State v. Nicholson

Robinson, J., delivered the opinion of the Court. The traverser, a collector of State and county taxes for . Charles County, was indicted under the Act of 1812, chap. 829, which provides: That if any collector, shall wilfully detain in his possession taxes collected by him, and neglect to pay the same into the treasury of the State, for more than sixty days after the day upon which it is made his duty to pay the same, or if no particular day he appointed, shall neglect to pay the same for the space of six months, he shall be deemed to be a defaulter, and upon conviction shall he imprisoned in the penitentiary, &c., “ unless the amount for which he is a defaulter he sooner paid.” In support of the demurrer it is argued in the first .place, that the Act is in conflict with the Constitution of this State, which abolishes imprisonment for debt, There ³ is a broad distinction, however, between imprisonment for debt within the meaning of the Constitution, and imprisonment for a breach of duty on the part of a public officer, although such breach of duty may be the neglect or refusal on his part to pay money received by him for the use of the State. Public officers were by the common law indictable for malfeasance or misfeasance in office, and although the Constitution abolishes imprisonment for debt, this in no manner interferes with the power of the Legislature to punish such offences by imprisonment or otherwise as the public interests may require.

A collector of taxes is a public officer, whose duty it is to collect the taxes and pay the same into the treasury of the State, or to the parties entitled, and if he neglects to discharge this duty, and appropriates to his own use the money thus received by him as collector, the Legislature has the power to declare such acts of commission or omission to be an offence punishable in such manner as it may deem proper. Any other construction would deprive the Legislature of all power to punish defaulting officials for the appropriation by them of money received and held in trust for the State. Nor is it any objection to the statute that it provides, upon the payment of the money for which he is in default either before or after conviction, such collector shall be discharged, for the reason that the Legislature has the right to prescribe the terms and conditions upon which the punishment shall be imposed. Passing then from these objections to the statute, we come to the indictment, and this is said to be fatally defective, because it does not charge that the traverser detained the money six months after the same was collected by him.

According to our reading of the indictment, this is charged in plain and explicit terms. It avers that on the 2nd of April, 1884, the traverser, as collector, received the sum of fourteen hundred dollars on account of taxes due the State, and that he did then and there unlawfully and wil ⁴ fully detain the said sum in his possession. &c., and unlawfully, &c., did neglect to pay said sum into the treasury of the State, for the space of “ six months, after he, the said Thomas F.