Banks v. State

Alvey, J., delivered the opinion of the Court. The sole question in this case is, whether the appellant, as register of wills, for the City of Baltimore, is entitled to retain the five per cent, commission allowed by law on the amount of taxes on collateral inheritances, and on commissions of executors and administrators, received by him, over and above the salary and expenses of his office allowed by the Constitution of the .State? Or, in other words, whether he is entitled to receive and retain the five per cent, commission on the taxes mentioned as extra compensation, and not as fees or receipts of his office as. register of wills, and for which he is required to account? This question, we think, is clearly answered by a simple collation of the provisions of the Constitution and of the statute law of the State upon this subject. ³⁰⁷ The Constitution, Art. 3, sec. 45, provides that the amount of compensation to the clerks of Courts and registers of wills shall not exceed, in the several counties the sum of $3000 a year, and in the City of Baltimore $3500 a year, over and above office expenses, and compensation to assistants; and further, “that such compensation of clerks, registers, assistants and office expenses, shall always be paid out of the fees or receipts of the offices, respectively.” A similar provision was embodied in the Constitution of 1851 (Art. 3, sec. 40,) and that of 1864 (Art. 3, sec. 44.) In Article 15, sec. 1, of the present Constitution, it is provided that “ Every persou holding any office created by or existing under the Constitution or laws of the State, (except justices of the peace, constables and coroners,) or holding any appointment under any Court of this State, whose pay or compensation is derived from fees, or moneys coming into his Ibands for the discharge of his official duties, or, in any way, growing out of, or connected with his office, shall keep a book in which shall be entered every sum, etc., received by him, or on his account, as payment or compensation for his performance of official duties,” etc.; a copy of which shall be returned to the Comptroller, etc. “And each of the said officers, when the amount received by him for the year shall exceed the sum which he is by law entitled to retain, as his salary or compensation for the discharge of his duties, and for the expenses of his office, shall yearly pay over to the Treasurer of the State the amount of such excess,” etc. The section further provides, that if any officer shall fail to comply with the preceding provision, for the period of thirty days after the expiration of each and every year of his office, the office shall be deemed to be vacant, and the Governor of the State shall appoint to fill the same.

Corresponding provisions, though not so specific and extended, are found in the Constitutions of 1851 (Art. 10, sec. 1,) and of 1864 (Art. 12, sec. 1.) ³⁰⁸ It was by the Act of 1844, cb. 184, that the commissions allowed to executors and administrators were first taxed; and by tbe Act of 1844, ch. 237, that collateral inheritances were first taxed, for revenue to the State ; and by those Acts, and the supplements thereto, it was made the duty of the several registers of wills, to receive, and to account for to the treasury of the State, the taxes thus imposed. The official bonds of the registers were made liable for the taxes received; and, by the Acts of