O'Neal v. Board of School Com'rs of Washington County

• Decision Date: 21 June 1867
• Citation: 27 Md. 227
• Parties: JOSEPH O'NEAL v. THE BOARD OF SCHOOL COMMISSIONERS OF WASHINGTON COUNTY.
• Court: Maryland Court of Appeals

27 Md. 227

JOSEPH O'NEAL v. THE BOARD OF SCHOOL COMMISSIONERS OF WASHINGTON COUNTY.

Court of Appeals of Maryland

June 21, 1867

APPEAL from the Circurt Court for Washington County.

The facts of the case are sufficiently stated in the opinof the Court.

At the trial below there were five bills of exceptions taken by the appellant, the first and second of which are omitted, as the questions therein raised, being to the admissibility of evidence, are presented in the fifth exception.

Third Exception: The plaintiffs called as a witness Thomas Maddox, by whom they proposed to prove that the defendant admitted that he had collected and had in his hands the sum of $1,400, for and on account of the school fund collected under the county levy for the year 1854, but the defendant objected to the competency of the said Maddox, as a witness for the plaintiffs; and it being admitted that the said Maddox was the treasurer to the said plaintiffs for the years 1856 and 1857, and that he had, as such treasurer given bond as required by law, the defendant, for the purpose of sustaining his said objection to the competency of the witness, proposed and offered to produce and prove the bond of the said Maddox, as treasurer as aforesaid, and also offered and proposed to prove that the said Maddox, as such treasurer, had received into his hands the money for which this suit was brought, while he was treasurer, by offering to produce and prove the written receipt of the said Maddox, as treasurer, to the defendant for the said money; and by thus showing the interest of the said Maddox in the subject matter of this suit, and in the recovery against the defendant, the defendant proposed and sought to sustain his objection to the competency of the said witness.

But the Court (WEISEL, J.,) overruled the objection, and permitted the witness to be examined. To this ruling the defendant excepted.

Fourth Exception: After proving by the witness Maddox that the defendant had admitted that he, as collector for the year 1854, had collected the sum of $1,400, for and on account of the school fund of said county, the plaintiffs then proposed to prove by the said witness, how much of the said sum of $1,400, so collected, had been paid over to him as treasurer as aforesaid, and how much of the said sum still remained in the hands of the defendant unpaid.

But to the further examination of the said witness as to the payment and receipt of the said money, and as to how much of said sum of $1,400, levied for the use of said school fund for the year 1854, as aforesaid, remained unpaid by the defendant the said defendant objected, and insisted that the said witness was incompetent to testify in regard to said facts or to show that any part of the said sum of money still remained in the hands of the defendant; and to sustain such objection to the competency of the said witness before the Court, the said defendant produced and exhibited to the said witness the following entry and receipt in full:

School Fund of Washington county, $1,400, recd. in full July 25th, 1857.

THOMAS MADDOX, Treas.

And examined the said witness on such objection to his competency, and upon such examination the said witness proved that he was treasurer as aforesaid, and that the said receipt so produced and shown, was his genuine receipt given as such treasurer. And the said defendant, still urging the objection to the competency of the said witness, the counsel for the plaintiffs asked him if he had not a release, and if so, to produce the same; and he accordingly produced a release from the plaintiffs, of himself and his sureties on his bond as treasurer, given on the 29th of January, 1856. And although said release was produced, the defendant still persisted in his objection to the competency of the witness, and asked the Court to exclude the witness notwithstanding the release, insisting that it was not competent for the witness to contradict his receipt, produced and proven as aforesaid. But the Court overruled the objection and decided that it was competent for the witness, as well without as with the release, to contradict his receipt, and to show that the same was not correct, and that he had not in truth received all the money specified therein. To this ruling the defendant excepted.

Fifth Exception: The plaintiffs proved by the witness Maddox, the circumstances attending the giving of said receipt, and that there was a mistake on his part in giving the same, and that although the receipt was an acknowledgment in full for the sum of $1,400, he had not in fact received that sum; that there remained in the hands of the defendant a balance of $417.75, which he, the witness, had never received. Upon all the evidence in the cause, the defendant prayed the Court to instruct the jury that the plaintiffs were not entitled to recover in this cause.

1st. Because the school fund in respect of which this action is brought, belongs to Washington county, and the County Commissioners for the said county have charge of and control over the same, and therefore the plaintiffs cannot maintain this action for the recovery of any part of said fund, or any money that may have been levied and collected as taxes, for the use or on account of said school fund.

2d. Because this action being one of assumpsit against the defendant, cannot be supported without some privity of contract as between the plaintiff and defendant, and that there is no such privity shown to exist in this cause.

3d. Because the school fund for said county was required by law to be applied to the use of the public schools of the said county; and the County Commissioners of said county had no lawful authority to apply any part of the said school fund to any other county purposes than to the use and support of the public schools of the said county; and having applied some part of said fund otherwise than to the use and support of such public schools, the said commissioners could not lawfully levy taxes upon the taxable property of the said county to refund and pay back such part of said school fund, so used and misapplied, until duly authorized by law.

4th. That the plaintiffs in this cause cannot maintain the action to recover of defendant any money that may have been levied by the County Commissioners of Washington county, in the year 1854, and collected by the defendant as taxes, for the use or on account of the school fund of said county.

5th. If the jury find that the money for which this suit is brought, was levied by the County Commissioners of Washington county, on the taxable property in said county, in the year 1854, and collected by the defendant as collector of taxes, then the said sum of money, so levied and collected, remained subject to the order of the said County Commissioners; and unless the said plaintiffs have the order of the said County Commissioners directing the payment of said money, so levied and collected to them for the benefit of the school fund, they cannot recover in this action.

6th. If the jury find that the money for which this suit was brought, was levied by the County Commissioners of Washington county, in the year 1854, on the taxable property in the said county, and collected by the defendant as collector of the taxes of said county, then the said money so levied and collected, was subject to the orders of the said County Commissioners, and would not constitute any part of the school fund of said county, liable to the control and management of the plaintiffs, until actually paid over by the order of the said County Commissioners.

All of which prayers the Court rejected. And to this ruling of the Court, in rejecting said prayers, the defendant excepted, and the verdict and judgment being against him, he appealed.

The cause was argued before BOWIE, C.J., BARTOL and GOLDSBOROUGH, J.

Richard H. Alvey, for the appellant:

The questions in the first and second exceptions, being to the admissibility of evidence, are also presented in the fifth exception, and may be considered in the discussion of the latter exception.

As to the third exception, Maddox was not a competent witness for the plaintiffs; being treasurer, and the facts proposed to be proved, showing prima facie at least, that he had received the money sued for, he was interested in obtaining a verdict against the defendant, because thereby the liability would be fixed on the defendant, and the witness would be exonerated from responsibility to the plaintiffs. Pingree vs. Warren, 6 Greenl. Rep., 457; Emerton vs. Andrews, 4 Mass., 653; Hayes vs. Grier, 4 Binn., 80; 1 Greenl. Ev., sec. 396.

As to the fourth exception: The School Commissioners had no authority to release the bond of the treasurer, in order to make him competent as a witness; the proof showing prima facie, that he had received the money as treasurer, and was therefore accountable. Angel vs. Town of Pownal, 3 Verm. Rep., 461; Fraser vs. Marsh, 2 Stark. Cas., 41.

The Court erred in ruling that the witness was competent, as well uithout as with the release. The witness was clearly incompetent without the release; and, as the determination of the Court necessarily assumed that the witness had no interest in the result of the case, the effect of the ruling was to preclude all consideration of motive, influence, &c., which might have affected his credibility, and to place him before the jury unaffected by the circumstances of his apparent responsibility, and the manner in which he was seeking to be relieved of it; and hence the jury was most likely misled as to the true relation of the witness to the case.

The defendant propounded six prayers, all of which were rejected.

To this rejection the fifth exception was taken.

In reference to the prayers so rejected...