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The act having been passed, the City of Boston was entitled to the credit of the men contained on the list copied from the books of the receiving ship, without paying a dollar for them to anybody. The city had no authority to pay for them. But it is said that by having Mr. Burrill's list to put in, the city was saved from the impending draft in September following. That is a mistake. If Mr. Burrill's list had not been put in at all, the city would have had a surplus over all calls in September. The credits which would have been given on the lists sent in by the Aldermen from the several wards, and the proportion of credits given from those at large, would have accomplished this result.
W. H. McCartney, who was Provost Marshal at one period during the war, testified before the Circuit Court that the deficiency in the whole city on the 31st of August, 1864 (before the naval credits were allowed), was 2,111 men. The lists sent in by the Aldermen contained 2,000 names. Taking the statement of Mr. Sanderson (Mr. Burrill's witness), that only fifty per cent. would have been credited on these lists, and we have 1,000 men towards the deficiency. The official record shows that after the claims of all the cities and towns had been allowed, including those on the Burrill list, so called, there were 7,067 men whose names were found on the books of the receiving ship, and who were not claimed by any place. They were, accordingly, divided among the cities and towns in proportion to the numbers to be furnished by each. On this apportionment at large, Boston got 1,072 credits. Now, had the Burrill list been discarded, and only 1,000, instead of 5,224, been credited directly to the city, there would have been 4,224 additional men to apportion among the cities and towns, and of that number, Boston would have got over 600 men. We have, then, 1,000 on the Aldermen's lists, 1,072 from the actual distribution at large, and 600 on the distribution from the surplus on Burrill's list, making 2,672 credits, an excess over all deficiencies of 561 men. This is based upon the statements of Mr. Burrill's own witnesses.
The offer made at that time, by the Mayor and a committee of the Aldermen, to compromise the claim by the payment of $125,000, is urged as one reason why Mr. Burrill should be paid something now.
The circumstances under which the offer was made deprive it of all weight. Neither the Mayor nor the Aldermen associated with him believed that Mr. Burrill had rendered any service which entitled him to that sum ; but they did believe that they had committed the city, or themselves, to such an extent that Mr. Burrill would be able to recover in a court of law.
There are some other points which might be urged with a good deal of force against this claim. For instance, the quota referred to in the writing given by the Mayor was the quota then existing, and which was filled by regular enlistments before any of the naval credits were given. The quota which the naval credits went to fill (and which would have been filled, as we have shown, without Mr. Burrill's lists) was the one assigned under the call made by the President, July 18, 1864, for 500,000 men.
Then, as to the official certificate, which Mr. Burrill was to present before getting his pay, the Mayor states most emphatically that he never waived it.
These might be called technical points, and we do not care to bring them into the case at all. Since the naval credits were given, Mr. Burrill's course has been pretty well known. He first proposed to have the whole amount under his contract, or nothing. He brought a suit before the Supreme Court of the State, sitting in another county, and it was thrown out. He then went to New Hampshire, and, claiming to be an inhabitant of that State, brought another action in the Circuit Court of the United States. The court, Judge Clifford presiding, decided there that the plaintiff was
not entitled to recover in any view of the case, either under the contract or for services rendered. It should be understood that the suit was thrown out in both cases without any evidence being offered in behalf of the city.
Then Mr. Burrill came to the City Council, and, by dint of perseverance, succeeded in getting an order passed, in 1870, authorizing the payment of $40,000 to him. Before the payment was made, however, an injunction was obtained by eleven tax-payers. Mr. Burrill then went to the Legislature, and, on an ex-parte statement of his case, obtained the passage of an act to the effect that the City Council might, if it saw fit, pay him the sum of $40,000. Now, whether this act is constitutional or unconstitutional, it does not affect in the slightest degree the duty or responsibility of the city. It does not save the credit of the city if Mr. Burrill is entitled to the whole amount under his contract; and, on the other hand, it does not make the city liable for a part if there is nothing due.
Believing that, in the language of the eminent judge who presided at the trial in the Circuit Court, Mr. Burrill" is not entitled to recover in any view of the case,” the undersigned would recommend, that the petitioners have leave to withdraw.
LEONARD R. CUTTER,
The undersigned assents to so much of the foregoing report as states that Mr. Burrill should be paid the whole amount due under his contract, or nothing. He believes that the Mayor was acting with full knowledge of Mr. Burrill's intent to procure credits, and not new recruits; and that the law did not sanction the payment which he contracted to make for such credits. The Mayor of the city, as the chief executive officer, having made an illegal contract, the simple question to be decided is, did the Mayor make such a contract in good faith, and, if he did, and Mr. Burrill performed his part of the contract, and the City of Boston had the benefit of it, whether the City Council will accept the action of the Mayor, or repudiate it?
By the ninth section of an act, approved February 24, 1864 (Chap. 13, Acts 38th Congress, 1st session), it was provided, that all enlistments into the naval service of the United States, or into the marine corps of the United States, that may hereafter be made, of persons liable to service under the act of Congress, entitled " An Act for enrolling and calling out the national forces, and for other purposes," approved March third, eighteen hundred and sixty-three, shall be credited to the ward, town, township, precinct, or election district, or county, when the same is not divided into wards, towns, townships, precincts, or election districts, in which such enlisted men were, or may be enrolled, and liable to duty under the act aforesaid, under such regulations as the provost-marshal general of the United States may prescribe.
On the 25th of May, 1864, Mr. Hale introduced into the Senate a bill entitled "An Act to provide for the efficiency of the Navy," the third section of which was as follows:
That all enlistments into the naval service, or marine corps, during the present war, shall be credited to the appropriate township, precinct, or district, in the same manner as enlistments for the army."
The bill was referred to the Committee on Naval Affairs, and reported back on the following day, with certain amend