Warfield v. County Commissioners , 1868 Md. LEXIS 6 ( 1868 )

Miller, J.,

delivered the opinion of this Court.

We have no difficulty in affirming the order' appealed from in this case. The appellant applied for a mandamun to compel the appellees to pay him a sum of money alleged to be in their hands, and due him as commissioner under the Act of 1865, ch. 146, entitled “an Act to provide for the completion of the restoration of the records and papers, destroyed or injured by fife, in the office of the clerk of the Circuit Court for Baltimore county,” and the only question wo have to consider arises upon the construction of this law.

Looking to the body of the Act, without reference to its title or the repetition of the title in the commissioner’s oath, we find its object w*as to complete the work of restoring the burnt and injured records and papers in that office, which had been begun under the provisions of previous laws, all of which inconsistent therewith wore thereby repealed.

The first section appoints the appellant “ commissioner of records for the purpose of restoring and re-establishing such of the records and papers, dockets and indexes in the said office, as have been either wholly or partially destroyed by fire,” and provides that he shall before he enters upon the discharge of his duties, take an oath “ that he will well and truly execute and perform the duties prescribed and required to be performed by me as commissioner under the Act entitled,” &c., setting forth the title. Subsequent sections define his1 powers and pi’escribe his duties. Ho is clothed with, power to summon parties interested and witnesses, and to impose fines for their non-attendance. The mode of restoration — what shall be done and by what evidence any record or paper wholly or partially destroyed shall be replaced- — is then particularly specified. Rules for each class of cases, that is, for the restoration of records, of deeds, of dockets, of judicial records, and of papers in any case at law or in equity pending or settled, when injured or partially or wholly destroyed, are established. He has power in certain cases to execute and record new and confirmatory deeds, and in case of dispute on any issue before him, an appeal from his order to the Circuit Judge, is'given.

Section 16 then enacts that he “shall be allowed for his services as commissioner, for restoring and completing the restoration of all the burnt records and papers as indicated in this Act, and recording and indexing and filing papers relating to .his qffice, the sum of two thousand dollars,” and that he shall monthly on oath, present his accounts for settlement 1 o the county commissioners.

Section 17 directs the county commissioners “to pay to said commissioner the amount due him monthly when it is proved by his own affidavit, and when said amount does not exceed one dollar and fifty cents for each paper restored and recorded according to the provisions of this Act and is not in the judgment of the county commissioners mere than a proportional part of the whole work agreed to be done by said commissioner,” and “ for the purpose of providing the means of carrying out the provisions of this Act” the county commissioners are authorized and directed to levy upon the taxable property of the county for the year 1865 the sum of $2000.

Section 18 provides for filling the vacancy “in the event of the death, resignation, or disability of said commissioner.” And Section 19 provides “that the whole time occupied in the execution of this commission shall not exceed one year.”

The appellant took the oath of office, entered upon the performance of his duties and continued therein for one year, when, the work of restoration being still incomplete, he was interrupted by the clerk of the county who resumed the control and custody of the records and books. During the year he restored 651 papers and was paid therefor by the appellees the sum of $976.50, on his accounts from time to time presented and sworn to. He now claims the balance of the $2000.

We see no ground on which this claim can be supported. From the whole body of the Act, and especially the 16th, 17th and 19th sections we think the intention is plain:

1st. That this commissioner should not act under his commission or hold his office for a longer time than one year, and that the sum to be paid him should not in any event exceed $2000.

2d. That this whole sum of $2000 might be paid him for his services at any time within the year, but only when ho had in the manner and by the means provided in the Act completed the restoration of all the burnt papers and records.

The law no where says he shall receive $2000 for one year’s services under the Act, and to give it such a construction would be doing violence to the plain import of the language of the 16th section.

3d. That during the rendition of the services under the-Act, and within the year monthly partial payments should be made to him before the work was finished, provided the-amount of each of such payments should not exceed $1.50 for each paper restored, and provided also the amount of each of such payments should not in the judgment of the county commissioners be more than such proportional part ©f the $2000,, as the work professing to be done when each account was presented, bore to the whole work to be done.

The law assumes that the sum of $2000 was sufficient compensation for the work of completing the- restoration of these papers and records, and that the county commissioners,, the local authorities, knew the extent of the injury by fire, how many records and papers had been totally or partially destroyed, how far the work of restoration had progressed under previous laws, and what was the number of papers to be restored or the amount of work necessary to be done in order to make the restoration complete. Each monthly account was, therefore, to be subjected to their judgment, and if the amount of it, whether for a greater or less number of papers, restored, did not in tlieir judgment, at the rate of $1.50 per paper, exceed that proportion of the $2000 which that number bore to the whole number to be restored, they were to pay him at that rate, but if it did they were to reduce the amount to the proper sum to preserve that proportion or in other words the amount of payment for any one month’s work must be such proportional part of the $2000 as the work done in that month is of the whole work to be done. We must assume that the county commissioners in paying the several accounts appearing in this record and amounting to $976,50 properly exercised their judgment upon each account. The appellant has therefore been paid all he is entitled to, for it is not pretended the work of restoration was completed by him.

It has been argued that this law is a contract between the State and the appellant, on which but one of two constructions can be placed, viz.: either first, that it is a contract to restore all these burnt papers and records in one year for $2000, a work which it is said was in its nature impossible of performance within one or any number of years, and therefore upon this construction the contract would be void, and the appellant bound to restore the money he has received; or secondly, and to avoid the harsh construction above stated, it must be construed as a contract to pay $2000 in monthly instalments for one year’s services thereunder. If by this it is meant to assert that this law is a contract binding on both parties and beyond legislative control, or which the Legislature could not modify or repeal without a breach of public faith, we do not assent to the position. It is simply a law creating for a limited period a public office, in which the public generally, and the people of Baltimore county especially were interested, filling it by legislative ajDpointment which the appointee could accept or not as he chose, or at any time resign, defining the powers and duties of the officer, providing and limiting his compensation, and prescribing the mode of its payment. Such a law it is perfectly competent for the Legislature at any time to modify or repeal. “Where an office is of legislative creation the Legislature can modify, control or abolish it.” Davis vs. The State, 7 Md. Rep., 151. If, however, it is only meant by this argument to assert that this law contains a contract on the part of the State, that the officer shall be paid for his services whilst acting under it, and whilst it remains unrepealed, we assent, but in this, as in all other such cases, the State’s contract Is that he shall be paid for his services only the sum and in the manner which the law specifies; what that is wo have already stated. We find nothing upon the face of this Act prescribing an impossibility as a condition upon which the $2000 was to be received, nor can we infer that impossibility from any thing disclosed in this record or inherent in the nature of the duties to be performed. We cannot say from any thing that now appears to us, it was impossible to complete in the manner and by the evidence prescribed in this Act, the restoration of all these burnt papers and records in one year, or that the county commissioners, to whose judgment this matter is left by the law, could not determine when the restoration was complete, and therefore, there is no necessity for considering what would be the effect of the existence of such an impossibility, as leading to possible injustice, contradiction, or absurdity in the construction we have adopted.

(Decided 1st February, 1868.)

Order affirmed.