Montgomery County sentinel. [volume] (Rockville, Md.) 1855-1974, 1883-06-29
Important Decision.

N"sAA iAAoo"iio AohuVu uoWu ucClSiOIS III Jour
teen outof about forty cases adjudicated at
the April Term:
In the case of Rob't T. Banks VS.. the
State of Maryland Judge Alvey delivered
the following opinion affirming the decision
OF the lower court against Mr.. Banks for
$1,000:
"Ihe sole question in this case is whether
the appellant, as Register of Wills for the
city OF Baltimore, is entitled to retain the
fve per cent. commission allowed by law
on the amount of taxes on collateral in
heritances, and on commissions of executors
and administrators received by him over and
above the salary and expenses of his office
allowed by the constitution of the State
Or in other words, whether he is entitled
to receive and retain the five per cent. COM
mission on the taxes mentioned as extra
compensation, and not as fees or receipts of
his office as Register of Wills, and for which
he is required to account? This question,
we think, is clearly answered by simple
collation. of the provisions of the constitu-
ton, and of the statute law Of the State upon
this subject
"Fhe constitution, article 3, section AS,
provides that the amount OF compensation
10 the Clerks OF Courts and Registers of
Wills shall not exceed in the several coun-
ties the sum Of $4,000 a year, and in the
city OF Baltimore $4,000 u year over and
above office expenses and compensation to
assistants" and further, shat such compen-
sation of Clerks, Registers, assistants and
office expenses sinai! always be paid out of
the fees or receipts Of the office, respectively"
A similar provision was embodied in the
constitution Of 1851 TART 8, sec. 40,) and that
of 1864 (art 3, sec. 44) In article 10, sec
ton /, OF the present constitution it is pro-
vlded that every person holding any office
created by or existing under the constitu-
ton Or laws Of the State, except Justices
OF the Peace, Constables and Coroners,) or
holding any appointment under any court
OF the state, whose payer compensation is
derived from Sees or moneys c0mi1g into his
handS for te itSclta,ye Of his c6icdd duties, or
~ dity tnfy gfotciag ont Of or connected aotth
his office, snail keep book in which shall
be entered every sum, &c, received by him
or on his account US payment or eompensa.
tlon ior hte, periurnB2lec VI official Duties"
Sc., IA copy Of which shall be returned To
the Comptroller" &c. "And each of the said
ofllcers, when the amount received by him
for the year shall exceed the sum which he
is by law entitled to retain as his salnry or
compensation Tor the discharge of his du-
ties and for the expenses Of his office,
shall yearly pay over to the Treasurer of
the State the amount OF such excess" &c.
The section further provides that ii any
officer shall fail to comply with the proceed
ing provision Tor the period of thirty days
after the expiration OF each and every year
OF his office, the office shall be deemed to be
vacant and the Governor Of the State shall
appoint TO fill the same. Corresponding
provisions, though not SO specific and ex
tended, are found in the constitutions OF
1901, (article 10, section " and of 1864 Tar
ticle IL, section ~ 1t was by the act of 1874,
chapter 1S4, that the commissions allowed
10 executors and administrators were first
taxed and by the act of 1874, chapter 237,
that collateral inhertances were first taxed
Tor revenue 10 the State; and by those acts
and the supplements thereto it was made
the duty oil the several Registers Of Wills to
receive and to account for TO the treasury of
the State the taxes thus imposed. The off
clal bonds OF the Registers We're made liable
for the taxes received, and by the acts of
1915, chapter II section 3, and Of IS47, chap
ter 222, section ~ the Registers were re-
qnired TO account to the treasury at stated
periods OF the year, and were allowed five
per cent. commission on the amounts paid
over; and in default the Registers bond was
liable To suit, and recovery thereon was de-
clared to be evidence of misbehavior in
office, and TO operate ipsO .tdcto removal
theretrom, and to authorize the Governor
TO fill the vancy. These provisions, with
but slight variation or change, were en-
bodied in the code, Article 81, sections 100,
100, 145, lag, LAT, and have been re-enacted
by the act of 1874, chapter 4S3, sections 80,
l01, 134, l35 and 1876. The act of 1853,
chapter 444, was the first to provide for ac
hU l,a AL
the Comptroller Of the State in respect to
the emouments Of their offices. This was
under and To carry into execution the pro
visions OF the constitution of 1851, article 10. |
section /. This act required all tie emotu.
oaehts OF the office to be taken into the ac-
count, and Tor the excess, after deducting
the expenses OF the office, the official bond |
was made liable. These provisions have also |
been Incorporated into the code and are still |
IN lorco, AS Will appear by sections 267, 1853 |
and 26J, ol article 81, under the division of I
that article entitled Register of Wills" |
and among the sections defining his official |
luties.
Now, in view OF the constitutional pro-
visions, and the preceding and subsequent
legislation upon the subject 10 which we
have referred, is there any room to doubt
hat the commissions in question were re.
,eived for the discharge of official duties,
md formed part Of the emoluments of the
1flice held by the appellant? II, in the Ian
suage OF the constitution, the money came
INTO his hands sin any way growing out of
)r connected with his Office" he is required to
account Tor IL as part OF the income or re-
,eipts OF the office. The assessment of the
axes is upon funds within the administra-
i've control OF the office, and the Registers.
~ the DT fia iIaeyo ~ th., {
md the Sherffs, are made receivers of the
public revenue, and their bonds are made
liable for II faithful accounting To the treas
Try. There can be no question of the DOW
,r of the Legislature to prescribe the duties
Of the office, and to embrace within the
cope of those duties the recepting and nc.
for the taxes on which the com
Missions had been allowed. 1t is quite GER
ain that it was only in his official capacity
ind because he was Register of Willis that
ne received or had any right to receive the
axes or the commissions thereon. His off
:ial bond was liable for these taxes, and vet
he condition Of that bond is simply that the
appellant viii faithfully perform the office
II Register Of Wills. Code, art 81, see
.53. The Legislature, in requiring the Reg
ster Of Wills, whoever he may be, To re-
;eivc and account for the taxes, and making
his Oiiiclal bond liable for default therein,
made such receiving aud accounting official
luties pertaining TO the Office OF Register Of
Wills; and hence the commissions sued for
lid come into the hands Of the appellant
Tor the discharge Oi official duties, and IN n
way growing ont Of and connected with his
office. And such being the conclusions Of
This court upon the agreed statement Of facts,
the Judgment appealed from must be af
frmed Judgment affirmed"
Choice Cigars-The best five cent
cigars ever offered in this county can be
found at Owens Drug Store. These cigars,
The "Figaro" and stylish" ARE half IIa.
vana, and give n most delightful smoke
The opportunity 10 get these cigars ut such
q low figure is the result Of the reduction
in the tax on tobacco. june 15.3m
MONTGOMERY HOUSE,
GEORGETOWN. D @.
lNu xxrxx xxyrvnv a ~