State ex rel. Mayor of Baltimore v. Norwood

12 Md. 177 | Md. | 1858

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 account 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.

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 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 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,”

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 in the city; and it provides, that such license shall not “authorize any person, or persons, body or bodies corporate or politic, to sell or barter spirituous or fermented liquor, by retail or in quantities less than ten gallons, and not less than a pint, within the city of Baltimore, unless the person or persons, body or bodies corporate or politic, obtaining such license, shall pay to the clerk of Baltimore city court, in addition to the twelve dollars aforesaid, the further sum of four dollat'S for every such license; the said further sum to be applied to the payment of the expenses of the gaol, of the said city and county of Baltimore, so far as the same are chargeable to, and to be borne by, the city of Baltimore.”

As the law directs the four dollars to be paid “to the clerk of Baltimore city court,” no question like that, in reference to ordinary licenses, as to who was to collect or receive the same, can here be made, and inasmuch as the duties of that clerk, in regard to such matters, have been transferred to the clerk of the Court of Gommon Pleas, there can be no doubt but that his official bond is responsible for the jail fees. The defendants however contend, that admitting the bond to be answerable, still the present equitable plaintiffs are not the proper parties to institute the suit; because, if without the express authority of the State, any suit upon the bond could be sustained, it could only be by making tbe “visitors of the jail of Baltimore city and county” the equitable plaifitiffs. In support of this view, reference has been made to the act of 1831, ch. 58, the first section of which Constituted these visitors a body politic and, corporate, with “all the powers, authorities and privileges of a corporate body, so far as the same are necessary to a due discharge of their duties, as fully to all intents and purposes as any other corporate body might or could have and exercise.” Among the duties and powers prescribed for these visitors by this law,- the 13th section provides, that they “shall keep regular books of accounts, in which the whole expenses of the jail, whether for supplies, salaries of officers, repairs or incidentals, shall be distinctly stated, as also all the receipts and expenditures upon the different, dockets, in such a manner, as that these accounts may show what is chargeable to Baltimore county, and what chargeable to Baltimore city.”

The 16th section enacts, “that the said visitors shall annually make out a full statement of all the public money received by them from the register of the city of Baltimore, or from any other source for the use of the city of Baltimore, and the manner in which it has been expended; which statement shall be laid before the Mayor and City Council of Baltimore, together with an estimate of what will be necessary for the following year, the amount of which estimate shall be levied on the property in the city of Baltimore, and paid to the visitors of the jail.”

It has been contended by the defendants, that the sections of the law, which have been mentioned, give to these visitors, and not to the Mayor and City Council, the right to demand and receive, directly from the clerk of the Court of Common Pleas, the jail fees made payable under the act of 1827. But we do not consider this a correct view of the subject. When that act was passed the visitors had no existence as a corporation. The Mayor and Gity Council, however, were then the corporate body, having the control and management of the affairs of the city. And as the law provided, that the fees in dispute should be applied to the payment of the expenses of the jail of the city and county of Baltimore, so far as the same were chargeable to, and to be borne by, the city, we think the Mayor and City Council then had the right to demand those fees from the clerk, whose duty it was to collect them from persons obtaining licenses. This right has not been transferred to the visitors, by any express language in the act of 1831, or by any necessary implication, so far as we have been able to discover, after a careful examination of its provisions. In reference to money transactions, the principal powers and duties of the visitors seems to be, that they are to estimate what amount it will be necessary for the city to provide for each year on account of jail expenditures, and that the application and expenditure of the same shall be made under the direction of the visitors, the city authorities being required to provide for the amount so estimated. And inasmuch as the duty of providing the means necessary to meet its quota of jail expenses, is imposed upon the city, it is but reasonable to suppose, the Legislature designed that the feés arising under the act of 1827, and thereby expressly directed to be applied for the relief of the city, in regard to its liability for a portion of such expenses, should go into the city treasury. This we consider a correct interpretation of the intention of the Legislature, as manifested by the laws on the subject. The Mayor and City Council, therefore', had a legal claim for the jail fees received by Nor-wood as clerk.

Admitting they had, still the defendants insist, that they cannot recover any portion of the fees in this case, unless it can be shown that the - suit was instituted for the use of the equitable plaintiffs, by authority from the State given for that purpose. But in our opinion, the decisions in Maryland fully establish the doctrine, that there is no necessity for obtaining permission or authority from the State, to institute such a suit as the present, upon the official bond of the clerk.

In Kirsted, Morrow and Chamberlain, vs. The State, &c., 1 G. & J., 248, the bond sued upon was taken in the name of the State, although no law expressly directed it to be so taken. The bond was given by an insolvent petitioner, conditioned for his appearance to answer the allegations of his creditors.

Two other cases of like character with the one above stated, were argued at the same time, and the court decided them all in the same opinion. It is there said; “Another question insisted on by the appellants in the argument of this cause is, whether the appellees could sue these bonds for their use, there being no provision in any of the insolvent acts, to enable them thus to sue. This point we consider settled in this court, by the cases of McMechen vs. The Mayor and City Council of Baltimore, use of A. Storey, and McMechen vs. The Mayor and City Council of Baltimore, use of Hollingsworth & Williams, 2 Harr, & Johns , 41, and 3 Harr, & Johns., 534. They were suits on ap auctioneer’s bond, taken under an ordinance of the city, which did not authorize any person in particular, to sue it. They were nevertheless sustained, and the judgment of the county court therein affirmed by this court.”

This opinion it will be seen was delivered, between four and five years after the decision of the Supreme court of the United States, in Corporation of Washington, vs. Young, 10 Wheat., 406, to which the defendants have referred.

In the case of Ing & Mills, vs. State use of Lewis & McCoy, 8 Md. Rep., 294, the court say, “for a great length of time it has been the uniform practice in this State, in cases like and similar to the present, to institute the suit in. the name of the State, causing the names of the parties for whose benefit it is prosecuted, to be endorsed on the writ and declaration.” After speaking of the act of 1835, ch. 380, sec. 7, as providing that a court of equity may, in some cases, direct bonds to be taken in the name of the State, as obligee, which may be used by any person interested, as public bonds may, the court then say, “and even prior to the passage of the act of 1835, the Court of Appeals held, in 1 Gill & Johnson, 231, that the uniform practice, for twenty years, allowed persons interested to bring suits on bonds taken in the name of the State, although the acts of Assembly, under which they are required to be executed, contain no specific provision for making them to the State, or give to the party, in language, the right to sue. These references are sufficient to show the suit was properly brought. There is no doubt that it is incumbent on the party suing on the bond, to show he has an interest in it before he could recover in a regular trial prosecuted to verdict.”

The laws which provide for the execution of bonds, similar to the one before us, do not require them for the purpose of protecting the rights of the State alone. They are also designed to secure the faithful performance of official duties, in the discharge of which, individuals and corporations have a deep interest, and therefore they should have the privilege of suing such bonds for injuries sustained by them, through the negligence or mal-conduct of the officers. Such doctrine, in regard to public official bonds, we consider as having been long established in Maryland, whatever may be the law elsewhere. And entertaining these views we cannot agree with the defendants’ counsel, in supposing the present equitable plaintiffs could not institute this suit, because they had not obtained authority from the State for that purpose. In addition to the Maryland cases, which have been cited, see also State vs. Dorsey, et al., 3 G. & J., 92, 93.

Unde)- the agreement waiving errors in pleading, and allowing such evidence to be given as might be admissible in any form of pleading, &c., there was no necessity to suggest breaches in the pleadings or upon the roil. An agreement of this sort is to be found in the case of Laurenson vs. The State, &c., 7 Harr. & Johns., 339. There an objection to the pleadings, for the want of breaches, was relied upon, the suit being upon a bond with a collateral condition. The court held the objection to be fatal, unless cured by the agreement; which they thought was a very loose course of proceeding, but nevertheless the court sanctioned it, and held its true meaning to be a waiver, on both sides, of all errors in the pleadings, and to dispense with the necessity for assigning breaches.

. The principles which have been announced in this opinion, we deem sufficient to show that the court did right in admitting the bond objected to by the defendants, in their first bill of exceptions; and that there was no error in overruling the defendants’ objection to the admission of the evidence offered, as set forth in their s^-crd axeeption.

(Decided June 24th, 1858.)

in our opinion, there is evidence tending to establish the right of the equitable plaintiffs to recover for jail fees, and therefore the court committed no error in refusing to grant either the first or third prayers of the defendants, stated in their third bill of exceptions. And their second prayer was properly rejected, because there was no proof in support of it.

We affirm the decisions in both appeals.

Judgment affirmed.