Tull v. Sterling

Urner, J., delivered the opinion of the Court. In pursuance of a statutory duty, imposed upon him as the State’s Attorney for Somerset, County, the appellant instituted, and conducted a trial and judgment, in the name of the State, thirty-eight separate proceedings in the Circuit Court for that county for the condemnation of certain natural oyster bars and areas for the use of the public. The costs of the proceedings as taxed by the clerk of the Court, and paid to him out of the State Treasury, included an. appearance fee of live dollars in each case for the appellant as attorney for the State. The Local Code for Somerset County contains the following provision, enacted by Chapter 280 of the Acts of 1906: “The State’s Attorney of said Somerset County, in lion of the fees received by him, as provided for in any local law for Somerset County, or in any general law of the State, shall receive a salary of one thousand dollars per annum as full compensation for his entire services as required of him by law or which may hereafter he required of him by any law of this State, to he paid to him by the County Commissioners of Somerset County.” In view of this, provision the clerk was, advised that he could not legally pay any appearance fees in the condemnation cases to the appellant, and his demand that they he paid to him was accordingly refused.

A petition for mandamus to; compel the payment was then filed, hut it was' dis,missed on demurrer, and the pending appeal has, resulted. It, is provided by the Constitution of the State, by section 9 of Artivle I”, in part, as follows: ¹⁶⁶ “The State’s Attorney shall perform such duties and receive such fees and commissions or salary, not exceeding three thousand dollars, as may now or may hereafter he prescribed by law; and if any State’s Attorney shall receive any other fee or reward than such as is or may he allowed by law, he shall, on conviction thereof, he removed from office.” The expressed purpose of the local law for Somerset County, which we have quoted, was to provide for the compensation of the State’s Attorney for that county by means of a specified salary in lieu of the fees theretofore received by him for the performance of his official duties. If this change had not been made in the method and measure of his compensation, and the fee system had continued to apply to his office, the appearance fees in question would have had to he reckoned as part of the fees for which he would be accountable and out of wbicb be would be paid for bis 'services to tbe amount limited by the Constitution or by statute. It is made tbe duty of every person bolding office under the Constitution or laws of this State (except justices of the peace, constables and coroners), “whose pay or compensation is derived from fees or moneys coming into bis Lands for the discharge of his official duties, or in any way growing out of or connected with' his office” to “keep a book in which shall be entered every sum or sums of money received by him, or ou bis account, as a payment or compensation for bis performance of official duties a copy of which entries,” verified by his oath,'“shall be returned yearly to the Comptroller of the State for his. inspection,” and when the amount so received by such officer for tbe year “shall exceed tbe sum wbicb be is by law entitled to retain as bis salary or compensation for tbe discharge of bis duties, and for the expenses of his office,” he is required to “yearly pay over to the Treasurer of the State the amount of such excess.” • Constitution, Art. XV, seo. 1.

The Code of Public General Laws, by section 24 of Article 10, provides that accounts of State’s ¹⁶⁷ Attorneys against the County Commissioners of their respective counties “may include a reasonable trial fee for each case actually tried, to be allowed in the discretion of the Court, as well as the appearance fee provided by law,” and the next succeeding section of the same article of the Code authorizes the Comptroller of the Treasury to adjust and settle the claims of any of the State’s Attorneys “for appearance fees in civil cases due them, by the State, and for all fees similarly due for services rendered under the opinion of the Attorney General in the matter of cases, removed from said county for trial or otherwise.” It seems perfectly clear from these provisions, that appearance fees received by State’s Attorneys were intended to. be treated, like other fees, as