 81, supervisors are elected “ to serve three years.” No provision is made for holding over until successors are duly qualified, That none was intended is manifest from the provision for the township treasurer and clerk in the same section. The supervisor is in office by the election to fill it, but before he enters upon the duties he must take an oath of office : sec. 86. The Act of 16th March 1860, requiring bond and surety, treats the supervisor as in office, for his office is to be declared vacant and the court to appoint another to fill it if he fail to give the security in one month after his election. If any one qualifies he can act for the other till the court appoints, and if none qualify, the former supervisors can act till appointment. Until the month has elapsed, it is manifest therefore they are supervisors defacto. “ An officer de facto, says Justice Sergeant, in McGargell v. Hazelton Coal Co., 4 W. & S. 424, seems to be a person who is such by color of election, though inelegible, or though the office was not vacant. Lord Ellenborough defines an officer de facto to be one who has the reputation of being the officer he [473] assumes to be, and yet is not a good officer in point of law. And Mr. Justice Story, in The Bank of the U. S. v. Dandridge, says, persons acting publicly as officers of a corporation are to be presumed rightfully in office.” Lewis, C. J., in Commonwealth ex rel. Bowman v. Slifer, 1 Casey 30, a case in point in this respect, said: “ But for the period during which he (Genl. Bowman) performed the duties of the office without having given the required security, he was not an officer de jure. He was merely an officer de facto. Plis acts were good so far as others are concerned.” In Brunott v. McKee, 6 W. & S. 513, it is said that the 86th section of the act of 1834, relating to the oath of office, is only directory, as it does nod say that the acts of the officer shall be void for want of compliance with it. See also Kingsbury v. Ledyard, 2 W. & S. 37. Heckman and Beam being supervisors de facto, by election and by the expiration of the term of office of the late supervisors, their acts were binding on the township. There is abundant authority for this: Commonwealth v. Slifer, supra; Clark v. Commonwealth, 5 Casey 137; McGargell v. Hazelton Coal Co., 4 W. & S. 424; York Co. v. Small, 1 W. & S. 315; Neale v. Overseers, 5 Watts 538; Keyser v. McKissan, 2 Rawle 139; Riddle v. County of Bedford, 7 S. & R. 386. Another question in the court below arose upon the 3d section of the Act of 25th August, 1864. That section allows a bounty to “ any person liable to draft in any ward, township, or district, (who) shall furnish and have mustered into the service of the United States for the term of one year or longer, a suitable substitute, credited to the ward, township, or district.” The plaintiff in error thinks the act was intended to embrace only enrolled men, not yet drawn from the wheel, who voluntarily put in substitutes— that after his name is drawn the person is drafted and not “ liable to draft,” in the words of the act. This is too narrow a view. The term liable to draft refers to the whole process of drafting into service, and not merely to the drawing of the name from the wheel. This is merely a preliminary, for whether the person whose name is drawn will be actually drafted depends on his position upon the list of names drawn and the exemptions allowed; 50 per cent, be added in the drawing to the quota or number to be called into service. We must consider the purpose of the act also, which was to allow a bounty to him who had furnished a substitute, and thereby procured a credit for the township upon its military quota. The substitute, himself, is a volunteer, and when he has been paid by the employer, and the township has thus secured a credit, it was thought right that the person who had paid him should be refunded. In merit the substitute had the qualification of the volunteer, and in benefit the township had the advantage of the credit and the payment of the employer. The term “liable to draft,” was to limit the liability of the township, other [474] wise it might he called on to pay bounties for substitutes beyond its quota. Thus far we think the court below was right in its rulings. But the sixth assignment of error brings up a question not submitted to the jury, and yet one which the jury, on the evidence, was bound to pass upon; and which would, if found for the defence, have been fatal to the plaintiff’s right to recover. The general rule of this court is not to reverse, unless the point is distinctly made in the court below; but there are cases where a charge is manifestly inadequate to the case before the court, and which therefore necessarily misleads. This case is one of that character; and as a number of other cases are said to be depending on the decision of this, it would be unjust to the township to suffer this case to be decided upon a partial presentation of it. The evidence shows that it was resolved at the public meeting, which Heckman, the supervisor, attended, to pay those who would procure substitutes a bounty of $500, of which $300 should be paid by the township and $200 by subscription. The defence proved that, at an adjourned meeting which the plaintiff attended, owing to information brought from Harrisburg in reference to substitutes, the conclusion was come to that it would be useless to put in volunteers. The president announced publicly that every one must shift for himself, and the meeting adjourned over till Monday for the purpose of paying back the subscriptions, and that they were refunded. This was on the 11th of March, and it was not until the 8th of April following the plaintiff put in his substitute. There was no evidence that the supervisors took any step after this meeting to pay that portion of the $500. The township was to pay, while Ream, the other supervisor, took no personal part in offering the bounty, and certainly afterwards repudiated the offer on his own part. Erom this evidence the jury, most probably, must have drawn the conclusion that the offer of a bounty was withdrawn, and that Jamison, the plaintiff, did not rely on it in putting in his substitute. The court failed to submit this aspect of the case to the jury. Erom the manner in which the case was submitted, especially in the last paragraph, they must have thought that the withdrawal of the offer of the bounty with Jamison’s knowledge, and before he put in his substitute, made no difference. In this there was error — the court ought to have left it to the jury to find whether the offer was withdrawn; and if so withdrawn, to have instructed them to find for the defendant. The judgment is therefore reversed, and a venire facias de novo awarded.