State, Use of Smith v. Turner

Pearce, J., delivered the opinion of the Court. This is an action brought in the name of the State for the use of William Smith, a deputy in the office of Barreda Turner, Clerk of the Circuit Court of Baltimore City, upon the official bond of said Turner to recover for services rendered by Smith as such deputy, in the performance of the duties of the office. The United States Fidelity and Guaranty Company is the surety upon said bond, the condition of which is as follows: “If the above bounded Barreda Turner, whilst he shall continue in the office of the Clerk of the Circuit Court of Baltimore City, shall faithfully perform all the duties now required of him by law, as such Clerk, then the above obligation to be void, otherwise to be and remain in full force and virtue in law.” The original declaration, after reciting the bond, alleged that one of the duties required of Turner by law was the appointment of proper deputy clerks, and the payment to them of proper salaries; that Turner appointed Smith as one of such deputy clerks, and agreed to pay him a salary of $1,040 per annum which was a fair and .reasonable salary; that this appointment was duly confirmed by the Judge of said Court, and that the said salary was approved by the Comptroller o the State; that there was still due and owing to said Smith on said salary, the sum of $274, and an additional sum of $474 for recording, being necessary work of said office, and which sum said Turner promised to pay, but that neither of said sums had been paid though demand had been duly made on ⁵⁸⁶ both defendants therefor. There was a demurrer to this declaration, and it appears from the appellee’s brief, and the statement of appellant’s counsel, that the ground upon which this demurrer was argued was the omission in the declaration to allege that Turner had collected a sufficient amount of fees as clerk to enable him to pay the balance of salary due and the amount due for recording.

This demurrer was argued before Judge Harlan, who sustained the same. An amended declaration was then filed supplying the omitted allegation in the former declaration, and this demurrer was sustained by Judge Dobler, upon the ground that the payment of the deputy’s salary and of the recording fees due him were not duties required of the clerk by law, and therefore not within the condition of the bond. Judgment was given against plaintiff for costs and this appeal was brought. When the case was called for argument in this Court, a motion to dismiss was filed, supported by affidavit of defendant’s counsel, alleging that the demurrer to the amended declaration “was sustained by consent, and judgment on demurrer was entered pro confesso in open Court, without argument, and without the submission of briefs or consideration by the Court,” and' that the appeal was in violation of a rule of this Court prohibiting the hearing of any appeal from a pro forma order, judgment or decree.

It appears however from a counter affidavit of Mr. Cook, counsel for appellant, to which no response has been made, that on deciding the demurrer to the original declaration Judge Harlan held that the payment of salary and recording fees to the deputy was not a duty required of the clerk by law, and that when the demurrer to the amended declaration was set for hearing before Judge Dobler, who in the meantime had succeeded Judge Harlan in the City Court, he stated to counsel that he would feel compelled to follow the decision of Judge Harlan, as it was conceded the amendment did not meet the point decided by Judge Harlan adversely to the plaintiff, it being the practice among the Judges of the Supreme Bench of Baltimore City to follow a ruling made by any one of said Judges until the same is reversed by the Court of Appeals; ⁵⁸⁷ this affidavit not being replied to, or controverted in argument, the order of Judge Dobler sustaining the demurrer to the amended declaration cannot be regarded as a pro forma order, but as the adjudication of the question argued before Judge Harlan, and as the result of that argument. The motion to dismiss must therefore be overruled. The only question in this case is the liability of the surety, and this must depend upon the language of the bond. It is familiar law that the contract of a surety upon an official bond is subject to the strictest interpretation.

Archer v. State, 74 Md. 450 ; Howard County v. Hill, 88 Md. 120 . The case last mentioned was a suit upon the official bond of Hill, as Secretary and Treasurer of the Board of County School Commissioners of Howard County, to recover money alleged to have been paid out by him without warrant of law, and in violation of his bond. The condition of the bond prescribed by sec. 67 of Art. 77 was “to pay over and apply all moneys that should come into his hands as treasurer, to such persons, and in such manner, as the board may under the provisions of this article, direct.” In the bond executed, the words we have italicised were omitted, and it was held the surety was not liable for payments directed by the board, but not warranted by that article. There the effort was to read into the bond a condition, which ought to have been, but plainly was not written in.

Here there is no such attempt. The language of the condition, “faithfully to perform all the duties required of him by law,” is neither ambiguous nor equivocal. The bond however is silent as to what those duties are. They can be ascertained by reference to the Constitution and laws of the State and the established practice of the Courts in administering these laws.

While the liability of the surety is not to be enlarged by mere implication, yet in the effort to ascertain what these duties are, a reasonalbe construction is to be given to the language of the statutes dealing with these duties, and the construction is not to be strained in order to effect a release of a surety, whose obligation is deliberately entered into, as a commercial transac ⁵⁸⁸ tión, and with the exclusive view to the pecuniary profit resulting from it. With these principles in view, we will now inquire what light is thrown upon the question to be determined by the provisions of the Constitution and laws of the State relating to clerks and their deputies. Section 26 of Article 4 of the Constitution of Maryland requires the Clerks of the Circuit Courts of the several counties of the State to “appoint, subject to the confirmation of the Judges of their respective Courts, as many deputies under them as the said Judges shall deem necessary to perform, together with thems.elves, the duties of the said office, who shall be-removable by the said Judges for incompetency or neglect of duty and whose compensation shall be according to existing or future provisions of the General Assembly;” and section 37 of the same Article declares that “the provisions of this Article in relation to the appointment of deputies by the Clerks of the Circuit Courts in the counties shall apply to the Clerks of the Courts in Baltimore City.” Sec. 45 of Art. 3 of the Constitution limits the compensation of Clerks of Courts and Registers of Wills in the counties to $3,000 a year and of the same officers in the city of Baltimore to $3,500 a year, over and above office expenses and compensation to, assistants, and then provides that “such compensation of Clerks, Registers, assistants and office expenses shall always be paid out of the fees or receipts of the offices respectively; but special protection is given to the Clerks of the Courts in Baltimore City by sec. 37 of Art. 4, already referred to, which provides that the salary of each of said Clerks “shall be payable only out of the fees and receipts collected by the Clerks of said city,” and by sec. 12 of Art. 17 of the Code, which provides that whenever the receipts of any Clerks of the Courts of Baltimore City are insufficient “after the payment of all necessary expenses, to pay such Clerk the salary provided by the Constitution, and said Clerks, or any of them, shall, under section first, Article fifteen of the Constitution, have paid to the State any sum or sums of money as excess, after retaining his salary, such excess is hereby ap ⁵⁸⁹ propriated to the payment of the .salary or salaries so in arrear until each of said Clerks shall have received the full amount thereof; and it shall be the duty of the Comptroller of the State to draw a warrant upon the State Treasurer for the payment of said arrears out of the said excess, not to exceed the amount so in arrear, and not to exceed the whole amount of said excess paid into the treasury of the State.” Sec. 16 of Art. 17 requires the Comptroller from time to time, “to limit and fix the compensation of the assistant clerks or deputies to be employed by the several Clerks of the Courts of this State,” and provides “that no account for compensation for services of any assistant clerk, deputy or other person employed in performing any of the duties pertaining to the office of any such clerks shall be allowed, until such assistant clerk or other person employed shall have certified under oath that the same services have been performed, that he has received the full sum therein charged to his own use and benefit, and that he has not paid, deposited or assigned, nor contracted to pay,