Bennett v. State

Collins, J., delivered the opinion of the Court. The appellant, Charles W. Bennett, County Treasurer of Wicomico County, was convicted by a jury in Wicom ⁴⁰⁸ ico County on three counts, being the twenty-eighth, twenty-ninth and thirtieth counts, of an indictment for the common-law crime of misfeasance in office. As a result of this conviction, the court passed a sentence that he be removed from the office fo Treasurer of Wicomico County and that he pay a fine of $100 and costs. From the judgment and sentence he appeals to this court.

The part of the twenty-eighth count of the indictment considered on demurrer is, “having been duly elected County Treasurer for Wicomico County, and having duly qualified as county treasurer, as aforesaid, and while then and there duly acting in the capacity as County Treasurer for Wicomico; County, unlawfully and negligently did countersign certain checks without the County Commissioners of' Wicomico. County having previously thereto duly allowed, approved and passed vouchers for the payment of any claims against Wicomico County for which said county treasurer countersigned said certain checks, as .aforesaid, and the said Charles W. Bennett, in the manner and by the means aforesaid violated the duty of his office while acting as county treasurer, as aforesaid, * * The part of the twenty-ninth count considered is that he “having been duly elected County Treasurer for Wicomico County, and having duly qualified as county treasurer, as aforesaid, and while then and there duly acting in the capacity as county treasurer, as aforesaid, unlawfuly ahd negligently did countersign certain checks without the County Commissioners of Wicomico County then and there duly allowing, approving and passing vouchers for the payment of any claims against Wicomico County for which said county treasurer countersigned said certain checks, as aforesaid, and the said Charles W. Bennett, in the manner and by the means aforesaid violated the duty of his office while acting as county treasurer, as aforesaid, * * The part of the thirtieth count considered is that he “having been duly elected County Treasurer for Wicomico County and having duly qualified as county treasurer, as aforesaid, and while then and there duly acting in the capacity ⁴⁰⁹ as County Treasurer for Wicomico County, unlawfully and negligently did countersign certain checks without the County Commissioners of Wicomico County having previously thereto duly allowed, approved and passed vouchers for the payment of any claims against Wicomico County for which said county treasurer countersigned said certain checks, as aforesaid, whereby the said Charles W. Bennett, in the manner and by the means aforesaid, enabled Rachel W. Day, clerk of the County Commissioners of Wicomico County, to take said certain checks into her possession and appropriate the same to her own use, and the said Charles W. Bennett, in the manner and by the means aforesaid, violated the duty of his office while acting as county treasurer, as aforesaid, * * *.” By Code, 1939, Article 25, Section 1, the County Commissioners are given charge and control of the county property, and by Section 9 are directed to assess and collect taxes for county expenses. Section 207 of Article 23 of the Code of Public Local Laws, 1930, of the county, provides that money duly deposited shall only be drawn “upon the check of the president of the county commissioners, countersigned by the treasurer, in payment of debts and accounts due by Wicomico County, duly approved and passed by said county commissioners and by them ordered to be paid.” This was more or less a system of checks and balances. A demurrer was filed to each count of the indictment and that demurrer to the three counts aforesaid on which appellant was convicted is first considered by us here.

Appellant contends that there is no duty nor any provision by law for the county treasurer to do or have to do with considering, acting and passing upon any claim or debt of the county and that this is the duty and the power of the county commissioners alone. That contention is sound. The charges in these counts of the indictment do not deny the right of the treasurer to rely upon the county commissioners for the proper approval and passage of the accounts. It was the duty of the ⁴¹⁰ treasurer, however, to see that the accounts had been approved by the county commissioners before he countersigned the checks.

Whether this determination should have been by previous signature of the check by the president of the commissioners, or otherwise, is not before us. The subsequent evidence is not before us in the record and considering it apart from that evidence as, of course, it must be considered by us on the demurrer, the charge is nothing more than negligently countersigning certain checks without the Commissioners of Wicomico County having duly allowed and approved vouchers for the payment of the claims in violation of his