Bradford v. Jones

Mason J.,

delivered the opinion of the court.

The Court of Appeals find no difficulty in disposing of the two constitutional questions piesented by the record in this case. There is nothing in the act of 1841, ch. 271, repugnant either to the old or new constitution. The old constitution reposed in the legislature, the power of fixing and ¡providing for the salaries of all judicial officers, while the new constitution determines, by its own terms, the compensation to be allowed to the judges, and provides that “the same shall not be increased or diminished, during the time of their continuance in office.” In this respect those two instruments are wholly dissimilar. In pursuance of the powers thus vested -in the legislature, under the old constitution, that body, from time to time, has passed laws imposing taxes, for the purpose of paying the salaries of the judges. No question has been raised, as to the right of the legislature to subject the fund contemplated by the act of 1841, to taxation for general purposes, The power is too clear to be disputed. But the question pressed upon us is, that when this tax is levied and collected, it cannot be applied to the increase of the salaries of the judges, because it would be granting them “fees and perquisites,” in contravention of the 30th article of the bill of rights. That inhibition was designed to preserve the purity and uprightness of our judicial officers, by preventing them from receiving special compensation or gratuities, for particular services rendered, and which were more or less *369 to depend and be contingent upon those services. In the present case the tax having been imposed upon a legitimate subject of taxation, and it being in nowise dependent upon the action of the judge, and not to be increased or diminished, or in any way affected, by any thing he can do, it cannot be supposed to influence by possibility his judicial independence or purity, and therefore is not to be regarded as a perquisite or fee in contemplation of the constitution. A fund thus raised by taxation, can be as well applied by the legislature to the payment of the salary of a judge, as it could be to the defrayment of any other expense of government.

But in addition, it is expressly provided in the 52nd article of the old constitution, that no judge shall receive “any fee or reward but what is or shall be allowed by law.” If this fund is not appropriated to the judges “by law,” we- are at a loss to discover how else it can be claimed. This court therefore regards the act of 1841, as but an exercise of the power vested in the legislature, of increasing and regulating the salaries-of the judges, and of providing the means of paying them.

In addition to the views already expressed on this point, it may be remarked that the constitution early underwent legislative interpretation on this subject, and we accordingly find a series of acts passed, authorising judicial officers to-receive fees by way of compensation.. They cover a period of nearly seventy years, and relate to the chancellor, judges of the general court, of the Court of Appeals, and of the county courts; and in fact, a portion of the judiciary, the magistracy for example, never received any thing but fees by way of compensation. Had we any doubt of the constitutionality of the act of 1841, this constant, long and uniform interpretation ought, certainly, to remove it.

By the new constitution it is provided, that the judges-holding office under the old constitution, should continue to act in their judicial capacities until their successors should qualify. The effect of this provision was to continue their salaries, inasmuch as it continued their labors; and the State was, in the mean time, to receive the benefits of their services. *370 The act of 1841 was designed, in part, to provide for those salaries, and was therefore not impaired by the new constitution, any more than any other of the revenue laws. The salaries provided for by the new constitution, were intended to relate to the judges chosen under that system, and not to the old officers, whose terms of service expired with the qualification of their successors. They continued “to hold and exercise their offices, according to their present tenure,” which clearly embraced their present salaries. If, therefore, one part of their compensation, the fruits of the act of 1841, be taken away from them by the new constitution, their entire salary would share the same fate: and they would thus be required to labor from the 4th July to 1st December, without remuneration. Such a construction cannot be given to the new constitution.

We adopt the views of the court of common pleas in regard to the effect of the act of 1849, chap. 354. This will render any consideration of the question touching the permanency of the act of 1841, chap. 271, unimportant. Admitting that act to have expired, as is contended by the appellees, on the 1st January 1850, it is the opinion of this court, that it was revived, or re-enacted, by the act of 1849, chap. 354. The title of the last named act clearly indicates a purpose to continue in force the acts to which the act of 1841 was supplemental, because it purports to be “an act to continue in force such acts as would expire during the present session.” Although the title of an act is not a part of the enacting portion , of the law, yet, by an established rule of construction, it is always to be resorted to, as throwing light, as to the intention of the legislature, upon doubtful and uncertain language used in the body of tire law. There is nothing in the enacting part of this law repugnant to the language in the title, and it may therefore be taken, as explaining the meaning of the law which, without such explanation, might he ambiguous. We may then safely give to the term “with",” which’ in some connections, is rather an indefinite expression, the same meaning which belongs to the word “during,” used in the title; and *371 as the act of 1841 expired during that session, it was clearly embraced within the purview of the reviving statute. The law not only “continues in force" previous expiring acts, but actually “re-enacts” them, which is certainly broad enough to embrace the law in question. The act of 1841 provides, “that there shall be, and is hereby imposed on all moneys thereafter to be deposited in Baltimore county court, or coming into the hands of trustees, or other officers of said court, or persons, for distribution, under its orders and authority, the sum of one per centum, and to be paid over to the clerk oí said court,” &c. Under previous enactments, the sums thus to he collected goes to the judges of Baltimore county court, as part of their compensation. At the time the tax contemplated by the act of 1841 accrued, the services of the judges had been rendered which it was designed to remunerate, and therefore the claim to it had become a vested right. In the language of this court, in the case of the State vs. Mayhew, 2 Gill, 498 , this was a “legislative levy” upon the fund in question — fixed and determined beyond all contingency, before the judges went out of office; and the mere delay to have an account stated by the auditor, or to pay the amount ©ver to the clerk, cannot in any way impair their right to the tax.

The seventh section of the tenth article of the new constitution, provides, that “all rights vested, and all liabilities incurred, shall remain as if this constitution had not been adopted.” Apart from this, the same question, in principle, has been decided by the Supreme Court of the United States, in the ease of Shore vs. Jones, 1 Brockenhorough, 298, and 1 Wheat., 474 . In that case the question was presented, whether the representative of the person who was surveyor of that por!, at the time of the seizure, under the embargo act of Congress, was entitled to a portion of the money resulting from the condemnation, or, whether it was to go to his successor in office, at the time of the condemnation ? The court held, “that the right of the collector to forfeiture in rem, attaches on seizure, and to personal penalties on suits brought; and in each case it is *372 ascertained and consummated by the judgment, and it is wholly immaterial whether the collector die before or after judgment. And they are further of opinion, that the case of the surveyor is not in this respect distinguishable, in any manner, from that of the collector. We are therefore of opinion, that the representatives of the deceased collector and surveyor, and not the present incumbents in office, are entitled to the distributive shares of the moiety.” The present case is analagous to the cases of forfeiture alluded to. By the common law, if a party be entitled to a share of a thing forfeited, his right relates back to the time of the seizure. In the present case the services had been rendered, and the fund out of which those services were to be compensated, was fixed and ascertained, and had thereby become liable to taxation under the law. What more could be necessary to consummate the right of the party who had been designated as the recipient of it?

We do not think the objection of the appellant’s counsel, well taken, that the point we have last been considering is not properly before this court, because it was not embraced in the appellee’s exceptions, nor certified by the court below, as one of the points raised in that court, as required by the 4th section of the act of 1849, chap. 88. We think in all cases where points are raised by exceptions, and by means of an opinion of the court filed in the case, it would be a sufficient statement of the points in contemplation of the act of 1849. The manifest design of that law was to require the inferior court to present distinctly those questions only which were considered below, and to confine the appellate court, in the revision of the cases, to those points. It would seem to us that no better mode of presenting those questions could he suggested, than by means of an opinion; and when thus presented, there could be no possible necessity of repeating them after the appeal had been taken.

The same views apply to the question, whether any right vested in the clerk of Baltimore county court under the act -of 1841, chap, 271, to collect the fund in controversy ? The consideration of this particular point was involved in the views *373 ■expressed by the court below, and we therefore feel ourselves called upon to dispose of the questions on the appeal now before us. Although it is a question which concludes the present case, it is nevertheless one which does not materially affect the merits of the more important matters of controversy growing out of the construction of the act of 1841.

The case of the clerk is unlike that of the judges, as respects the tax in question. The judges are to he regarded as having rendered the services for which the tax was designed to compensate, at the time it accrued; and as soon as the tax did accrue, the right of the judges to the same attached. But not so with the clerk. Under the law, he is but a ministerial officer of the government, designated to correct and disburse a particular fund. No officer can be said to have a vested right to perform any particular service, so as to secure the compensation for that service; but he may well claim, as a vested right, the compensation after the service has been rendered, or after the obligation or liability to perform it has become fixed. What is the service to be rendered by the clerk under this act? It is, to collect and disburse the tax which it imposes. This service was clearly not rendered, because the tax was never collected. The next question to be considered is, bad the obligation of the clerk to collect this tax, become so fixed at the time he went out of office, as to render his bond liable for an omission to do so? We think not. At what moment of time could the clerk legally have demanded the payment of this tax from the trustee? It has been argued, that his right to collect this tax, accrued as soon as the right of the judges to tire same, became fixed and vested. We are of a different opinion. This fund, it will readily be admitted might have been either diminished or increased by the subsequent proceedings of the court, after the nisi affirmance of the auditor’s report. It might be shown that the property claimed and reported as the insolvent’s, was not in fact his: while on the other hand, creditors might show that more was really due the estate, than had been reported by the trustee. In either event it would be impossible to fix, *374 with certainty, the tax due the clerk, previous to the final ratification of the auditor’s report. Not till then could the clerk demand, nor would the trustee be warranted, in paying over the fund. Previous to the final ratification of the auditor’s account, if the trustee pays out money in his hands, he would do so at his own risk; after the ratification, he would be protected in doing so. Before the final ratification in the present case, the official existence of the appellant had expired.

The principles established in Jones vs. Shore, 1 Wheat., 462 , do not apply to the claim of the clerk in this case. While it is true, that as soon as the tax accrued by analogy to a case of forfeiture, the right of the judges to the same, became fixed by the final ratification of the auditor’s report, and related back to the time of the accruing of the tax, it nevertheless does not follow, that the right of the clerk to collect, it, was also established at that time. In Jones vs. Shore, the court base the right of the collector and surveyor to the forfeiture, upon the ground that the seizure had been made, and the risks and responsibilities incurred by those officers, although the penalty may not have been determined, but was uncertain and contingent. It was notwithstanding, the court say, an inchoate right acquired by the seizure, which is consummated by the decree of condemnation, and when so consummated relates back to the time of the seizure. Now what has the clerk done, to give him an inchoate right to commissions for collecting this tax ? Nothing, that we can see or imagine.

We are strengthened in the views we have expressed, by the provisions of the new constitution, which we think clearly points out the officer upon whom this duty devolves. By the sixteenth section of the fourth article of the constitution it is provided, that “the clerks of the court of common pleas, the superior court and the criminal court of Baltimore city, shall perform all the duties heretofore vested in the clerks of Baltimore county court, and Baltimore city court respectively, and be entitled to all the fees now allowed by law; and all laws' relating to the clerks of Baltimore county and city courts, shall *375 be applicable to the clerks, respectively, of the court of common pleas, the superior court, and the criminal court of Baltimore city.” Under the new constitution, the cases formerly in Baltimore county court, out of which this tax and others of like kind accrued, are distributed between, and have passed to, the circuit court of the county, the superior court and the court of common pleas of Baltimore city; and by the section of the constitution just cited, the clerks of the new courts are bound to perform the duties of the late clerk of Baltimore county court, in regard to the collection and disbursement of such taxes. In the case before us, the clerk of the court of common pleas is the appropriate officer for that purpose.

The official character of the clerk oí Baltimore county court having ceased at the time the audit was made in this case, we think the court below were right in rejecting the allowance made to him by the auditor. With the view, however, of enabling the auditor to restate the account, and to charge this tax in favor of the clerk of the court of common pleas, we will remand ihe cause, but without affirming or reversing the order, or judgment of the court below, and we will pass an order according!).

Cause remanded under the act of 1849, ch. 88, with costs in this court to be paid by the appellant.

Cause remanded.

Some days after the decision of ihe case, the appellee made an application for a rehearing.

The appellees in this case, pray the court to open the judgment pronounced at the present term, and re-hear the case:

1st. Because the views of the appellees were not fully presented to this court, or understood by their honors, the judges, at the former trial.

2nd. Because this court has not in its opinion filed, ruled and determined the wdiole case and matter in controversy, as shown by the whole record.

3rd. And because particularly this court has not determined, when the right to the tax referred to, did vest in the judges.

*376 Mr. Scott, in behalf of the applicants.

The court does not say when the right vested’. Proceedings commenced in 1836, when judges Archer and Magruder were on the bench. Both of them are since dead, and'others supply their places. It is important to have this settled.

Thereupon the court, by Mason J., expressed the following opinion, overruling the motion.

The only matter presented to the court for adjudication in this cause, was, whether the estate of Jones, the insolvent,, was to be reduced, by the imposition of the tax, provided for under the act of 1841, chap. 271?

We expressly decided that question, and have directed that the auditor, under the control of the court, shall allow the tax, in the name of the clerk of the court of common pleas. This done, the present controversy is ended, and all control of the court over the subject matter ceases.

The points, involved in the present controversy, as presented by the record, have been fully argued, considered and decided, and need not be again opened for the purpose of letting in new matters of dispute, not raised by the present record.

As a reason, why this- ease should be re-opened and argued anew, it has been alleged, that in order to determine who were entitled to. the-fund,. as between the judges, who were in office, at the- time the new constitution went into operation, and the representatives of those who preceded them, it was necessary, that the court should have fixed the time when the tax in question vested. The reasons thus assigned, why we should fix the time, constitutes the best ground, in our judgment, why we should not do so. If we were to settle this question, we would be virtually deciding upon the rights and interests of parties not before the court. The late judges of Baltimore county court, are in no way parties to this proceeding. If there should be any conflict between them, as to their right to this fund, they ought to be before the court, and heard, before any action upon their interests could be taken.

Motion overruled.