State ex rel. Mayor of Baltimore v. Norwood

Eccleston, J., delivered the opinion of this court. The suit in which these cross-appeals have been taken, was instituted in the Superior court of Baltimore, in the name of the State use of the Mayor and City Council of Baltimore, against Lambert S. Norwood, Elizabeth Smith and Joshua M. Turner, on the 5th of May 1854. The object of the suit was to recover money alleged to be due the equitable plaintiffs, under a bond dated the 29th of November 1851, given to the State by Norwood, as clerk of the court of Common Pleas for the city of Baltimore, the penalty of the bond being five thousand pounds. The declaration is in the form commonly used in suits upon bonds with collateral conditions, when breaches are not assigned by the nar.

Neither the original bond nor a copy thereof was filed with the declaration. The defendants pleaded nil debent, to which issue was joined, and the parties madeThe following agreement: “It is agreed in this case that errors in pleading are waived, and either party may give in evidence such testimony as might be admissible in any form of pleading, and that a copy of the bond may be offered to have the same effect as if the original was produced, the testimony to be taken subject to exceptions.” At the trial of the cause, the first bill of exceptions was taken by the equitable plaintiffs. They offered in evidence an ac ¹⁸⁶ count or list of ordinary licenses, marked and returned to the city register’s office by Lambert S. Norwood, clerk of the court of Common .Pleas for the city of Baltimore, showing that the amount which he charged as due the city, and remained unpaid, from May 1st, 1853, was $ 14-613,95; which list or statement, the parties agreed should be used in lieu of the original lists. And the plaintiffs proved by J. J. Graves, city register, that said account or list was returned by Lambert S. Norwood clerk of the Court of Common Pleas, and that the moneys received by him, as set forth by him in said account, as having been received by him for ordinary licenses, had not been paid to the city treasury.

To the admission of which account and evidence the defendants’ counsel objected, contending that the plaintiffs had shown no title to said money, and that Norwood as clerk, was not bound to collect and pay over the moneys col* lected by him for ordinary licenses, which objection the court sustained. And upon this decision the plaintiffs’ appeal is based. They insist upon their right to recover from the defendants, money alleged to have been received by Norwood, as clerk of the Court of Common Pleas, for the use of the city of Baltimore, under the act of November session 1782, ch. 17. This act was passed' for the more effectual paving of the streets of Baltimore town, and for other purposes; by which several special taxes were imposed.

Among these were taxes on carts, riding horses, billiard tables, <fcc., and :‘an additional tax of five pounds annually on tavern licenses The 45th section of this act, made the then special commissioners a body corporate, by the name of “Special Commissioners for Baltimore Town.” And the 18th section of the same act gave these commissioners “full power to appoint a person or persons properly qualified, to act as collector or collectors of the taxes before mentioned;” the tax on ordinary or tavern licenses being one of those “before mentioned,” and not excepted out of the general authority given to such collector when appointed. This tax and others were likewise authorized to be collected by distress, as may be seen by reference to the act of 1792, ch. 21. ¹⁸⁷ By the law of 1796, ch. 68, Baltimore town was made a city, and all the powers then possessed by the special commissioners were conferred upon the new corporation. By this change, instead of the commissioners the “Mayor and City Council of Baltimore” became authorized to appoint a collector of the five pound and other taxes. The act of June session 1780, ch. 8, sec. 9, is the first law, Which, in terms, directed the clerks of the county courts to receive and account for moneys payable for ordinary licenses.

The entire amounts to be received for such licenses, were then due to the State alone. Since 1780, different laws in regard to money due the State, for ordinary and other licenses in Baltimore, have made the same payable, at one time, to the clerk of the court of oyer and terminer, afterwards to the clerk of the city court, and then to the clerk of the court of Common Pleas. The act of 1804, ch. 65, in the latter part of its 4th sec. provides, that the clerk of the court of oyer and terminer, “shall also receive all sums of money payable for any licenses granted in virtue of this act, and account for the same according to law, as the clerk of Baltimore county court is now required todo.” We see nothing in this act which imposesany duty upon the clerk of the court of oyer and terminer, in relation to the tax now under consideration; believing, as we do, that it never was made the duty of the clerk of Baltimore county court to collect this tax. With much care we have examined the laws generally, having any relation to ordinary and other licenses, and particularly those already mentioned, as well as the following: March session 1780, ch. 24, sec. 1; 1791, ch. 58; 1816, ch. 193, sec. 14; 1816, ch. 242; 1822, ch. 217; 1827, ch. 117; 1831, ch. 262; 1831, ch. 298; 1838, ch. 414; special session of March 1841, ch. 40; and 1852, ch. 308, the last clause of section 1.

This examination has not enabled us to find any direction or authority, given in express terms or by necessary implication, to the clerk of Baltimore county court, to the clerk of the Court of Common Pleas, or to the clerk of any other court, to collect or receive this five pound tax. And seeing that the ¹⁸⁸ act of 1782, ch. 17, provides for its collection by a person or persons to be appointed for that purpose; and the act of 1792, authorises it to be collected by distress; we do not perceive either a necessity, or any authority, for so construing the Jaws on the subject, as to make it the duty of the clerk of the Court of Common Pleas to receive the tax. If there was evidence showing that Norwood, whilst clerk of the court, was appointed a collector, as provided for by the act of 1782, such an appointment could not impose upon him any responsibility in his character as clerk; there being no law requiring the clerk, as such, to perform the duty. If, therefore, by virtue of any appointment from the Mayor and City Council, or in consequence of any arrangement or understanding between them and Norwood, he has been receiving this tax, he may be personally answerable for the same, but his official bond, as clerk, is not.

Believing these views to be Correct,- we think the city is not entitled to any portion of the claim relied upon in regard to ordinary licenses, under the act of 1782; consequently the plaintiffs’ bill of exceptions shows no error on the part of the court below, and therefore, the decision appealed from by the plaintiffs will be affirmed. In the further progress of the cause, the defendants took three bills of exceptions. The vel'dict and judgment being against them they appealed. From the first of these exceptions it appears, that after giving in evidence the agreement already stated, with relation to waiving errors in pleading, and the admission of such evidence as might be given in any form of pleading, the plaintiffs offered a copy of the bond mentioned in the nar.

By the condition of which bond, among other things, it is provided, that Nor-wood, as clerk of the Court of Common Pleas, should Well and faithfully pay over to the Treasurer of Maty land, all sums of money received by him for the use of the State of Maryland, under the provisions of the constitution of the said State, or of any law then existing, or which might (hereafter be passed in the manner and at the time limited by such acts without fraud or further delay, and should well and truly account for the ¹⁸⁹ same with the officer, or person or persons authorised to receive the same, and the duties of his office, and all the other duties of his office by law imposed, legally, duly and faithfully should discharge according to law, and the true intent and meaning of the acts of Assembly in such cases made and provided. To the admissibility of this bond the defendants objected, but the court overruled the objection, and they excepted. The defendants’ second bill of exceptions, shows that the plaintiffs offered in evidence the following agreement: “It is admitted, that by the list of jail fees marked Exhibit No. 1, returned to the city register’s office, by Lambert S. Norwood, clerk of the Court of Common Pleas, it appears that the amount which he charges as due the city, and which remains unpaid from May 1st, 1853, to June 1st, 1853, is $>1950.72, and it is agreed that this statement shall be inserted in the record in lieu of the original list.” And the plaintiffs offered evidence by John J. Graves, register of the city, that said account was returned by Lambert S. Norwood, clerk of the Court of Common Pleas for the city, and that the moneys received by him as appears by said account or list, were not. paid to the city treasury. To which evidence the defendants objected, but the objection was not sustained by the court.

The defendants then asked three prayers, all of which were refused; upon which action of the court the defendants based their third exception. The 1st prayer asks the court to instruct the jury, that there is no evidence in this cause to sustain the plaintiffs’ right to recover in this suit. The 2nd is, “that if the jury believe from the evidence, that a judgment has been recovered against the defendants or any of them, on the bond offered in evidence in this suit, then the plaintiff is not entitled to recover in this case, for any sum of money Which they may find Lambert S. Norwood received under the act of 1827, ch. 117, sec. 2nd.” And the 3rd prayer is, “that upon the pleadings, agreement and evidence in this cause, the plaintiff is not entitled to recover in this su.it,” ¹⁹⁰ Whilst considering the appeal of the defendants, it must be borne in mind, that in deciding the plaintiffs’ appeal, we have said they have no right to recover under the bond in controversy, for any moneys received by Norwood, on account of ordinary licenses. This being so, it follows necessarily, that hi regard to questions presented' by the defendants’ appeal, no claim on account of those licenses can be of any avail to the plaintiffs.

The only claim now to be examined is, how far the bond of the clerk, as such, is answerable for moneys received by him under the act of 1827, ch. 117, sec. 2, for what are Usually called “jail fees.” This act directs the sum of twelve dollars to be paid to the clerk of Baltimore city court, for the use of the State, by every person or body corporate, applying for a license to sell goods, wares or merchandize