Green v. State

Briscoe, J., delivered the opinion of the Court. This case is presented here, for review for the second time. On the former appeal at the January Term, 1913, of this Court, and reported in 120 Aid. 681, we reversed a judgment in favor of the plaintiff for the sum of $15,177.20 and awarded a new trial. The appeal now before us is by the defendant, from a judgment rendered against him on the second trial, in the Baltimore City Court, on the 23rd day of June, 1913, for the sum of $27,553.98, with interest and costs.

The case was submitted to the Court below, sitting as a jury, upon an “Agreed Statement of Pacts,” in lieu of testimony. The legal propositions now before us are presented by a single-bill of exception, which is to the action of the Court below in its rulings upon eleven prayers. . The Court below granted the five prayers offered by the plaintiff, and rejected the six prayers presented by the defend ²⁹⁰ ant, and the action of the Court in this regard forms the basis of the defendant’s appeal. The agreed statement- of facts, upon which the rulings were had, are substantially as follows: 1.

That the amount of fines collected by the defendant as sheriff of Baltimore City from the 30th day of November, 1903, to the 7th day pf December, 1905, and not accounted for and paid over by him either to the State of Maryland, the Mayor and City Council of Baltimore, incorporated dispensaries of Baltimore City, or to informers, amounts to $8,250.10. 2. That in addition to the above amount the defendant as sheriff also withheld from the State of Maryland, relying upon the provisions of Chapter 300 of the Acts of 1874, for Court attendance from the 30th day of November, 1903, to Ihe 7th day of December, 1905, the sum of $10,176, which sum he retained out of the sum of $10,823.20 paid him by the clerk of the Court of Common Pleas on account of licenses issued by said clerk. That the defendant attended in person or by deputy upon the various law courts of Baltimore City a sufficient number of days to make up the sum of $10,176, based upon the charge of $4 per day per court for each day’s attendance. 3. That in addition to the two above mentioned sums the defendant collected as sheriff of Baltimore City from the 30th day of November, 1903, to the 7th day of December, 1905, and failed to account for to the State, commissions at 6 per cent, from the State’s Attorney for Baltimore City and from the clerk of the Criminal Court of Baltimore City based on fees and costs due said State’s Attorney for Baltimore City and said clerk of the Criminal Court of Baltimore City, and collected by the defendant as sheriff, amounting to $664.86. 4.

In the return made by the defendant to the State Comptroller, the defendant has been allowed for all expenses of his office actually incurred by him, including his own salary of $3,000 per year. ²⁹¹ On the former appeal we held, that the amount of fines collected, and improperly retained by the defendant, as sheriff of Baltimore City, as informers’ fees, to wit, the snm of $8,250.10, as stated in “the Agreement” belonged to the State, and should have been included by the defendant as receipts of his office, in his accounting’ to the State. The reasons for this conclusion are fully and clearly stated by Judge Pattison in an opinion on the former appeal, reported in 120 Md. 681 , and it would answer no good purpose to repeat or incorporate them here. The plaintiff’s first prayer properly instructed the Court as to the amount retained as informers’ fees. Tt was said on the former appeal, that it was a correct prayer and we held, its refusal on a similar state of facts, was reversible error.

State v. Green, 120 Mid. 690. The appellant, the defendant below, however contends, that the sum of $10,176 withheld by him, as set forth in paragraph 2, of “the Agreed Statement, of Pacts” was properly retained by him, for attendance upon the various law courts of Baltimore City, at $4 per day, from the 30th day of November, 1903, to the 7th day of December, 1905, under the provisions of Chapter 300 of the Acts of 1874. The Statute relied upon is as follows: “The sheriff of Baltimore City shall be allowed four dollars per day for every day he shall attend, either in person or by deputy, in the Superior Court of Baltimore City, and in the Court, of Common Pleas, and in the Baltimore City Court, and in the Criminal Court of Baltimore, to he paid to1 him out of the money received as fees or fines in the sheriff’s office, belonging to the State.” Tt must be borne in mind at the outset in considering this s1 a tute, that we are here dealing with the salary of a constitutional officer, whose compensation shall not exceed more than three thousand dollars a year, and it is admitted that the defendant in this case, in his return to the state comptroller. has been allowed for all the expenses of his office ²⁹² act.ua 11 v incurred, and lias Leen paid Lis ovni salary of $3,000 per year. In other words, tho sum here claimed if allowed the defendant would clearly be compensation in excess of the sum cif three thousand dollars, and in violation of sec. 1 of Art. 15 cf the Constitution.

This provision of the Constitution has been before this Court for consideration in a number of cases, and in each ease the claim was denied and disallowed. Banks v. State, 60 Md. 305 ; Goldsborough v. Lloyd, 86 Md. 376 ; Vansant v. State, 96 Md. 125 ; State v. Green, 120 Md. 690 ; Cecil & Beasley v. Co. Commrs., 121 Md. 696 . Tn Banks v. State, supra, Judge Alvey said, this question is clearly answered by a simple collation of the provisions of the Constitution, and of tho statute law of the State upon this subject. TTe then cited the various acts bearing thereon, and held that the commissions received in that case, over and above the salary and expenses of the office, were required to be paid into the State Treasury.

It was further held, that the commissions in question were received for the discharge of official duties and formed part of the emoluments of the office held by the appellant. If in the language of the Consi itution the money came into his hands “in any way growing out of, or connected with his office” he was required to account for it as part of the income or receipts of the office. In the recent case of Cecil and Beasley v. The Commissioners of Anne Arundel Co., 121 Md. 696 , Judge Stockbbidge in delivering the opinion of the Court said: “It is immaterial whether .the amount of the sheriff’s compensation be payable as a salary from the fees of his office, or by the County Commissioners. It was in either event, compensation to him for services performed in the discharge of the duties of his office, and was the maximum amount which the Legislature had the power to provide.

Having granted this salary, it was incompetent to add to it fees for the performance of official duties, and which fees, if paid, it would then become the duty ²⁹³ of tlie sheriff to account for, to the comptroller and pay over to the treasurer of the state.” In State v. Green, 120 Md. 688 (the former appeal), Judge Pattisom said: Article 15, section 1 of the Constitution of this State in stating or defining the duties thereby imposed upon the officers therein named, of whom the sheriff is one, provides that each of 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 subject to such disposition thereof as the General Assembly may direct; * * * and no person holding any office created by or existing under this Constitution or laivs of this State, shall receive more than .$3,000 a year as compensation for the discharge of his official duties except in cases specially provided in this Constiüition. It is too clear for question, that if the object and purpose of the Act of 1871, Chapter 300, is to be construed as increasing the compensation of the sheriff of Baltimore City over and above the salary of $3,000, it would be compensation in excess of the constitutional limitation and its provisions u'ould be invalid and void, as in conflict-, and in violation of Article 15, section 1 of the Constitution. In our opinion, the purpose of this Act (1871), was not to increase the maximum compensation of $3,000 allowed 1he defendant as salary, but it was to provide the necessary revenue to meet the expenses of his office, and to secure to him a salary of $3,000 per annum, as provided by the Constitution. I>y section 42 of Article 87 of the Code, it. is provided ‘‘(■hat all fines, forfeitures, penalties and costs imposed as aforesaid are to bo paid to the sheriff, who shall pay (he same, except the costs, to the treasurer on or before the 10th of November, in each year, and the costs to the person entitled to receive (hem, provided -when any person is entitled (o any ²⁹⁴ part of the fine, forfeiture or penalty as informer or otherwise, the same shall be paid by said sheriff to such person. ’’ Under the Act of 1871, the sheriff may use any part of the fines as well as fees belonging to the State, for the expenses of his office, or in payment of his own salary.

In other words, as stated by the State in its brief, this statute authorized him to charge against such fines the per diem charge of $1 a day to the extent and in so far, that such a charge is