Vansant v. State
| Decision Date | 03 December 1902 |
| Citation | 53 A. 711,96 Md. 110 |
| Parties | VANSANT et al. v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from court of common pleas; Henry D. Harlan, Judge.
Action by the state against James M. Vansant and another. From an adverse judgment, defendants appeal. Affirmed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE SCHMUCKER, and JONES, JJ.
Cowen Cross & Bond, W. Irvine Cross, and Edward Duffy, for appellants.
Isidor Rayner, Atty.Gen., Edgar H. Gans, and W. Calvin Chestnut, for the State.
This is a suit on the bond of James M. Vansant, former clerk of the court of common pleas of Baltimore city, to recover interest alleged to have been received by him on sums of money collected by him, by virtue of his office as such clerk, on account of the state. The declaration alleges that he so deposited said sums of money in bank that they drew large rates of interest during the time the bond was in force, to wit, from the 21st day of November, 1895, to the 10th day of December, 1897. The condition of the bond was that if said Vansant "faithfully performs the duties now required of him by law, or which may hereafter be required of him by law then the above obligation shall be void," etc. The local law of Baltimore city provides for bonds to be given by the clerks of the courts of that city in the penalties therein named (that of the clerk of the court of common pleas being $50,000), "each of said bonds conditioned for the faithful performance of all the duties now required of each of said clerks by law." The state does not rely upon the latter part of the condition, and it is therefore unnecessary to consider the effect of the language, "or which may hereafter be required of him by law," excepting to say that it cannot invalidate the other portion of the bond. There was a demurrer to the declaration, which was overruled; demurrers were filed to the first, second, third, fourth, and fifth pleas, which were sustained; and a number of prayers were passed on by the court; but the questions involved can be considered under three heads:
1. Can the state require Mr. Vansant to account for interest received by him on money he collected for the state, and which he deposited in bank until the time arrived for him to pay it over? The record shows that he opened all the accounts in bank as clerk of the court of common pleas, and between April 13, 1896, and June 2d of that year, he deposited in the American National Bank of Baltimore moneys received by him as such clerk amounting to $174,000, and from April 9 to May 27, 1897, he deposited in that bank $173,000. Between May 1 and June 3, 1896, he deposited in the Third National Bank of Baltimore $37,000, and from April 26th to the 26th day of May, 1897, he deposited in that bank $38,207.05. He remitted all of said sums to the treasurer of the state on the 30th day of June of those respective years in payment of license moneys. In the Mechanics' National Bank of Baltimore he opened one account in the name of "James M. Vansant, Clerk," and another as "James M. Vansant, Clerk, Special," in each of the two years. The total amounts deposited in that bank amounted to $1,025,107.10, of which it was proven he remitted to the treasurer $985, 835.99; the most of it being sent the latter part of June. The cashiers of the American National and the Third National Bank paid him interest by their checks, and the Mechanics' Bank credited an individual account he kept there with interest at the rate of 2 per centum per annum on daily balances. That was also the rate allowed him by the American National, and 1 per centum per annum on daily balances was paid him by the Third National.
It is contended by the appellants that the clerk was the absolute owner of these funds while he held them; that he was simply a debtor to the state, under obligation to account for the principal he received at such times as the law required, and hence was entitled to any interest the funds earned while they were thus held by him. Counsel for the appellants referred to the distinction made by the authorities between cases where the officials were deemed bailees and those in which they were held to be debtors, and seek to show that under our laws the relation of this clerk to the state was merely that of debtor, subject only to such responsibilities as ordinarily attach to one occupying that position. This case, however, does not depend upon the question whether this clerk was a technical bailee or a debtor, but, conceding that he belongs to the latter class, as distinguished from the former, is that the only relation he bore to the state? It does not necessarily follow that because he was a debtor to the state he was the absolute owner of these funds. There can be no doubt that he was not required to return to the state the identical moneys which he received, and, as our statutes are silent as to how or where he shall keep them before the time arrives he is required to pay them over, it must be conceded that it was not a breach of trust for such officer to deposit them in bank. Indeed, we may assume that the law contemplated that he would deposit them in bank, or some other equally safe depository, as no prudent man, be he a private citizen or public officer, would at this day be guilty of the folly of keeping such large sums of money as this clerk handled in his own custody. We are not now concerned, however, as to how far such officer would be responsible in the event of a failure of a bank in which he had deposited public moneys received by him, if he exercised proper precaution in selection of it for such deposits. But although he was not a technical bailee, and was in a certain sense a debtor, did he have such absolute control over these funds as to enable him to use them as he pleased, for his own benefit? Section 38 of article 4 of the constitution of the state provides that the clerk of the court of common pleas shall have authority to issue all marriage and other licenses required by law within the city, subject to such provisions as are now or may be prescribed by law; and the comptroller is required by statute to provide him with blank licenses, upon his requisition. By article 17 of the Code of Public General Laws, every clerk must transmit to the comptroller on or before the first Monday of June and the first Monday of December "a list and account under oath of all public money received by him" (section 7), and on the first Monday of March, June, September, and December in each year to "pay to the treasurer all public money which he may have received" (section 8), and "for receiving and paying over all public money received for licenses, fines or otherwise, the several clerks of courts of this state shall receive five per centum, except the clerk of the court of common pleas of the city of Baltimore, who shall receive one per centum commissions for receiving and paying over such public money." These sections refer to it as "public money" when he receives it, when he reports it, and when he pays it over; and, by section 8, if he fails to pay it within 30 days after the times therein mentioned, his bond may be put in suit, interest at the rate of 10 per centum per annum is recoverable "from the date or dates when the same became payable," his commissions are forfeited, and he may be removed from office. He receives the money by virtue of the fact that he is clerk, and, as such, authorized by law to receive it. His failure to pay it over as required by law not only subjects him to the penalties we have mentioned, but, by section 47 of article 27 of the Code, he is to be deemed a defaulter, and upon conviction to be confined in the penitentiary. In State v. Nicholson, 67 Md. 1, 8 A. 817, this court not only sustained that law as not in conflict with the constitution, which abolishes imprissonment for debt, but, in passing on it, said, "Any other construction would deprive the legislature of all power to punish defaulting officials for the appropriation by them of money received and held in trust for the state," thus showing that public officials who receive such money were deemed to hold it in trust for the state. And why should not a public officer, whose duty it is to collect the state's money and pay it over to the treasurer, not be said to hold it in a fiduciary capacity? The state must collect its revenues through its agents. Certain officials, including the clerks, are made its agents for that purpose. An agent of an individual, who receives his principal's money, is, in a sense, a debtor; but that does not authorize him to use the money for his own benefit, and if he does he can be required to account for it. 1 Am. & Eng.Enc.Law (2d Ed.) 1072. So may a trustee or administrator be a debtor to his cestui que trust, but he does not necessarily discharge his obligation to him by simply paying over the principal he received, but may be required to pay interest, if the fund has earned it. Dalrymple v. Gamble, 68 Md. 156, 11 A. 718. And although this clerk does not occupy the precise relation that such agent, trustee, or administrator does to his cestui que trust, it is of that nature in respect to this public money held by him; and the principle above stated is applicable to him, in so far as he attempts to use the state's money for his own benefit.
Then again, section 80 of article 27 makes 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 this state," guilty of a misdemeanor. Is it to be said that if this clerk had fraudulently appropriated to his own use some part of this money before the time he was required to pay it over,...
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