Peter v. Prettyman

Irving J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Montgomery County dismissing the appellant's hill which prayed an injunction against the appellees. The case was-submitted upon hill,' the answer of the county commissioners of Montgomery County, and the plea of the appellee Prettyman with his exhibits; and the only questions-for us are questions of law. The bill alleges, that complainant is a tax payer in, and a citizen of, Montgomery County; and that he files his hill on his own behalf, and the behalf of all others similarly interested.

It alleges,, that the appellee Prettyman is the clerk of the Circuit Court for Montgomery County, and has been continuously^ ⁵⁶⁹ such clerk since the month of November, 1863; and that among other duties appertaining to his office he was required by law to record all mortgages, deeds, bills of sale, &c., and to make an alphabetical index thereof in each liber of the records, and also to make a general alphabetical index of all these records in a separate volume, for which work he was entitled to charge and receive such fees as the law prescribed, from the individuals having the instruments recorded; and that he has just completed a general index of such records from the time of his becoming such clerk, which is the only general index he has ever made for his office; and notwithstanding the provisions of law regulating the charges for such service, he has presented a bill for six hundred dollars against the commissioners of the county for making such general index. This bill the complainant charges the . county commissioners are not warranted by law in paying, and that they should not he allowed to. pay. Alleging that they are about to pay it the hill prays for an injunction. The clerk pleads, that the general index mentioned in the bill of complaint “ was undertaken and' made in obedience to the order of the Circuit Court for Montgomery County, passed on the fourth day of June, eighteen hundred and seventy-seven,” which order is in the following words, viz., “ Upon the inspection of the records and papers of the office of the clerk of this Court, relating to lands, tenements, and other real estate, and examining the condition thereof, it appears to the Court that the general index of the land records of said county have become so dilapidated and worn as to require them to be transcribed: It is thereupon, this fourth day of June, 18T7; ordered by this Court that the clerk of this Court transcribe the said general index in a full, bold hand into new record hooks; and also transcribe in like manner, and bring up to the present date, the indexes of all deeds required hy law to he recorded, into the general index of the land records of ⁵⁷⁰ said county.

And it is also ordered, that said clerk use record hooks known as ‘ Campbell's Index.' It is also ordered, that said transcription shall be proceeded in to completion without delay, and when the same shall have been completed, and approved by this Court, the clerk shall be paid therefor by said county such compensation as this Court may deem reasonable.” This order was signed by two of the Judges of the Court. The plea further set out that the bill for such service would be paid by the county commissioners in pursuance of, and in obedience, to two other orders of the Court approving the work and recommending the payment of the charge made, viz., the $600. He further pleads that the complainant has full and complete remedy at law. The county commissioners answered the hill, and without admitting or denying the other allegations of the hill, admitted the presentation of the hill by the defendant Prettyman for making the general index mentioned in the bill, and that the same would he paid unless the order of Court respecting the same should he rescinded.

After hearing, the Circuit Court dismissed the bill; and from this decree refusing an injunction and dismissing the bill, this appeal was taken. The plea to the jurisdiction of the Court can not be maintained. It is no longer an open question in this State whether a tax payer, having no other or special interest different from that of the public, may crave the interference of the Court of equity to prevent illegal taxation. The power and right of the Court of equity to interfere by injunction in such case is unequivocally asserted in Mayor and City Council of Baltimore vs. Gill, 31 Md., 393 , and in no case since has that principle been questioned.

The case of Kelly, Piet & Co. vs. Mayor and City Council, &c., 53 Md., 134 , relied on by appellees, recognizes the authority and propriety of Gill’s Case in 31 Md., hut rests upon an exception from the rule which the facts of that case ⁵⁷¹ presented. In that case the complainants suffered especial damage other and different from the tax payers generally. In this case the complainant occupies no such position, and if he has presented a case of clear violation of the law, and his and other tax payers’ rights, should the claim of the defendant clerk he allowed and paid hy the county commissioners, the injunction ought to have been granted. The county commissioners are a body politic; a corporation charged with the administration of the county affairs, and can only do what their charter powers, by express language or necessary implication, permit.

The fifth section of Article 28 of the Code of Public General Laws giving them their authority, directs that “they shall levy all needful taxes on the assessable property within the county liable to taxation, and provide for collecting the same, and they may make such levy in whole or in part hy estimate ; they shall provide for the support of the Courts, compensate jurors and county or State witnesses, levy for out-pensions allowed by themselves or the trustees of the poor, and such sums as maybe necessary to pay accounts allowed by them for the funeral expenses of paupers, and pay and discharge all claims on or against the county which have been expressly or impliedly authorized by law.” If there be any law requiring the clerk to do this work for which his claim is made, either expressly or impliedly, at public expense, it would he the duty of the commissioners to provide for its payment; but if the duty was upon the clerk to make this general index, and the intention of the law was that he should he paid his compensation in another way, then the claim is improperly preferred. If hy any provision of the Constitution or laws of the State the Court was clothed with power to require this duty of the clerk at public expense, then hy necessary implication the county commissioners were hound to pay for it; but not otherwise; notwithstanding the Court may have directed the work to he done, and the commissioners to pay for it. ⁵⁷² By the 51st, 52nd and 53rd sections of Article 18 of the Code of Public General Laws it is made the duty of the clerk to make not only an alphabetical index for each record hook, hut also a general alphabetical index of all the deeds and instruments required to be recorded ; and by the tenth section of Article 38 of the Code of Public General Laws, the fee for doing this work is fixed at one and one-quarter cents for every ten words, or twelve and one-half cents for every hundred words. It was admitted in argument that the alphabeting in the several libers was chargeable against and collected from the parties having instruments recorded; but it was contended that this general index was more especially for public benefit and was properly chargeable against the public. We can not see why a general index, which informs a party of the liber and page where his deed is recorded, is not to be regarded as made for his benefit.

Such index would seem to be of more service than the liber index. The requiring of such index was, of course, to facilitate the search of the records by everybody; but the clear intention of the law was that the parties having papers recorded should pay all the charges incidental to their record and regular entry in the indexes of the office. • The Constitution of the State makes a clerk’s compensation to arise from the fees of his office. The first section of Article 38 of the Code of Public General Laws requires that all fees for services as an officer shall he made out against the person to whom they are to be charged in words at length; thus, if not expressly requiring, by necessary implication indicating that the parties requiring the services were to pay the fees. A uniform practice in the State, as far as we can learn, has included the alphabeting fees in the charges for recording deeds or other instruments brought to the clerk for record.

The eighth