State v. Denton
| Citation | 22 A. 305,74 Md. 517 |
| Parties | STATE v. DENTON, (THREE CASES.) |
| Decision Date | 17 June 1891 |
| Court | Maryland Court of Appeals |
Error to circuit court, Howard county.
Argued before MILLER, ROBINSON, BRYAN, IRVING, BRISCOE, and MCSHERRY, JJ.
Atty. Gen. Whyte, Joseph D. McGuire, and Henry E. Wootton, for the State.
Sebastian Brown, Charles K. Dorsey, and Edward H. Gans, for Denton.
The appellee was indicted by the grand jury of Howard county for embezzlement. The indictment alleges, in substance, that in July, 1889, Denton was clerk to the county commissioners of Howard county, and that he received and took into his possession for and on account of his employers, the said county commissioners, a certain sum of money, the property of the county commissioners, and that he thereafter fraudulently and feloniously embezzled, secreted, and made away with the same. This count of the indictment was framed under and founded on section 75, art. 27, Code Pub. Gen. Laws. The second count charged the larceny of $109.72, "current money, a more particular description of which said money the jurors aforesaid have not and cannot give." Each count was demurred to, and, the circuit court having sustained the demurrer, the state has brought the record into this court by petition as upon writ of error.
The seventy-fifth section of article 27, Code Pub. Gen. Laws provides that "whosoever, being a cashier, servant agent, or clerk to any person, or to any body corporate, or being employed for the purpose or in the capacity of a cashier, servant, agent, or clerk by any person or body corporate, shall fraudulently embezzle any money, * * * which, or any part whereof, shall be delivered to or received or taken into possession by him, for or in the name or on the account of his master or employer, shall be deemed to have feloniously stolen the same from his master or employer," etc. It is insisted that a clerk to the county commissioners is a public officer, and therefore not within the purview of this statute, though it is not conceded that section 80 of the same article is applicable to him. This latter section enacts 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," etc. By section 1 of article 25 of the Code it is provided that "the county commissioners of each county in this state are declared to be a corporation, and shall have full power to appoint * * * road supervisors, collectors of taxes, trustees of the poor, a clerk to their board, and all other officers, agents, and servants required for county purposes," etc. By the local laws of Howard county (article 14, § 44, Pub. Local Laws) it is enacted that "the county commissioners may appoint a clerk, and allow him a salary not exceeding five hundred dollars per annum, and they may prescribe his duties, and may require him to give bond for the faithful performance of those duties."
We think it perfectly clear that section 80 of article 27 of the Code has no application to the case at bar, and, unless section 75 is broad enough to cover it, there is no provision in the criminal law of Maryland to reach the appellee. As a consequence, he, and a very large class of other persons holding similar positions of a public or quasi public character, could embezzle with absolute impunity. This, it may be safely assumed, was never intended by the legislature, and the statutes ought not to be so construed as to bring about such a result, if they are capable of being fairly interpreted in a way to embrace every fraudulent misappropriation on the part of those who hold appointments or employments or relations of trust. It is true that section 80 applies to public officers, but not to all public officers. That section is restricted and confined to such public officers as are required by law to account, pay over, or deliver to the treasurer of this state, or to any other person by law authorized to receive the same, any money, funds, or evidences of debts, etc. If the officer be a public officer, and yet not be required by law to account with or to pay over to the state treasurer, or to some other person by law authorized to receive the money, he is not within the eightieth section, even though he should embezzle the funds which came into his hands; and he is not within the eightieth section, because he does not belong to that class of public officers described in and intended to be affected by that section. Now, the law imposes on the clerk to the county commissioners no duty to collect or to pay over any money, either to the state treasurer or to any one else; and, whether he be treated as a public officer or a private servant, he does not fall within the class at which section 80 was manifestly leveled. His tenure of the position is at the will of the board appointing him. His duties, with two or three unimportant exceptions, under article 51, § 8, and article 81,§§ 42, 43, Code, are nowhere defined in the Code, and his compensation, payable out of the public revenues of the county, is fixed and regulated by the county commissioners. He exercises no power, apart from the exceptions just indicated, which is not performed for and on behalf of his employers. He has no independent functions, and no duties beyond those prescribed from time to time by the commissioners who have appointed him. He is in every respect subordinate to them, and in no particular independent of them. Every act that he does is done, not in virtue of an independent official position held by him, but as the clerk, the agent, or the servant of a superior. He acts for them, and as they direct, and not otherwise. He is, in fine, just what section 1, art. 25, calls him,--a clerk to a body corporate, appointed by that body, subject to its authority, and consequently its employe. Between him and the county commissioners, all of the ordinary attributes of service exist.
The reasons just given for excluding the appellee from the operation of the eightieth section bring him clearly within the scope of the seventy-fifth section. He is a clerk to a body corporate, and as such clerk, according to the concessions of the demurrer, he fraudulently embezzled money received by him for and on account of his employer. The fact that he is a clerk to a public corporation does not put him outside of the seventy-fifth section, because that section is broad enough to embrace public as well as private corporations; nor does the circumstance that his salary is paid out of the public revenue of the county affect in the slightest degree his liability under this statute, because the mode of payment does not determine the character of the office held, that is, does not make it an independent office if it be not otherwise so. The act of 1820, c. 162, as amended by Acts 1880, c. 458, and 1886, c. 310, forms section 75 of article 27 of the Code Pub. Gen. Laws. As originally passed, it was nearly an exact transcript of 39 Geo. III. c. 85, adopted in 179...
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