Mayor of Baltimore v. Poultney

Bartol, J., dissented and filed the following opinion: The only questions presented by this appeal arise upon the prayers. The appellees, who were the plaintiffs below, asked two prayers which were granted, and the appellants four, which wore rejected. In the argument ef the causo'’m this Court, two principal objections have been made to the prayers ef the appellees : the first raising a question of law, growing out of the construction of the Code defining the powers and duties of the Police Commissioners; and the other based upon the alleged want of evidence to support the hypothesis of the ■appellees’ prayers. These questions will be considered in the order above stated. Assuming that there was evidence legally sufficient t® warrant the jury m finding the facts hypothetically stated in — 28 — the appellees’ prayers, I think there was no error in the instruction given by the Superior Court to the jury “that the defendant was liable in this action.” The specific objections to these prayers are clearly and concisely stated in the several prayers offered by the defendant, and may be more briefly examined by considering these last, in the order in which they were offered. The defendant’s first and second prayers are based upon the 818th section of the Code, vol. 2, Art. 4, which directs that the Board of Police Commissioners shall estimate in advance what sum shall be necessary, for each current fiscal year, to enable them to discharge the duties imposed upon them, and to certify the same to the Mayor and City Council of Baltimore ; and these last are required to levy, assess and collect the same with the other taxes, &c. It is supposed by the appellants that without such preliminary estimates, it is not in the power of the Board of Police Commissioners to bind the city to the payment of any debt they may contract, or expenses they may incur in the discharge of their duties in preserving the peace of the city, no matter what may be the exigency requiring, in their judgment, the employment of extraordinary means for that purpose. This, in my opinion, is too narrow a construction of the provisions of the Code— the requirement to furnish estimates in advance is directory only. By the 809th section the board is expressly authorized to raise “ for extraordinary emergencies such additional force as the exigency may in their judgment demand.” This power carries with it the power to arm and equip such “ additional force ” when raised as the board may judge necessary. For the costs necessarily incurred in this way, it is simply impossible that preliminary estimates could be made, because the emergency contemplated in the Code is an extraordinary one, involving expenditures that could not be anticipated or foreseen by the board. The whole subject of the police of the — 29 — city is placed under their management and control; their duties enumerated in the 808th section are most comprehensive and important, and the plain intent of the Code is to require that the means which, in their judgment, are necessary for the proper discharge of their duties shall be furnished and paid for by the city. By the 818th section, a limit is placed upon the amount of expenses they may incur, beyond the annual estimates, in case of emergency; and it is express-' ly provided that for such extraordinary expenses they may issue “ certificates of indebtedness in the name of the Mayor and City Council,” which are to be added to the assessment and levy for the ensuing year. But if the Commissioners fail to issue such certificates, or the city to make the levy, that would be no reason why a party furnishing goods or labor for the use of the city, upon the order of the hoard, should he deprived of his action therefor against the city. In the discharge of their duties, the board acts independently of the city authorities; but, by the 822nd section, it is declared that “ the Mayor and City Council shall be responsible for their acts in the same manner as if they were created or appointed by the Mayor and City Council.” These views seem to me to answer the objection presented by the defendant’s third prayer. Upon the subject entrusted to their control, the hoard is independent of and superior to the Mayor and City Council, (see sections 808, 817;) to purchase the articles furnished by the plaintiffs, and sued for in this case, no delegation of power from the city was necessary. The fourth prayer of the defendant appears to me to he based upon a mistaken view of the nature of this action.— The plaintiffs are seeking to recover from the city the price of goods purchased for them by authority of the Board of Police, for the use of the city, and it is immaterial to them how the goods may in fact have been applied or used. — 30 — The next question to be considered is, whether there was any evidence in the cause to establish the facts enumerated in the plaintiffs’ prayers. ' I agree with the majority of the Court, that this question is open for examination in this appeal, notwithstanding this objection was not specifically taken at the trial helow. The Act of 1862, ch. 15i, does not apply. Here the objection taken is not that the Court below failed to submit to the jury a material fact — if this were so, the defect in the prayer would be cured by the Act of 1862; but the objection now taken is that the Court erroneously submitted to the jury to find facts without any evidence to support them. This objection if well founded would require a reversal of the judgment. But I do not agree with the majority of the Court in the opinion that there was a total failure of evidence of any fact material to the plaintiffs’ case. It is clearly proved that the goods of the plaintiffs were delivered upon the order of Isaac R. Trimble, and though the proof is not positive, there is evidence from which the jury might well infer, that they were carried directly to the office of the Board of Police. There is also proof that the Mayor and Police Commissioners recognized the authority of Trimble, and that he was acting with their knowledge and approbation, in command of the additional force raised -by the authority of the Mayor and Board of Police for the preservation of the peace of the city in the extraordinary emergency then existing. In my opinion the judgment in this case ought to be affirmed. Goldsborough, J., delivered the opinion of this Court: Tho appellees sued the appellant for goods bargained and sold. This action resting upon either an express or implied assumpsit., the plea of the appellant puts the assumpsit in issue. — 31 — To create a privity of contract between Hie parties, and to enable the appellees to charge the appellant, it must appear that the goods alleged to have hocn sold and delivered, were sold and delivered to the defendant or to some person or persons authorized by the defendant to contract for it and on its behalf. The claim, which is the cause of action in this case, originated at a time of great excitement, owing to the incidents which had occurred on the 19th of April 1861, The alarm of the citizens of Baltimore appeared to indicate one of those extraordinary occasions on which the Police Board was required to call out an additional police force, according to the provisions of the 809th section of the 4th Article of the Code of Public Local Laws. No additional force was called out, and if; appears from the evidence, that at the time when the goods charged in the appellees’ account wore taken, their store was in the peaceable possession of the regular police. Here the direct agency of the Police Board seems to have ceased, and Isaac E, Trimble, who assumed the title of Major General, organized a military force, and the goods of the appellees were procured by his orders. They were selected by Grafton D. Spurrier about the 25th of April, he officiating in the capacity of aid to Gon’l Trimble. They were packed in boxes and taken from the appellees’ store by William Key Howard, another aid of Gen’l Trimble, and carried towards the office of the Police Board. One witness testified that he saw at their office boxes with the name of Poultney & Trimble on them, hut did not know what they contained. When Gen’l Banks became military commander of the city, OoL Kenley was appointed Provost Marshal and took possession of the office of the Police Board, and while he was in possession, persons wTere seen to como from the office with, arms, but whether those arms were a portion of those taken from — 32 — the store of the appellees, or whether the persons having them -were a portion of the police force, is not disclosed by the evidence. There is-some evidence that Gen’l Trimble was acting in concert with the Mayor and Police Board, but not under their control. It becomes important to determine in this connection, whether the power conferred on Gcn’l Trimble by the Police Board, if it was bestowed, was conferred by authority of the Act under which the board was organized. If the emergency had arisen, such as is provided for in the 809th section of the 4th Article, then by the 816th section of the same Article, the board had the power to call on the sheriff of the city whose duty it is made to summon thq posse oomitatus to aid in preserving the public peace under the direction and control of the board. By the same section it is further provided, that in case the board shall deem it necessary, they may call on any officer of any military force in the city of Baltimore, organized or existing under the laws of this State. As Isaac R. Trimble is not shown to be in any way connected with such organized or existing force, we can find no warrant of law for his act in taking the goods in question and having them charged to the appellant. But there is another objection to this claim of equal or greater weight than the one we have been considering. The whole duty of preserving the public peace within the city of Baltimore, with other kindred duties, being imposed upon the Board of Police, by the law (which is tobe construed strictly, as it is in derogation of common right,) they are required by the 818th section of Article 4, to estimate annually what sum of money will be necessary for each current fiscal year, to enable them to discharge the duties imposed on them, and forthwith certify the same to the Mayor and City Council, who are required, without delay, specifically to — 33 — assess and levy such amount as shall bo sufficient to raise the same, clear of all expenses and discounts, &e. By another provision in the same section it is further enacted, “ that in case the amount so as aforesaid to be estimated by the said board shall, from any unforsoen cause, prove insufficient for the necessary expenses of the current year, the said board are hereby authorized and empowered to issue certificates and raise money therefrom, as hereinbefore provided, to meet the said emergency; provided, that no such additional issue shall exceed the sum of thirty thousand dollars in any one year.” It is apparent from the reciprocal obligations and restrictions imposed on the Board of Police and the appellant by this section, that the hoard had no power to have charged to the appellant any claim not embraced in their estimate, and there is no evidence in the record, that this claim was so embraced, nor could they delegate that power to Gon’l Trimble. If the claim arose out of the exigency heretofore spoken of, then it was the duty of the board to have paid it out of the money raised by the issue of their certificates.— They, alone, having the authority to disburse the funds incident to their office. But it is contended that the appellant is responsible for the claim in question because, by ordinance 22 of 1881, an appropriation of £500,000, was made is for the defence of the city against any danger that may arise out of the present crisis.” That the articles composing the claim were military stores, such as wrore appropriate to the defence of the city. But the Act of 1861, eh. 2, confirming this ordinance, expressly provides that the appropriation shall be expended under the direction of the Mayor of the city, and we find no evidence in the record, to show that the claim of the appellees was either recognized or sanctioned by the Mayor. We now proceed io consider the prayers of [lie appellees, which were granted, and those of the appellant, which were .roil'd od. — 34 — The appellant objects to the prayer granted by the Court at the instance of the appellee, because there was no evidence in the cause to authorize the hypothesis on which it purported to be founded. The appellee insists- it is too late to. raise- the objection, and relies on section 12, Article 5 of the. Code, amended by the Act ofT86-2, ch. 154, It enacts “that, the Court of Appeals- shall, in no case, decide any- point or question which does not appear by the record to have been tried and decided by the Court below," but no prayer ox-instruction, shall b.e deemed defective by reason- of any assumption therein of any fact by said Coux-t, or because of a question of law having been thereby submitted to the jury* unless it appeal's from the record that such objection was, taken at the trial.”' Though, in our opinion, the Act of 1862 is not applicable to the case at bar, it may be pi'opei' to say* that the first branch of this Act is but a re-enaetmont of a. former Act, codified originally, in see. 12, Article 5. “ The assumption of a fact by the Court” is materially different from giving instructions to the jury without any evidence to support them. To assume a fact is to state as proved that which is to he proved* as if the jury find “that after the sale,” assumes the fact of the sale, was therefore erroneous. 3 Md. Rep., 146. But to instruct the jury upon an hypothesis of which there was no evidence, is to leave them to assume or find that for which there was no foundation. The errors, though closely similar, are by no means the same-. The one is generally incidental and casual* the other is fundamental, deliberate and conclusive, and lias always been held to bo error for winch the judgment would he reversed 8 Md. Rep. 118. 6 Md. Rep. 88. The minor error was intended to bo cured by the amended Act, but the greater, in our judgment, was not included. The appellant’s third prayer expressly called on the Court below to say there was no evidence in the cause of any dole35 ¿gallon of authority from the Mayor and City Council to the Police Commissioners to purchase the goods in question. (Decided May 16th 1866.) The Board of Police are declared by law to be a constituted ©/uthority of the city of Baltimore to the same effect as if created and appointed by the Mayor and City Council. Code, Art. 4, sec. 822. They, or-a majority ©f themrconstitute a quorum. They are required t© hate a common seal, to appoint a treasurer, to keep a Ml journal of 'their proceedings, and cause their receipts and disbursements of money to be -faithfulljr kept and entered in books provided for that purpose. Secs. 806, 821. They are authorized and required to issue certificates for their indebtedness, which are made receivable for taxes, provided, their certificates shall not exceed their estimated expenses more than §30,000 in one year. All these provisions indicate that, like other corporations, they must act through some authorized agent having the authority of a majority of the Board. No journal is produced, or other evidence in writing offered to show the 'connection between Gen’l Trimble and the Police Commissioners, and to constitute him the deputy of a deputy without ¡some such evidence of the assent of the majority of the Board, would be carrying the doctrine of implied agency to a most '-dangerous and destructive extent. See Mayor and City Council of Baltimore vs. Reynolds, 20 Md. Rep., 1. After a careful analysis of the testimony, a majority of the 'Court think the Superior Court erred in granting the prayers -of the appellees, and in rejecting the first, second and fourth prayers of the appellant. Judgment reversed,,