State v. Wheatley

• Decision Date: 13 January 1949
• Docket Number: 57.
• Parties: STATE v. WHEATLEY.
• Court: Maryland Court of Appeals

63 A.2d 644

192 Md. 44

STATE v. WHEATLEY.

No. 57.

Court of Appeals of Maryland

January 13, 1949

Appeals from Circuit Court, Queen Anne's County; J. Owen Knotts Chief Judge, and William R. Horney and Floyd J. Kintner Associate Judges.

Prosecution by the State against Charles Wheatley for misfeasance in the office of referee for the Employment Security Board of Maryland. From order sustaining demurrers to the indictments the State appeals.

Orders affirmed.

Harrison L. Winter, Asst. Atty. Gen. (Hall Hammond, Atty. Gen. and Edward Turner, of Centreville, State's Atty., for Queen Anne's Co., on the brief), for appellant.

Hilary W. Gans, of Baltimore (Thomas J. Keating, Jr. of Centreville, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON, JJ.

DELAPLAINE Judge.

These three appeals were taken by the State of Maryland from three orders of the Circuit Court for Queen Anne's County sustaining demurrers to three indictments charging Charles Wheatley with misfeasance in the office of referee for the Employment Security Board of Maryland.

Each indictment contained four counts, but the State abandoned its appeal as to the third and fourth counts of each indictment. The first count in the first indictment alleges that defendant was employed by the Employment Security Board as a claims referee charged with the duties of administering the Unemployment Compensation Law in Queen Anne's County, and charged with the duty to find if an unemployed individual claimant is elegible to receive benefits with respect to any week by ascertaining if said unemployed individual claimant is able to work, is available for work and is actively seeking work; and that defendant, in disregard of his duty, did unlawfully, wilfully, knowingly, negligently and recklessly fail, refuse and neglect to find if Edward Kilson, an unemployed individual claimant, 'was able to work, was available for work and was actively seeking work to entitle him to be eligible to receive benefits.'

The second count alleges that defendant, in wilful disregard and violation of his duty, caused compensation payments to be made to Edward Kilson in the sum of $320 without finding if he 'was able to work, was available for work and was actively seeking work to entitle him to be eligible to receive benefits.'

The other two indictments are similar in form. One charges defendant with having wilfully and unlawfully caused compensation payments to be made to Ollie Conyer in the sum of $300; the other charges him with having wilfully and unlawfully caused compensation payments to be made to Woodrow Collier in the sum of $240. The question presented by this appeal is whether the first and second counts of each of the three indictments charge defendant with the common-law crime of misfeasance.

It is a general rule of the common law that wilful neglect or failure of a public officer to perform any ministerial duty which by law he is required to perform is an indictable offense. Commonwealth v. Coyle, 160 Pa. 36, 28 A. 576, 634, 24 L.R.A. 552, 40 Am.St.Rep. 708; Donnelley v. United States, 276 U.S. 505, 48 S.Ct. 400, 72 L.Ed. 676; 2 Wharton, Criminal Law, 12th Ed., sec. 1894. It is accepted that an individual serving in a judicial capacity, in which he is required to exercise his own judgment, is not indictable for mere error of judgment or for a mistake of the law; his act, to be cognizable criminally, must be wilful and corrupt. 1 Bishop, Criminal Law, 7th Ed., sec. 460. But it is a criminal offense for a public officer to wilfully neglect to perform a ministerial duty which he is bound to perform either by common law or by statute, unless the discharge of such duty is attended with greater danger than a man of ordinary firmness and activity may be expected to encounter. State v. Kern, 51 N.J.L. 259, 17 A. 114; Clark and Marshall, Law of Crimes, 4th Ed., sec. 436(f). Thus, in Larmore v. State, 180 Md. 347, 24 A.2d 284, this Court held that an indictment charging that county commissioners negligently and unlawfully approved and passed for payment a fictitious and fraudulent claim, without first having inquired whether such claim was due, charged a dereliction of duty and misfeasance in office at common law and was not demurrable. Likewise, in Bennett v. State, 180 Md. 406, 24 A.2d 786, we held that an indictment was not demurrable which charged a county treasurer with negligently countersigning checks for payment of claims without first having determined that the county commissioners had approved payment of the claims.

The Maryland Unemployment Compensation Law, intended to supplement the Federal Social Security Act, 42 U.S.C.A. §§ 301-1307, was enacted by the Legislature in 1936 in view of the widespread unemployment caused by the depression. Laws of 1936, Dec.Sp.Sess., ch. 1, Code Supp.1947, art. 95A, secs. 1-22; Maryland Unemployment Compensation Board v. Albrecht, 183 Md. 87, 36 A.2d 666. The statute provides that an unemployed individual shall be eligible to receive benefits with respect to any week only if the Board finds that he is able to work, is available for work and is actively seeking work. Sec. 4(c). The duties of examiners and referees are expressly prescribed by the statute. The statute directs that, when a claimant makes application to an examiner, the examiner shall promptly make a determination upon the claim. His determination 'shall include a statement as to whether and in what amount claimant is entitled to benefits for the week with respect to which the determination is made and, in the event of denial, shall state the reasons therefor.' Sec. 6(c). If the claimant is dissatisfied with the examiner's determination, he may file an appeal therefrom with the Board. Unless the appeal is withdrawn or is removed to the Board, a referee designated by the Board, after affording the parties reasonable opportunity for a fair hearing, 'shall make findings and conclusions and on the basis thereof affirm, modify, or reverse such determination'. Sec. 6(e).

The statute further provides that the decision of the referee shall be final unless further review is initiated by the Board within the time prescribed. Sec. 6(e). Thus, the Board may on its own...