Gaver v. County Commissioners

Offutt, J., delivered the opinion of the Court. Alfred W. Gaver has since June 1st, 1933, held the office of supervisor of assessments for Frederick County. The office was created by chapter 226, Acts of 1929, amended by chapter 595 of the Acts of 1933, sec. 170 (Code [Supp. 1935] art. 81, sec. 170), which fixes the salary payable to the incumbent thereof at $1,584 per an ⁶⁴² num. The treasurer of Frederick County over that period paid to Gaver as salary $1,800 per annum.

On July 30th, 1937, the Board of County Commissioners of Frederick County brought this action against Gaver to recover the difference between the amount actually paid to him by the treasurer and the amount payable to him under the statute. The declaration contained the six common counts and a special count alleging the facts stated above, a demand and refusal to pay. To that declaration, the defendant pleaded (1) the general issue, (2) limitations, and (3) set off. The plaintiff joined issue on the general issue plea, traversed the plea of limitations, and demanded the particulars of the plea of set off.

The defendant joined issue on the traverse and filed a bill of particulars in which he stated that plaintiff was indebted to- him for services rendered in the following amounts: (a) $400 for issuing and mailing building permits as the agent of the plaintiff and at its request, (b) $520.83 for notifying, at plaintiff’s request and as its agent, property owners, who had erected new buildings, to appear before said plaintiff in order that said buildings might be assessed for taxation, and (c) $120 for transportation and other incidental expenses incurred in "the administration of his official duties in making trips from Frederick to the offices of the State Tax Commission in Baltimore, which charges he thus recapitulates: “To writing building permits from June 1, 1933, to July 31, 1937, 50 months @ $8.00 per month ................................................................................................$ 400.00 To sending notices to property owners who had erected new buildings advising them to appear for assessment, 4 years 2 months @ $125.00 per year................................................................................ 520.83 To expenses for making 24 official trips from Frederick, Maryland, to the offices of the State Tax Commission, Baltimore, Maryland, @ $5.00 per trip................................................................................. 120.00 Total $1,040.83” ⁶⁴³ To the plea as particularized and to the bill of particulars, plaintiff demurred. The demurrer was sustained and the case tried before the court, which returned a verdict of $864 for the plaintiff. From the judgment on that verdict, this appeal was taken. There are no exceptions, so that the only question submitted is whether defendant in his plea of set off as particularized stated a cause of action.

Technically the sufficiency of a bill of particulars should be tested by exception and not by demurrer. 2 Poe, Pl. & Pr., sec. 119. When properly demanded, furnished, and accepted, a bill of particulars becomes a part of the declaration (Ibid, sec. 116), and, if the particularization exposes some fatal infirmity in the claim made in the declaration, a demurrer to the declaration as particularized will lie. Ibid; Noel Construction Co. v. Armored Construction Co., 120 Md. 237 , 87 A. 1049 ; Nelson v. Close, 147 Md. 214, 216 , 127 A. 751 ; Roth v. Baltimore Trust Co., 161 Md. 340, 343 , 158 A. 32 ; Cleaves v. Sharp & Dohme, Inc., 166 Md. 546, 548 , 171 A. 374 ; Winslow v. Atz, 168 Md. 230, 241 , 177 A. 272 ; Crawford v. Obrecht, 171 Md. 562, 564 , 189 A. 809 . So, while a bill of particulars can never make a bad declaration good, it may make a good declaration bad, if the facts which it discloses as the basis of the declaration do not constitute a cause of action, or are otherwise inconsistent with the plaintiff’s right to recover.

Crawford v. Obrecht, supra; 2 Poe, Pl. & Pr., sec. 116. The demurrer to the bill of particulars will be disregarded, since any objection to it because it was not sufficiently specific or definite, should have been by exception. The appellant in effect concedes that the plaintiff’s declaration states a cause of action. In view of that concession, it becomes unnecessary to consider whether a municipality which innocently, through a mistake of law, paid to its officer or agent, who was equally innocent and mistaken, salary in excess of a statutory limit, can recover the excess. 46 C. J. 1017; Mayor, etc. of Niles v. ⁶⁴⁴ Muzzy, 33 Mich. 61 ; Sidway v. South Park Commrs., 120 Ill. 496 , 11 N. E. 852, 853 ; Converse v. United States, 21 How. 463 , 16 L. Ed. 192 ; McQuillen, Munic.

Corp., secs. 534, 546. So the sole question to be decided is whether the plea of set off as particularized states a cause of action. The office of supervisor of assessments was created by chapter 226, Acts 1929, section 167, which in part provides: “The Supervisors shall be furnished with an office at the county seat by the County Commissioners of each county, and the Supervisor of Assessments for Baltimore City shall likewise be furnished an office in Baltimore City by the Mayor and City Council; and they shall be allowed such clerical help and expense as the County Commissioners and the Mayor and City Council of Baltimore shall respectively determine. They shall confer frequently with the State Tax Commission, submitting questions for determination to that Commission and shall receive and carry out instructions given by the Commission or the Chief Supervisor of Assessments appointed by the Commission for their guidance in supervising the valuation and assessment of real and personal property; they shall likewise keep constantly informed of the method of work pursued by other Supervisors of Assessments.” Code (Supp. 1935), art. 81, sec. 167.

The same act, as amended by chapter 595, Acts of 1933, section 168 (Code [Supp. 1935], art. 81, sec. 168), provides in part: “The Supervisors of Assessments shall have general supervision over the assessment of all property in the County or City for which they are appointed. They shall have power and are charged with the duty, to recommend assessments to the County Commissioners or other authority as required by law, and shall be charged with the duty and shall use all due diligence in listing escaped and/or new property and recommending a proper assessment thereon to the boards of County Commissioners or other authority and shall cooperate with the respective boards of County Commissioners or other assessing authorities in obtaining fair and equitable assess ⁶⁴⁵ ments.” The statute then goes on to state in some detail the manner in which incumbents of the office shall administer its duties. Ibid!•. For convenience, the claims described in the bill of particulars of the plea of set-off may be considered as three separate independent items, Item (1) is for services incident to the issuance of building permits, Item (2) for services rendered in notifying the owners of new buildings to appear before the County Commissioners and be heard in reference to the assessment of such buildings for taxation, and Item (3) for expenses incurred as the result of official visits to the office of the State Tax Commission.

It appears from a comparison of the statute and the bill of particulars, that the services described in items two and three are such as are pertinent to and within the scope of the duties imposed by the statute upon a supervisor of assessments for a county. For instance, the statute in express and explicit terms charges such an official with the duty of discovering and listing escaped and new property, requires him to use all “due diligence” in the performance of that duty, and requires him to cooperate with the County Commissioners in obtaining fair and equitable assessments. It also, in terms equally explicit, requires him to “confer frequently with the State Tax Commission.” If the County Commissioners did therefore request him to notify persons owning new buildings to appear before them to have such buildings assessed for taxation, they asked him to do no more than to cooperate with them in securing information which it was necessary for him to secure in some way, and from some source, to enable him to adequately perform his duties. The statute of course did not require him to send the notices, as that work should ordinarily have been done by the Board itself.

But his duty was to secure information necessary to enable him to recommend a proper assessment to the County Commissioners, and the salary fixed by the statute was payable to him for the performance of that duty. ⁶⁴⁶ Compliance with the request of the Commissioners aided him in securing conveniently, quickly, and cheaply that information, and was in aid of the duties of his office for performance of which his salary was fixed as complete compensation. He had therefore no more right to charge the Commissioners for that service than for the service of recommending an assessment. The fact that the Commissioners permitted him, or even that they requested him, to use the power given by the statute to them, for the purpose of securing for himself information wmch he needed to properly administer his office, raised uv presumption that they agreed to pay him for exercising the privilege. In McQuillen, Munic.

Corp., sec. 544, it is said: “Where an officer performs duties imposed by law he is entitled to the compensation therefor fixed by law and no other. He is not entitled to extra compensation for services performed in the line of his official duty. The fact that the salary or compensation may be recognized as inadequate remuneration for the services exacted and actually performed does not change the rule. And the principle is the same although his duties are greatly increased.

Courts everywhere recognize the necessity of protecting the public funds, and hence, they will usually enforce the rule against permitting extra compensation either