State, Use of Smith v. Turner , 101 Md. 584 ( 1905 )

This is an action brought in the name of the State for the use of William Smith, a deputy in the office of Barreda Turner, Clerk of the Circuit Court of Baltimore City, upon the official bond of said Turner to recover for services rendered by Smith as such deputy, in the performance of the duties of the office. The United States Fidelity and Guaranty Company is the surety upon said bond, the condition of which is as follows: "If the above bounded Barreda Turner, whilst he shall continue in the office of the Clerk of the Circuit Court of Baltimore City, shall faithfully perform all the duties now required of him by law, as such Clerk, then the above obligation to be void, otherwise to be and remain in full force and virtue in law."

The original declaration, after reciting the bond, alleged that one of the duties required of Turner by law was the appointment of proper deputy clerks, and the payment to them of proper salaries; that Turner appointed Smith as one of such deputy clerks, and agreed to pay him a salary of $1,040 per annum which was a fair and reasonable salary; that this appointment was duly confirmed by the Judge of said Court, and that the said salary was approved by the Comptroller o the State; that there was still due and owing to said Smith on said salary, the sum of $274, and an additional sum of $474 for recording, being necessary work of said office, and which sum said Turner promised to pay, but that neither of said sums had been paid though demand had been duly made on both defendants therefor. There was a demurrer to this declaration, and it appears from the appellee's brief, and the statement of appellant's counsel, that the ground upon which this demurrer was argued was the omission in the declaration to allege that Turner had collected a sufficient amount of fees as clerk to enable him to pay the balance of salary due and the amount due for recording. This demurrer was argued before JUDGE HARLAN, who sustained the same. An amended declaration was then filed supplying the omitted allegation in the former declaration, and this demurrer was sustained by JUDGE DOBLER, upon the ground that the payment of the deputy's salary and of the recording fees due him were not duties required of the clerk by law, and therefore not within the condition of the bond. Judgment was given against plaintiff for costs and this appeal was brought. When the case was called for argument in this Court, a motion to dismiss was filed, supported by affidavit of defendant's counsel, alleging that the demurrer to the amended declaration "was sustained by consent, and judgment on demurrer was entered pro confesso in open Court, without argument, and without the submission of briefs or consideration by the Court," and that the appeal was in violation of a rule of this Court prohibiting the hearing of any appeal from a pro forma order, judgment or decree. It appears however from a counter affidavit of Mr. Cook, counsel for appellant, to which no response has been made, that on deciding the demurrer to the original declaration JUDGE HARLAN held that the payment of salary and recording fees to the deputy was not a duty required of the clerk by law, and that when the demurrer to the amended declaration was set for hearing before JUDGE DOBLER, who in the meantime had succeeded JUDGE HARLAN in the City Court, he stated to counsel that he would feel compelled to follow the decision of JUDGE HARLAN, as it was conceded the amendment did not meet the point decided by JUDGE HARLAN adversely to the plaintiff, it being the practice among the Judges of the Supreme Bench of Baltimore City to follow a ruling made by any one of said Judges until the same is reversed by the Court of Appeals; this affidavit not being replied to, or controverted in argument, the order of JUDGE DOBLER sustaining the demurrer to the amended declaration cannot be regarded as a pro forma order, but as the adjudication of the question argued before JUDGE HARLAN, and as the result of that argument. The motion to dismiss must therefore be overruled.

The only question in this case is the liability of the surety, and this must depend upon the language of the bond. It is familiar law that the contract of a surety upon an official bond is subject to the strictest interpretation. Archer v. State,74 Md. 450; Howard County v. Hill, 88 Md. 120. The case last mentioned was a suit upon the official bond of Hill, as Secretary and Treasurer of the Board of County School Commissioners of Howard County, to recover money alleged to have been paid out by him without warrant of law, and in violation of his bond. The condition of the bond prescribed by sec. 67 of Art. 77 was "to pay over and apply all moneys that should come into his hands as treasurer, to such persons, and in such manner, as the board mayunder the provisions of this article, direct." In the bond executed, the words we have italicised were omitted, and it was held the surety was not liable for payments directed by the board, but not warranted by that article.

There the effort was to read into the bond a condition, which ought to have been, but plainly was not written in. Here there is no such attempt. The language of the condition, "faithfully to perform all the duties required of him by law," is neither ambiguous nor equivocal. The bond however is silent as to what those duties are. They can be ascertained by reference to the Constitution and laws of the State and the established practice of the Courts in administering these laws. While the liability of the surety is not to be enlarged by mere implication, yet in the effort to ascertain what these duties are, a reasonalbe construction is to be given to the language of the statutes dealing with these duties, and the construction is not to be strained in order to effect a release of a surety, whose obligation is deliberately entered into, as a commercial transaction, and with the exclusive view to the pecuniary profit resulting from it. With these principles in view, we will now inquire what light is thrown upon the question to be determined by the provisions of the Constitution and laws of the State relating to clerks and their deputies.

Section 26 of Article 4 of the Constitution of Maryland requires the Clerks of the Circuit Courts of the several counties of the State to "appoint, subject to the confirmation of the Judges of their respective Courts, as many deputies under them as the said Judges shall deem necessary to perform, together with themselves, the duties of the said office, who shall be removable by the said Judges for incompetency or neglect of duty and whose compensation shall be according to existing or future provisions of the General Assembly;" and section 37 of the same Article declares that "the provisions of this Article in relation to the appointment of deputies by the Clerks of the Circuit Courts in the counties shall apply to the Clerks of the Courts in Baltimore City."

Sec. 45 of Art. 3 of the Constitution limits the compensation of Clerks of Courts and Registers of Wills in the counties to $3,000 a year and of the same officers in the city of Baltimore to $3,500 a year, over and above office expenses and compensation to assistants, and then provides that "such compensation of Clerks, Registers, assistants and office expenses shall always be paid out of the fees or receipts of the offices respectively; but special protection is given to the Clerks of the Courts in Baltimore City by sec. 37 of Art. 4, already referred to, which provides that the salary of each of said Clerks "shall be payable only out of the fees and receipts collected by the Clerks of said city," and by sec. 12 of Art. 17 of the Code, which provides that whenever the receipts of any Clerks of the Courts of Baltimore City are insufficient "after the payment of all necessaryexpenses, to pay such Clerk the salary provided by the Constitution, and said Clerks, or any of them, shall, under section first, Article fifteen of the Constitution, have paid to the State any sum or sums of money as excess, after retaining his salary, such excess is hereby appropriated to the payment of the salary or salaries so in arrear until each of said Clerks shall have received the full amount thereof; and it shall be the duty of the Comptroller of the State to draw a warrant upon the State Treasurer for the payment of said arrears out of the said excess, not to exceed the amount so in arrear, and not to exceed the whole amount of said excess paid into the treasury of the State."

Sec. 16 of Art. 17 requires the Comptroller from time to time, "to limit and fix the compensation of the assistant clerks or deputies to be employed by the several Clerks of the Courts of this State," and provides "that no account for compensation for services of any assistant clerk, deputy or other person employed in performing any of the duties pertaining to the office of any such clerks shall be allowed, until such assistant clerk or other person employed shall have certified under oath that the same services have been performed, that he has received the full sum therein charged to his own use and benefit, and that he has not paid, deposited or assigned, nor contracted to pay, deposit, or assign any part of such compensation to the use of any person, or in any way, directly or indirectly paid, or given, or contracted to pay or give any reward or compensation for his office, or employment, or the emoluments thereof."

Sections one to forty-one of Article 17 of the Code of Public General Laws are included under the head of "General duties of Clerks." These enumerate many specific duties and powers of the Clerks, but there is nowhere any express declaration of the duty to pay his deputies the salaries fixed by the Comptroller.

The only express reference in those sections to the liability of the Clerk's official bond is in sections nine and fifteen, which provide that it shall be answerable for all public money received by him, and the emoluments of his office over and above the sum prescribed by the Constitution; but it would have been liable without those provisions, since the duty so to pay over is fixed by other provisions of law, and no sound argument can be deduced from the absence of any express declaration of the liability of the bond for a deputy's salary, but no express enumeration of this duty is necessary.

The true theory is, we apprehend, that the bond is designed for the protection of all who are concerned in the performance of the ministerial duties of the Clerk, whether such duties are, or are not specifically enumerated as such, and it is for that reason that the bond has been held liable for failure to transmit a transcript in time, as in Collins v. McDaniel, 66 Geo. 203; and for failure to enroll a judgment, as in Strain v. Babb, 30 So. Ca. 342; and this was the view expressed by this Court inState, use of Whitehill, v. Carrick, 70 Md. 586, where the bond of a Justice of the Peace was held liable for failure to issue a writ of retorno habendo.

There is no discretion as to the employment of deputy clerks. Under the 26th section of Art. 4 of the Constitution, the duty to appoint is imperative. There is no absolute discretion as to whom the clerk shall appoint. He can appoint no one without the approval of the Judge of his Court, nor can he retain him if found by the Judge to be incompetent or negligent, and the only reason for these provisions is that the proper performance of the duties of the office, so many of which can only be performed with due promptness by the aid of deputies, may be guaranteed to the public. He cannot appoint a greater number of deputies than the Court deems necessary for the discharge of the duties of the office, and he cannot refuse to appoint such number as the Court may require. He cannot himself fix and limit the salaries to be paid to his deputies, but must allow such as the Comptroller of the State shall determine to be just and proper. The manifest purpose of this provision is to prevent the wrongful absorption of the receipts of the office by excessive salaries on the one hand, and to secure the services of competent persons by the assurance on the other hand of just and reasonable compensation. In no clerk's office in the State would it be possible for the clerk unaided to perform all the clerical work when and as it should be done for the protection of the public, and it was this consideration which caused the framers of the Constitution to embody in that instrument the duty of appointing deputies, and the power of confirmation and supervision conferred upon the Court. Deputies are not mere servants or agents of the clerk; they are agents and officers of the Court, being appointed, in the language of the Constitution, "to perform, together with (the clerks) themselves the duties of the said office." It would seem that the duty to employ deputies, at certain salaries fixed by the chief accounting officer of the State, should necessarily carry with it the corresponding duty to pay the salaries so fixed, and that the payment of salary, under such circumstances is as essentially an official act as the act of appointment. But this conclusion is not left to mere inference. Section 12 of Art. 17 of the Code, already quoted herein, in providing as it does that "whenever the fees or compensation of any of the clerks of Baltimore City shall, after the payment of all necessaryexpenses, fail to pay such clerk the salary provided for by the Constitution" that such deficiency shall be made good from the Treasury of the State in the manner provided in said section, in effect dedicates the receipts of the office primarily to the payment of all necessary expenses, chief among which are the salaries of deputies, and forbids the clerk to appropriate any of these receipts to his own salary until after such expenses are paid. Until payment of such expenses, the receipts of the office are public moneys in his hands to be applied to such payment, and his bond, in reason and justice is as much answerable to the deputies who are entitled to so much of those receipts, as it is to the State for any excess of receipts over and above such expenses and his own salary, and this view is confirmed by section 16 of Art. 17 of the Code which forbids the allowance of any account for compensation for services of any deputy until he has certified under oath that he has actually received for his own use and benefit the full sum charged.

We cannot therefore doubt that payment of the salaries of deputies is a duty imposed by law upon the clerk and comes within the condition of the bond.

We are not influenced by the cases cited by the appellee to sustain his position. In Brown v. Phipps, 6 Smedes Marshall; 54, and in Commonwealth v. Swope, 45 Pa. St. 536, it was held, in the first case, that a tax collector's official bond, and in the other a sheriff's bond, was not liable to the publishers of a newspaper, for printing advertisements of sales, though the law required such advertisements. There is a very obvious distinction between those cases and the present case. The printer is not a deputy doing the work of the tax collector and sheriff, but is doing work which only a printer and publisher can do, and doing it for the collector and sheriff. He does not need the protection of the bond, because he can, if he thinks it necessary for his protection, demand his proper charge for such service when ordered. The work of a deputy working on a salary is not capable of such apportionment and demand and there is no parallel between the cases.

The case of Crocker v. Fales, 13 Mass. 260, it must be conceded, tends to support the appellee's contention, but it is not satisfactory to us. In that case the clerk's bond was held not liable for the fees of the crier of the Court though by the fee bill it was made the duty of the clerk to receive the fees of the crier for his use, and the condition of the bond was that the clerk should "well and truly discharge all the duties of the office." CHIEF JUSTICE PARKER said that the contention that the duty to pay was concurrent with the duty to receive "would be a just conclusion if we were satisfied that the Legislature, in requiring a bond in this form, intended to secure to individuals an idemnity for such omissions by the clerk as would be injurious to them," but upon consideration of the condition of the bond and of the statute upon which it was founded, the Court concluded such was not the intention of the Legislature. Our examination of the present case, as we have said, leads us to the conclusion that our law makers intended this bond to protect the deputies in the payment of their salaries.

We are sustained in this conclusion by the view expressed inWeisenborn v. The People, 53 Ill. App. 32, in which the clerk's bond was held liable to the sheriff for his fees collected by the clerk, and also by the case of the News PublishingCompany v. Gould, 1 Pennewell (Del.) 366, in which it was held that the statute made the sheriff, in advertising sales, the instrument of the Court and that as such his recognizance as sheriff was security for the advertising. We are not to be understood as adopting or approving that decision as applied to sheriff's advertisements in this State as we have already intimated in this opinion. We refer to that case and the general view expressed therein, in support of the conclusion we have reached in this case upon its own facts and circumstances.

We perceive no ground for any distinction between the arrears of salary and the charge for recording. The work in each case was work done in the performance of the duties of the office and this we think is the test of liability on the bond.

We do not think it was necessary to allege in the declaration the sufficiency of the fees received for the maintenance of the office. The scheme of the system established by law for this purpose raises a prima facie presumption of its sufficiency, and insufficiency should be pleaded and proved by the defendant. A sound analogy is found in the rule of criminal pleading which only requires an exception to be negatived when so incorporated in the enacting clause that the one cannot be read without the other.

There was error therefore in sustaining the demurrer to the original as well as to the amended declaration.

For these reasons the judgment will be reversed.

Judgment reversed and new trial awarded.

(Decided June 23rd, 1905.)

McSHERRY, C.J., dissented.