State v. Archer

| Md. | Jul 1, 1890

Lead Opinion

Robinson, J.,

delivered the opinion of the Court.

The defendant in error was indicted under section 80 of Article 27 of the Code, which provides that “ Any person holding office in this State, whether elected, or appointed by the Governor, by the corporate authorities of Baltimore, or by any other authority legally authorized to make such appointments, who shall fraudulently embezzle or appropriate to his own use money, funds or evidences of debt, which he is by law bound to pay over, account for or deliver to the treasurer of this State, or to any other person by law authorized to receive the same, shall be guilty of a misdemeanor,” &c.

The indictment charges that the “ defendant in error,” being the duly elected and qualified treasurer of the State, fraudulently embezzled and appropriated to his own use money and evidences of debt belonging to the State, and which he was bound to account for and deliver to Edwin H. Brown, his successor in office. The sole qiiestion is whether the offence thus charged comes within the- provisions of the Code, or, in other words, whether the Code provides for the punishment of the State treasurer who embezzles the State funds.

The question is a narrow one, and turns entirely upon the construction of the statute. A good deal was said about the general rules by which Courts are governed in the construction of statutes; but these are too well settled to admit of much discussion. All agree that the intention of the Legislature must govern in the construction of all statutes. This rule lies at the bottom of all statutory construction. The law, it is true, in its tenderness for life and liberty, requires that penal statutes shall he strictly construed; by which is meant that Courts will not extend the punishment to cases not plainly within the language used. At the same time, such statutes are to be fairly and reasonably construed, and Courts will not, by a narrow and strained construction, exclude from their operation cases plainly within their scope and meaning. As stated by Sedgwick on Statutory Law, p. 287, and quoted with approval by Bkamwell, B., in Foley vs. Fletcher, 28 L. J. Exch., 100: cc The more correct version of the doctrine appears to be that statutes of this class are to be fairly construed and faithfully applied according to the intent of the Legislature, without unwarrantable severity on the one hand or equally unjustifiable lenity on the other; in cases of doubt the Courts inclining to mercy.” After all, then, it is the legislative intent that must govern in the construction of penal as in all other statutes. Lyon’s Case, Bell’s Crown Cases, 45; Nicholson vs. Fields, 31 L. J. Exch., 233; The Gauntlet L. R., 4 Privy Council Appeals, 191; United States vs. Lacher, 134 U. S., 624.

This intention is to be ascertained, primarily, of course, from the language of the statute itself, and, if the language used is plain and unambiguous, the Legislature must he understood as meaning what they have exjnessly declared. Row, what is the language of the statute Tinder consideration? “Any person holding office in this State * * * who shall fraudulently embezzle or appropriate to his- own use, money, funds, or evidences of debt, which he.is by law bound to pay over, account for, or deliver to the treasurer of the State,” etc. Provision is thus made for the punishment of all officers who shall embezzle funds of the State, which they are bound to pay over or deliver to the treasurer, but this, it is argued, does not include the treasurer because he cannot be said to be hound to pay over or deliver such funds to himself. If the statute stopped here, there might be some ground for this contention. But it does not stop here, having made provision for the punishment of such officers, that is to say, officers whose duty it is to pay over and account for to the treasurer; it further provides for the punishment of all officers who shall embezzle money, funds, or evidences of debt belonging to the State, which they are bound to pay over, account for or deliver “to any other person by laio authorized to receive the same.” Such is the plain and unambiguous language of the latter part of the enacting clause, and it would be difficult to employ language broader and more comprehensive. Thus the body of the Act not only provides for the punishment of such officers who shall embezzle State funds which they are bound to pay or deliver to the treasurer, but also for the punishment of all officers who shall embezzle money or funds of the State which they are bound to pay or deliver to any person lawfully authorized to receive the same. So the question comes to this: Did the defendant in error, embezzle or appropriate to his own use, moneys, funds, or evidences of debt belonging to the State, which he was bound to pay or deliver “to any person by law authorized to receive the same ?” If he did, then the olfence charged in the indictment is one within the very letter of the statute. The embezzlement being admitted by the demurrer, the only question is whether the funds embezzled were funds which he was hound to pay over, account for, or deliver to any person lawfully authorized to receive the same, xind as to this there cannot he, it seems any question. He is the most important financial officer of the State. The entire revenue of the State, amounting to millions of dollars, is paid to him, and by him to he disbursed in the mode and manner provided by law. Besides this, the Sinking Fund, the productive and unproductive assets, are entrusted to his care and custody, and the surplus revenue remaining in the treasury, he is directed to invest from time to time, in State or other securities, all of which are committed to his keeping. These funds belong to the State, and are held by him as treasurer, and when he ceases to he treasurer, whether by removal or otherwise, he is hound to pay over, account for, and deliver such funds to his successor in office, who is the person lawfully authorized to receive the same. Upon his failure to do so, his official bond avouM be liable in a civil action, and for the embezzlement of such funds by him while in office, the defendant in error would be criminally responsible. Now, against this plain and obvious construction of the statute, what is the contention on the other side ? There must he, it was argued, a point of time when the crime was committed, and it could not he said to have been committed before the defendant was dismissed from office, because there were no funds which he was obliged to paj'' over or deliver to the treasurer of the State, he being the treasurer himself. Nor could the crime he said to have been committed after he was discharged from office, because he was not then a person holding office. So according to this contention, there was no point of time when the defendant could have committed the crime. The bare statement of such an argument is an answer to the argument itself. There must have been, it is true, a point of time when the crime was committed, and that point of time, ivas when the defendant embezzled the funds of the State in his possession, as its treasurer, and which he was bound to pay over, account for or deliver to any person lawfully authorized to receive the same. He was bound, as we have said, to pay over, or deliver such funds to his successor in office, and the crime was complete when he embezzled or appropriated the same to his own use. The crime being complete, his subsequent removal in no manner affected his criminal responsibility. He is indicted as Stevenson Archer, and as such he is answerable for a crime committed by him while holding the office of treasurer.

And, although his official character is gone, his personal responsibility for the crime thus committed remains. So looking to the face of the statute itself and construing the language used in its natural, ordinary, and common sense meaning, we all agree that the offence charged in the indictment is one strictly within the terms of the statute.

But, if there could be any question as to the construction of the words of the statute, the Title to the statute shows beyond doubt that the Legislature meant to provide for the punishment of every officer who shall embezzle or appropriate to his own use money or funds belonging to the State. Section 80 of Article 27 of the Code is a codification' of the Act of 1854, chapter 196, and the title to the Act reads as follows: “ An Act to punish the fraudulent embezzlement or appropriation of money, funds or evidences of debt by persons elected to any office, or holding office under the Governor of this State, or under the corporate authorities of Baltimore, or under any other authorities legally authorized to appoint to said offices.”

This language the counsel for the defendant in error admit is broad enough to include the treasurer of the State; and, although the title will not he permitted to control the express language of the Act, yet, if the language is somewhat obscure or doubtful, it may be considered to aid in the interpretation of the Act, and thereby give to the enacting clause a meaning consistent, rather than at variance, with the clear title of the Act. Canal Company vs. Railroad Company, 4 G. & J., 90; Clark vs. Mayor and City Council of Baltimore, 29 Md., 285; Shaw vs. Ruddin, 9 Ir. Com. L. Rep., 214; Brett vs. Brett, 3 Addams’ Eccl. Rep., 211; Hardcastle’s Statutory Law, 94; Myer vs. Car Company, 102 U. S., 1.

(Decided 1st July, 1890.)

So, if there be any doubt as to the precise meaning of the language used in the body of the Act now before us, which we by no means concede, yet, when construed in connection with its title, we are forced to the conclusion that the Legislature meant to provide for the punishment of every officer Avho shall embezzle funds belonging to the State, and Avhich he was bound to pay OA^er, account for or deliver to any person lawfully authorized to receiAm the same. Any other construction would, it seems to us, do violence not only to the plain and unambiguous language of the statute itself, but Avould in a measure defeat the wise and salutary purposes for which it was passed.

The object of the statute was to protect the State against loss from embezzlement of the State funds by State officers, and it would be strange, indeed, that the Legislature should provide for the punishment of all officers except the treasurer, who is the most important financial officer of the State, and by the official misconduct of Avhom the State might suffer the greater loss and injury. To such a strained and uarroAv construction as this we cannot agree.

Judgment reversed, and cause remanded.

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Concurrence Opinion

Chief Judge Alvey

delivered the following concurring opinion, in which Judge Irving united:

This case is brought into this Court by the State, on petition and assignment of errors, from the Criminal Court of Baltimore. The indictment consists of four counts, all framed under section 80 of Article 27 of the Code. The first count charges that the accused, being the treasurer of the State, and as such having in his possession and custody certain bonds for the payment of money, the property of the State of Maryland, unlawfully and fraudulently did embezzle tlie same; and which bonds the accused was bound to account for and deliver to Edwin H. Brown, duly appointed and qualified, treasurer of the State, his successor in office.

The second count is like the first, except that it charges that the accused, being the treasurer of the State, and as such having in his possession certain bonds described, the property of the State, did unlawfully and fraudulently appropriate the same to his own use; and which said bonds the accused was bound to account for and deliver to Edwin H. Brown, the treasurer of the Staté, duly appointed and qualified, his successor in office.

The third count charges that the accused, being the treasurer of the State, was, as such treasurer, in possession of a large sum of money, the property of the State, and being so in possession of such sum of money, he unlawfully and fraudulently did embezzle the same; and which sum of money he was bound to pay over, account for and deliver to Edwin H. Brown, the treasurer of the State, duly appointed and qualified, his successor in office. And the fourth count is the same as the third, with the difference that it charges that the accused wrdaiofuUy and fraudulently did appropriate to his own use the sum of money mentioned in the third count.

>The accused demurred to each count of the indictment, and the demurrer was sustained and the indictment quashed.

By the assignment of errors it appears that the Court below held that section 80 of Article 27 of the Code, does not apply to or embrace the treasurer of the State, as one of the officers contemplated by that section; that the treasurer being the officer to whom the accounting is to be made, he is not one of the officers made liable to prosecution for fraudulently embezzling or appropriating to his own use the money or funds of the State. That no officer is liable to prosecution for embezzlement under the statute, unless at the time of such embezzlement or appropriation of the money or funds to his own use, he was bound to pay over, account for, or deliver them to the treasurer; and that as the treasurer was not bound to account for, pay over, or deliver such money and funds until he had ceased to be treasurer, and then to his successor in his office, the conclusion is deduced that the provision of the statute has no application to the treasurer of the State, for any embezzlements that he may have committed while in office. Or, as contended by the counsel for the accused, the offence can only be committed by a person holding office; but the statute does not embrace all office holders. That it expressly includes only those office holders who are obliged to pay over to the treasurer; and as the treasurer cannot be said to be obliged to pay over to himself, therefore he is not included by the terms of the statute.

If this be the true construction of the statute it certainly shows our law to be lamentably defective in a particular most important to the protection of the people of the State. That all persons holding office in this State should be liable to prosecution for. the embezzlement of public funds, save and except the one officer whose special duty it is to keep safely and render a faithful account of all the money and funds of the State that may have come into his hands or custody, is a state of things that no one could have supposed to exist. It is certainly not fair to the Legislature of the State to suppose that it could have intended such a state of the law to exist, when we see how comprehensive are the provisions of the statutes to secure a faithful accountability from all persons collecting and holding the public funds. But does this extraordinary exemption claimed for the treasurer result from a fair and reasonable construction of the statute? I think not.

The section of the Code, under which the accused has been indicted, employs these brief but comprehensive terms: “Any person holding office in this State, whether elected, or appointed by the Governor, by the corporate authorities of Baltimore, or by any other authority legally authorised to make such appointments, who shall fraudulently embezzle or appropriate to his own use money, funds or evidences of debt, which he is by law bound to pay over, account for, or deliver to the treasurer of this State, or to any other person by law authorized to receive the same, shall be guilty of a misdemeanor, and shall, upon conviction thereof, he sentenced,” &c.

Words more comprehensive than these could hardly be used to embrace every officer in the State accountable for public money or funds in his possession or control. There can be no question, of course, of the fact that the accused was an officer in the State, duly elected by competent authority, and that it was by virtue of his office that he became possessed of the money and bond's of the State, charged to have been fraudulently embezzled and appropriated by him. It is true, while he remained in office he was the financial agent and representative of the State to whom all other officers holding the State’s funds were bound to account; but it does not follow that he was not also bound to account. While he remained in office, and was in the exercise of its functions, the form of accounting with himself was not observed; but from the moment he ceased to be the incumbent of the office, and there was a successor appointed and qualified, he was bound to account for and pay over all the money and funds that had come to his possession belonging to the State that had not been lawfully disbursed by him. This is the clear import of those provisions of the Constitution and laws of the State, prescribing his powers and duties, as it is of the oath of his office, and the bohd given for the faithful discharge of those duties; and his duties of office have not been performed until he has fully accounted with and paid over to his successor all the money and funds for which he is bound to account. The words of the statute relied on as showing that the treasurer was not intended to be embraced, viz., “which he is by law bound to pay over, account for, or deliver to the treasurer of the State,” do not show'any such legislative intention. They do not show that the treasurer was intended to be excluded from the operation of the statute, but are only descriptive of the liability to account; and certainly the treasurer is bound to account to his successor. And therefore, if during the period of his incumbency of office, and thereafter, until he has fully discharged the duties of the office, by accounting for and paying over the funds belonging to the State, he fraudulently embezzles or appropriates them to his own use, he is clearly within the terms and purview of the statute, and liable to indictment for such embezzlement and fraudulent appropriation. For though it be true that he does not account to himself while holding the office, yet, after his successor is appointed, he continues to hold an official relation to the department until he has fully discharged all the duties assumed by him, by fully accounting for and paying over the funds of the State to his successor; and until this be done he is an officer within the meaning and sense of the statute. He holds the money and funds of the State, not as his own, but in an official capacity of agent or trustee of the State, and as such he is liable for his frauds and embezzlements.

(Filed 3rd July, 1890.)

I concur with the rest of the Court, in the conclusion reached by them, and am decidedly of opinion that the judgment sustaining the demurrer and quashing the indictment must be reversed.