Heckart v. McPhail

Le Grand, C. J., delivered the opinion of this court. This is an application for a mandamus. Whether or not it should issue, depends, in our judgment, upon the construction which ought to be placed upon certain acts of Assembly. The act of 1839, ch. 234, (after an allusion to a previous act,).in its first section, provides, that for the purpose of building an out-let lock at Bell’s ferry, opposite Port Deposit, on the Susquehanna canal, certain named persons were appointed commissioners, “with full power and authority, by a scheme or schemes of lottery, and the sales- thereof, or of the tickets ¹⁰⁵ therein, and without being subject to any tax whatsoever, to raise the sum of $30,000, free and clear of all charges and interest whatsoever.” By the act of 1842, ch. 74, the grant of the act of 1839 was consolidated with the State lotteries.

This act directed the Commissioners of Lotteries to pay to the commissioners named in the original act, or appointed in pursuance thereof, a ratable proportion, semi-annually, of the sum authorized by the original act. The act of 1852, ch. 113, gives to the Lottery Commissioner, under the present constitution of the State, the power of the commissioners under previous legislation, and by its fourth section provides, “that the Commissioner of Lotteries, on the maturity of each instalment for distribution, shall divide and distribute the same, pro rata, amongst the persons and bodies corporate or politic entitled, to receive the same.’'’’ The petition alleges, that in the year 1847, the commissioners mentioned in the act of 1839, contracted with certain parties for building the lock, and all moneys arising from the lottery authorized by the act of 1839- that the lock was duly built and completed, according to contract, and the contractors assigned their interest in and to said lottery grant to certain persons, in certain proportions, and that among these assignees is the appellant, with interest in the proportion set out in his application for the mandamus; that the Lottery Commissioners refused to recognize the assignees until some legal proceedings were taken to make a proper transfer of said lottery grant to the assignees, and a direction from a proper court to the commissioners, ordering the payment of the sum ascertained to be due to them. The petition then avers, that because of this refusal of the Lottery Commissioners, a proceeding was had in the Superior Court of Baltimore city, whereby it was decreed that the complainants “be entitled to receive from the Slate Lottery Commissioners, and their successors, such sum, semi-annually, as amounts to the proportion of said lottery grant, out of the proceeds of the State lotteries, until the said complainants receive the sum of fifteen thousand dollars and ninety-two cents, being the residue of the thirty thousand dol ¹⁰⁶ lars authorized by said act of 1839, ch. 234, to be raised, after deducting what has been paid to the said defendants, over and above their expenses. ” To this petition the defendant, admitting the passage of the several acts of Assembly, proceeds to give his opinion of the legal effect of certain acts, both of commissioners under the old constitution and those who were named in the legislation in relation to the grant for the lock, and also of the contractors and assignees. He avers that his predecessor did not recognize the obligation to raise, under the grant, more than thirty thousand dollars, and that, with this understanding of his duty, he made semi-annual distributions on this basis.

At the time the decree was passed, Messrs. Wharton and Dickenson were the commissioners. On the adoption of the new constitution, they were succeeded by Mr. Stewart, and he by Mr. Roberts, and Mr. Roberts by the present appellee. From this statement, it must be apparent the appellee, as Lottery Commissioner, has no personal knowledge of the earlier circumstances attending the grant; his knowledge, as such, is only derivable from his experience since he became commissioner, and from what the records of the commissioners who preceded him disclose.

His own personal knowledge, as such, only evidences the fact that the appellant received a sum on a basis which excluded “expenses” as ascertained by the decree, and did so under protest. His construction of the legal operation of the acts of the Superior Court,