Maryland Attorney General Opinion 98 OAG 098

98] [98 Op. Att’y

CODE REVISION

REPEAL OF STATUTORY PROVISIONS ALLOWING A CLERK OF
COURT AND REGISTER OF WILLS TO COMPLETE
UNFINISHED BUSINESS AFTER LEAVING OFFICE WOULD
NOT EFFECT A SUBSTANTIVE CHANGE IN THE LAw

October 31, 2013

Susan H. Russell
Manager, Code Revision Projects
Department of Legislative Services

In connection with the ongoing code revision process, you
have requested our opinion on whether subsequent legislative
enactments have rendered obsolete two statutory provisions—
Article 36, §§ 8 and 9 of the Annotated Code of Maryland—that
allow a clerk of court or register of wills who has left office six
months in which to complete any unfinished business. You ask
whether the two provisions may be repealed without effecting a
substantive change in the law.
In our opinion, these provisions have been rendered obsolete
by the subsequent enactment of § 2-103 of the Courts Article,
which allocates responsibility for the completion of unfinished
business to the incoming clerk or register, and by other
enactments that alter the manner in which clerks and registers are
compensated. Accordingly, we conclude that Article 36, §§ 8 and
9 may be repealed without effecting a substantive change in the
law.
I
Background
A. Article 36, Sections 8 and 9
Sections 8 and 9 of Article 361 address the responsibility for
the completion of official matters left unfinished when a clerk or
register leaves office. The two provisions were enacted in 1844
in response to reports that “many of the clerks of county courts

1
Unless noted otherwise, all references to Article 36 are to the
2010 Replacement Volume and all references to the Courts Article are
to the 2013 Replacement Volume.
Gen. 98] 99

and registers of wills lately appointed,2 upon taking possession of
their officers [sic], have found much of the business of their
offices in an unfinished state, which it was the duty of their
predecessors to have completed.” See 1844 Md. Laws, ch. 311.
The legislation was enacted to resolve “doubt[s]” about “whether
said newly appointed officers are legally authorized to complete
such unfinished business, or whether the retiring officers have
authority to complete the same.” Id.
As originally enacted, the statute required the newly
appointed officer to “complete the business of his office of every
description left unfinished by his predecessors” and authorized
him to “recover for completing the same, the fees allowed by law
for such business at the time of such neglect by the old officers.”
Id., §§ 1, 2. The law delayed the operation of its provisions for
six months after the departing officers had “vacated their
respective offices” and, during that time, gave them “a right to all
needful papers in order to enable them to complete and finish
their business . . . .” Id., § 3. As currently codified,3 Article 36,
§ 8 provides:
Each clerk and register of wills shall have six
months from the time he retires from office
to complete the unfinished business of his
office and shall have, during that period, a
right, on receipting therefor to his successor,
to all needful papers, in order to enable him
to complete and finish his business.
Article 36, § 9, also in its current form, allows the incoming
official to complete any work of his predecessor left unfinished

2
At the time Article 36, §§ 8 and 9 were enacted, clerks and
registers were appointed. Both offices became elective under the 1851
Constitution. See Md. Const., Art. IV, §§ 14, 18 (1851); see generally
Baltimore v. State, 15 Md. 376, 456-57 (1860).
3
The provisions were initially codified at Article 38, §§ 7 and 8,
but were moved to their current location within Article 36 during the
1888 re-codification. Other than changes in capitalization and
punctuation, the only amendment of the provision occurred in 1878.
That amendment deleted language referring to the predecessor’s “legal
representative” and made clarifying changes not relevant here.
Compare 1878 Md. Laws, ch. 229 with 1844 Md. Laws, ch. 311.
100] [98 Op. Att’y

after the six-month hold-over period described in § 8 and to be
paid by his predecessor for doing so:
Each clerk and register of wills on coming
into office shall complete all the unfinished
business which shall be in his office
unfinished by his predecessor within the six
months given in § 8, and such clerk or
register shall be allowed the usual fees for so
doing, the same to be paid by said
predecessor; and the last official bond of said
predecessor shall be responsible for the same
in cases where said predecessor has received
the fees therefor; and in cases where the fees
have not been received by his said
predecessor, such clerk or register
completing said business shall be entitled to
said fees therefor and shall collect the same
from the parties owing the same in the like
manner that he collects other fees for similar
services.
At the time the two provisions were enacted, the clerks of
the circuit courts and the registers of wills were “feed officers,”
meaning that they drew their compensation from the fees they
collected in the course of their official duties. See, e.g., 1826 Md.
Laws, ch. 247, §§ 4, 6 (setting the fees that the clerks and
registers could collect for services rendered “in virtue of their
respective offices”); 1844 Md. Laws, ch. 312 (authorizing the
continued collection of fees by clerks and registers). The fees that
the clerks were authorized to collect ranged from filing fees, fees
for issuing writs, and fees for other services relating to the
administration of the judicial process, to fees for performing
other, essentially non-judicial duties, including the issuance of
business licenses. See 1826 Md. Laws, ch. 247, § 4. The
registers were authorized to collect fees for a variety of tasks
associated with the probate of wills and the administration of the
orphans’ courts. Id., § 6.
The clerks and registers were not the only feed officers at the
time; as of 1851, all State officers other than the Governor were
paid from the fees of their office. Dan Friedman, The Maryland
State Constitution: A Reference Guide 265 (2006) (“Friedman”).
The fees that the clerks and registers charged, however, appear to
have caused “great complaint among the people of the counties”
as of 1851 and had generated more animosity to the existing
Constitution “than almost any other abuse.” 2 Debates and
Gen. 98] 101

Proceedings of the Maryland Reform Convention to Revise the
State Constitution 357 (1851) (“1850 Debates”).
Although the Legislature had attempted to regularize the
“vague and indefinite” fees that the clerks and registers were
allowed to charge for each service, 1826 Md. Laws, ch. 247, there
remained room for differences in how the fees were applied, and
considerable difference across jurisdictions in the amount of fees
generated. For example, one delegate to the 1850 Constitutional
Convention noted that the register of wills in Somerset County
earned $1,500 in fees, while the same position in Baltimore City
“receive[d] five times the compensation.” 2 1850 Debates 357.
The office of clerk in Baltimore County, for its part, was believed
to be “worth about six thousand a year.” Id. By comparison, the
“Chief Justice of the State” and “the Judges of the State” earned
$2,500. Id. at 729. At the time, then, the offices of clerk and
register in some jurisdictions had become sinecures and valuable
ones at that.
Giving public officials a vested interest in the fees they
collected may have encouraged efficiency in their work—as some
delegates to the 1850 Constitutional Convention appear to have
believed, 2 1850 Debates 358 (remarks of Mr. Morgan)—but it
also encouraged disputes over the collection of, and entitlement
to, those fees. See, e.g., Beall v. Harrison, 9 G & J 15 (1837)
(action by clerk of court to obtain fees collected by sheriff).
Article 36, §§ 8 and 9 were enacted to resolve “doubt[s]” about
how the transition between the two officers would unfold and to
ensure that it unfolded without litigation, a lapse in service, or an
inequitable allocation of fees.4 The provisions thus address two
4
The enactment of the 1844 provisions did not resolve all
uncertainty about the entitlement to fees and disputes continued to
arise. See State ex rel. Longnecker v. Carman, 27 Md. 706 (1867)
(rejecting successor clerk’s suit for pro rata payment of fees for
completing work left unfinished by predecessor because successor had
not completed all such work before filing suit); see also 5 Opinions of
the Attorney General 232 (1920) (departing register may, during the
six-month period following his departure, collect fees that had accrued
during his term of office); 12 Opinions of the Attorney General 45
(1927) (departing clerk may collect only the actual expenses of
completing unfinished work, not his constitutional salary); 16 Opinions
of the Attorney General 93 (1931) (fees collected by departing register
during six-month period may be counted toward making up deficit in
previous year’s salary).
102] [98 Op. Att’y

separate, but closely related, topics: (1) the responsibility for the
completion of any unfinished business when a clerk or register
leaves office; and (2) the compensation of the official who
performs that work.
B. Subsequent Legislative Enactments Governing the
Responsibilities and Compensation of Clerks and Registers
Subsequent legislative enactments have altered the manner
in which clerks and registers are compensated and have
reallocated responsibility for the completion of business left
unfinished at the end of the officer’s term.
1. Changes in How Clerks and Registers Are
Compensated
Just seven years after the law that is now Article 36, §§ 8
and 9 took effect came the first in a series of constitutional and
statutory enactments that changed the way in which the registers
of wills, and particularly the clerks of the circuit courts, are
compensated. The Constitution of 1851 contained two new
provisions relating to the salaries of public officers, one specific
to clerks and registers and the other more generally applicable to
officers who received compensation in excess of $3,000. Article
III, § 40 retained the clerks’ and registers’ status as feed officers,
but capped their salaries at $2,500 over and above expenses and
directed the Legislature to “adopt some simple and uniform
system of charges” for the two offices.5 Article X, § 1 applied to
all officers, “the Governor excepted,” whose “pay or
compensation received” exceeded $3,000 per year. That new
provision required any such officer to account annually for the
“sums of money received by him or on his account as a payment
of compensation for his performance of official duties” and to
“pay over to the treasurer” the amount by which receipts
exceeded $3,000—effectively capping the compensation of any
such officer at $3,000. See Picking v. State, 26 Md. 499, 502-03
(1867) (noting that Art. X, § 1 of the 1851 Constitution was
designed to ensure that the fees an officer collected did not
“exceed what would be a fair and reasonable compensation,” and
instead would be used to “increase the public revenue”).

5
The General Assembly fulfilled its constitutional charge and the
next year enacted legislation setting the fees the clerks and registers
could charge. 1852 Md. Laws, ch. 308.
Gen. 98] 103

Because the 1851 Constitution had capped the clerks’ and
registers’ salaries at $2,500, it did not subject them to the same
accounting provisions that Article X of that Constitution required
for officers that earned $3,000. That form of fiscal oversight was
added by statute in 1853 and required the clerks and registers to
account to the treasury for the “emoluments” and “expenses” of
the office “at least twice in every year,” 1853 Md. Laws, ch. 444,
§ 2, and to “pay into the treasury” the amount by which their net
receipts exceeded $2,500. Id. § 1; see also Carman, 27 Md. at
711 (argument of appellee, describing operation of cap on clerk’s
compensation). The adoption of the 1867 Constitution made
these same accounting and treasury oversight provisions
constitutionally applicable to clerks and registers by raising the
cap on their salaries to $3,000 ($3,500 in Baltimore City).6 See
Md. Const., Art. III, § 45 (1867); see also id., Art. XV, § 1 (1867)
(requiring the same accounting and fiscal oversight that Article X
of the 1851 Constitution had required). The new Constitution
reaffirmed, though, that the “compensation of Clerks, Registers,
assistants and office expenses shall always be paid out of the fees,
or receipts of the offices, respectively.” Id., Art. III, § 45.
The next notable change to the clerks’ and registers’
compensation came in 1942, when Article III, § 45 was amended
to eliminate the $3,000 cap on the salaries of the clerks and
registers and give the General Assembly the power to set those
salaries. See 1941 Md. Laws, ch. 509 (ratified Nov. 3, 1942).
Then, in 1956, Article XV, § 1 was amended to remove the
generally applicable $3,000 limit on the amount that feed officers
could retain as compensation for their duties, leaving it to the
Legislature to set such compensation by statute as well. 1956 Md.
Laws, ch. 99 (ratified Nov. 6, 1956).
The changes wrought by these various constitutional
provisions eliminated the pecuniary incentive for the clerks and
registers to maximize the profits of their offices and instead made
both offices subject to substantial legislative and fiscal oversight.
Both offices nevertheless remained “feed” offices in that their
fixed salaries were paid using the fees collected by their offices.

6
The more generous $3,500 salary available to the clerk and
register in Baltimore City was an example of the exception to the
$3,000 cap in Article XV, § 1, applicable to “cases specially provided
in this Constitution.” Md. Const., Art. XV, §1 (1867); see Thrift v.
Laird, 125 Md. 55, 66 (1915).
104] [98 Op. Att’y

For the registers, this change was reflected in statute and, for the
clerks, in the Constitution. See 68 Opinions of the Attorney
General 96, 104 (1983). As of 1957, § 302 of Article 93 provided
that the legislatively-fixed salaries of the registers “shall be
payable semimonthly from the fees, receipts and emoluments of
the office, after first deducting therefrom the necessary expenses
of the office . . . .” From these receipts the registers paid the
expenses of doing business, including their own salaries and those
of their employees. In the event of a shortfall, the deficiency
would be paid “by the Comptroller from funds provided for that
purpose in the State budget.” Md. Ann. Code art. 93, § 302(b)
(1957).7 Therefore, registers, although paid using money earned
from fees, earned a fixed salary no matter how much money their
offices collected.
The clerks remained feed officers until 1986, when changes
to Article IV, § 10 freed them from fee dependency and provided
for the funding of their offices through the State budget, rather
than by means of their revenues. See 1986 Md. Laws, ch. 722
(ratified Nov. 4, 1986). Specifically, the amendment deleted the
provision that the clerks would be “allowed the fees” they
collected. Instead, Article IV, § 10 provided, as it does today, that
“[t]he offices of the Clerks shall be funded through the State
budget.” Under current law, “[a]ll fees, commissions, or other
revenues established by Law for [the clerks’] offices shall be
State revenues, unless provided otherwise by the General
Assembly.” Md. Const., Art. IV, § 10 (2003 Repl. Vol.); see also
generally 72 Opinions of the Attorney General 21 (1987)
(describing 1986 amendments). Each clerk must now submit an
annual budget to the Chief Judge of the Court of Appeals for the
Chief Judge’s approval and submission to the Department of
Budget and Management as part of the overall budget for the
Judiciary. Md. Code Ann., Cts. & Jud. Proc. (“CJP”) § 2-504.1.
7
More recent legislation has altered the manner in which the
register’s salary is covered when the fees collected are insufficient to
do so. See, e.g., 1969 Md. Laws, ch. 3 (providing that any shortfall in
the register’s fees was to be covered by the “taxes due the State
Comptroller from said office for that month,” and if that amount were
insufficient, “from funds provided in the State Budget for this
purpose”). The statute took its current form in 1999 and now provides
that, if the “taxes due the State Comptroller” are not enough to cover
the register’s salary and expenses, the shortfall is covered “from excess
fees remitted from all other registers.” 1999 Md. Laws, ch. 635 (now
codified at Md. Code Ann., Estates & Trusts (“ET”) § 2-205(e)(2)
(2011 Repl. Vol.).
Gen. 98] 105

The Registers, by contrast, technically remain “feed” officers—
the only ones, in fact. See Friedman at 265.
2. Changes in the Responsibility for the Completion
of Unfinished Business
Legislation subsequent to the enactment of Article 36, §§ 8
and 9 in 1844 has also altered the allocation of official duties
during times of transition within the offices of the clerk and the
register. Most notably, § 2-103 of the Courts Article, added in
1973 when the Article was codified, provides that, “[w]hen an
officer leaves office for any reason, any duty not fully performed,
including the collection of fees, becomes the responsibility of his
successor in office.” See 1973 Md. Laws, ch. 2 (1st sp. sess.).
The revisor’s note that accompanied § 2-103 explained that
the provision was “new language designed to replace the
provisions . . . which provide that when an officer leaves office
for any reason except death, his successor shall finish any work in
progress.”8 The provisions that the revisor’s note stated should be
8
The full text of the revisor’s note is as follows:
This section is new language designed to replace
the provisions (such as Art. 87, §§ 21-25, 33-34,
and 36) which provide that when an officer
leaves office for any reason except death, his
successor shall finish any work in progress.
Sections 21-25, 33-34, and 36 of Art. 87 are
proposed for repeal. When an officer dies
however, his duties devolve on his personal
representative. There is no reason to involve a
personal representative in what are, in reality,
public duties.
An officer, while he is in office, is personally
responsible for carrying out the duties of his
office, whether or not the duties accrued during
his term or the term of his predecessor. An
officer who fails to carry out his duties may be
proceeded against on his bond.
Although the provisions on which this section is
based originally applied only in the case of
sheriffs, the section is expanded to negate any
implication that the personal representative of
any other officer may be responsible for
completing unperformed duties.
1973 Laws, ch. 2 (1st sp. session).
106] [98 Op. Att’y

replaced included §§ 33 and 36 of Article 87, which, much as
Article 36, §§ 8 and 9 do for clerks and registers, gave retiring
sheriffs a period of time after their terms expired in which to
collect any outstanding fees, Art. 87, § 33, and gave them a “right,
on receipting therefor, to the temporary possession of all needful
papers in order to enable him to complete the collections . . . .”9
Art. 87, § 36 (1969 Repl. Vol.). The code revision committee
noted that, although the provisions on which the newly enacted
§ 2-103 is based “originally applied only in the case of sheriffs,
the section is expanded to negate any implication that the personal
representative of any other officer may be responsible for
completing unperformed duties.” 1973 Laws, ch. 2 (1st sp. sess.).
The implication arose from a third provision, Art. 87, § 34, which
had provided that, if the sheriff should die in office, “his
administrator may collect all fees placed in the hands of such
sheriff for collection, in the same manner and by the same means
as said sheriff might have done in his lifetime” for a period of two
years. Believing that “[t]here is no reason to involve a personal
representative in what are, in reality, public duties,” the code
revision committee recommended replacing the three provisions
with a single provision, applicable to all offices, that would assign
the unfinished business of the departing officer to his or her
successor.
II
Analysis
As a general rule, code revision is presumed to be for the
purpose of clarity rather than for the purpose of changing the
substance of statutory law. Addison v. Lochearn Nursing Home,
411 Md. 251, 282 (2009). You have therefore asked whether
Article 36, §§ 8 and 9 may be repealed without effecting a
substantive change in the law, in light of subsequent enactments
governing the responsibilities and compensation of the clerks and
registers.

9
The committee noted that § 2-103 was also intended to supersede
§§ 21-25 of Article 87, which addressed the disposition of any writs,
process, or property sales left incomplete upon a sheriff’s death or
departure from the jurisdiction. Although § 25 provided a role for the
“sheriff for the time being,” none of the provisions addressed the
authority of a succeeding sheriff to complete work left unfinished by
his predecessor or collect fees therefor.
Gen. 98] 107

As we see it, the determination of whether a statute may be
repealed through the code revision process involves two
concepts—obsolescence and substantive change—that are closely
related, but not identical. An earlier statute may be rendered
obsolete by a later, more comprehensive legislative approach to a
topic, and yet specific aspects of the earlier statute may fall
outside the later enactment’s legislative footprint such that the
repeal of those aspects would constitute a substantive change in
the law. For example, we previously concluded that certain
provisions regarding the holding of open meetings, enacted in
1954, had been rendered largely obsolete by the enactment of the
Open Meetings Act in 1977, but that the provision of the older
law requiring that “no ordinance, resolution, rule or regulation
shall be finally adopted at [a meeting not open to the public]” had
no analog in the new Act and therefore could not be repealed
without effecting a substantive change in the law. See 94
Opinions of the Attorney General 161, 175-76 (2009). As we did
then, we begin our analysis by identifying the each aspect of the
earlier enactment and ascertaining whether those aspects have
been squarely superseded by subsequent enactments.
Article 36, §§ 8 and 9 address two closely related topics: (1)
the allocation of responsibility for the work of the clerks and
registers during the transition between office-holders; and (2) the
allocation of fees between the preceding or succeeding
officeholder. In our view, both topics have been addressed by
subsequent enactments that have rendered Article 36, §§ 8 and 9
obsolete.
A. The Provisions of Article 36, §§ 8 and 9 Relating to the
Completion of Unfinished Business Have Been Rendered
Obsolete by § 2-103 of the Courts Article.
Where the 1844 provisions allowed clerks and registers six
months from the date of their departure in which to complete any
unfinished business, § 2-103 of the Courts Article now makes
clear that the responsibility for any such business lies with the
successor: “When an officer leaves office for any reason, any
duty not fully performed, including the collection of fees,
becomes the responsibility of his successor in office.” Id. The
term “officer,” although not defined in the Courts Article,
encompasses the clerks and registers, both of whom hold offices
within the Judicial Branch created by Article IV of the
Constitution. See Md. Const., Art. IV, §§ 11 (referring to
“Clerks, Registers of Wills, and other officers”), see also id.,
108] [98 Op. Att’y

§§ 10, 41 (providing for clerks and registers, respectively); 98
Opinions of the Attorney General 23 (2013) (describing the
relationship between clerks and registers within the Judicial
Branch).10
The revisor’s note accompanying § 2-103 does not mention
the clerks or registers but nonetheless supports the conclusion that
§ 2-103 was intended to supersede the provisions of Article 36,
§§ 8 and 9. Although, as discussed above, the change effected by
§ 2-103 was prompted by earlier provisions relating to the
collection of fees by the personal representatives of sheriffs, the
revisor’s note expressly states that the committee had “expanded”
the provision to be applicable to “any other officer . . . .” CJP
§ 2-103 (1974 Vol.).
The report that accompanied the code revision committee’s
recommendations confirms that the “new language” it
recommended would apply to the clerks and, we believe, to the
registers as well. As to the clerks, the committee’s reasoning was
explicit:
The rationale for the present statutory
provisions is that in former times the fees of
a clerk or sheriff were his compensation, and
when he died, uncollected fees became a part
of his estate. These officers are now salaried
and derive no personal benefit from the fees
they collect.

10
No provision within Title 2 of the Courts Article (entitled “Court
Personnel”) mentions the registers, but other provisions of the Courts
Article do. See CJP §§ 11-203 (providing for bonds for clerks and
registers), 12-502(b)(1) (appeals from orphans’ court filed with
register). That more attention is not paid to the registers in the Courts
Article appears to be due to the fact that the code revision committee
elected to place some judicial officers—including the orphans’ court
judges, whom the registers support—in other articles “[b]ecause of
their very limited jurisdiction.” Governor’s Commission to Revise the
Annotated Code, Commission Report No. 3F to the General Assembly
of Maryland at 6 (July 16, 1973) (“1973 Code Revision Committee
Report”); see also 98 Opinions of the Attorney General 23 (discussing
the Estates and Trusts Article provisions on registers and orphans’
court judges).
Gen. 98] 109

1973 Code Revision Committee Report at 18.11 Although the
report does not mention the registers, they were, and remain,
compensated in the same way that clerks were compensated in
1973: They derive their compensation from fees, but that
compensation takes the form of a legislatively established salary.
The two officers also play similar roles with respect to the courts
they support. See ET § 2-208(e)12 (stating that the register “in
every respect, [shall] act under the control and direction of the
[orphans’] court as the clerk of a court of law acts under the
direction of the court of law”). The Legislature treats clerks and
registers together in other ways as well—the enactment of Article
36, §§ 8 and 9 is a case in point—as does the Constitution. See
Md. Const., Art. III, § 45 (requiring the General Assembly to
“provide a simple and uniform system of charges in the offices of
Clerks of Courts and Registers of Wills”). In sum, the language
and logic of the code revision lead us to conclude that § 2-103
applies to all judicial officers, including clerks and registers.13

11
One of the members of the code revision committee echoed the
committee’s remarks in a contemporaneous law review article:
“Heretofore, when a sheriff died or otherwise left his office, statutes of
ancient origin required cumbersome procedures to be followed. Some
of these provisions authorized the former sheriff or his person
representative to collect fees after the sheriff left office or died; this
arrangement was quite appropriate when the sheriff was compensated
by his fees, but it is totally inappropriate today, when all sheriffs are
salaried.” William H. Adkins, II, Code Revision in Maryland: The
Courts and Judicial Proceedings Article, 34 Md. L. Rev. 1, 19 (1974)
(footnotes omitted).
12
All references to the Estates and Trusts Article are to the 2011
Replacement Volume.
13
See also 1973 Code Revisions Committee Report at 17 (stating
that § 2-103 “has been expanded to apply to all officers” and “makes
clear that although an officer is personally responsible for his official
duties while he holds office, this responsibility ceases when he leaves
office, and it becomes the responsibility of his successor to complete
any carry over work”); Adkins, 34 Md. L. Rev. at 18-19 (stating that
the “focus” of the newly enacted § 2-103 was “[r]eplacement of
obsolete provisions in the Code,” and that “Section 2-103 makes it
clear that when any officer covered by title 2 leaves office for any
reason, all duties then unperformed, including collection of fees,
devolve upon his successor”).
110] [98 Op. Att’y

Typically we will not assume that a code revision committee
intended to make what might be considered a substantive change
in the law when re-codifying an existing statute. However, we
think the committee report describing the 1973 code revision
process makes clear that the committee intended to recommend
this potentially substantive change:
The basic thrust of the Commission’s work
has to do with formal and not substantive
changes. Nevertheless, at some points in its
work, the Commission has found it necessary
to make recommendations which do involve
the substance of the laws. In a sense, the
elimination of an obsolete provision is a
substantive change. Also, where the
Commission has discovered inconsistencies
or gaps in the laws, it has sometimes made
substantive recommendations in an effort to
rectify the situation . . . .
In every such case, the revisor’s notes
following the particular section explain the
change and the reason for it.
1973 Code Revision Committee Report at 3. The revisor’s note
suggests that § 2-103 is one such section; it describes the
provision as “new language” that is being “expanded” beyond
existing law. Thus, we believe that the code revision committee
intended to recommend a new statutory principle.
In our view, then, the 1973 codification of the Courts and Judicial
Proceedings Article effected a substantive change that brought up
to date, and made uniform, the law governing the allocation of
responsibility for the unfinished work of the sheriffs and any
other judicial officer, including clerks and registers. The
declaration that, “[w]hen an officer leaves office for any reason,
any duty not fully performed, including the collection of fees,
becomes the responsibility of his successor in office,” CJP
§ 2-103, leaves no room for the contrary provisions of Article 36,
§§ 8 and 9 relating to the completion of “unfinished business.”14

14
We recognize that Article 36, §§ 8 and 9 relate specifically to
clerks and registers, not officers generally, and that canons of statutory
interpretation favor the specific statutory provision over the general.
Maryland Econ. Dev. Corp. v. Montgomery County, 431 Md. 189, 212
Gen. 98] 111

B. The Provisions of Article 36, §§ 8 and 9 Relating to the
Compensation of Clerks and Registers for the Completion
of Unfinished Business Have Been Rendered Obsolete By
§ 2-103 of the Courts Article and Other Changes in How
the Two Officers Are Compensated
We next evaluate whether subsequent legislative enactments
have rendered obsolete the provisions of Article 36, §§ 8 and 9
relating to compensation for the completion of any business left
unfinished at the end of the clerk or register’s term. As discussed
above, those earlier provisions allowed a departing clerk or
register to continue to collect fees that accrued during a six-
month, post-departure, winding-up period, and entitled the
succeeding clerk or register to demand from his or her
predecessor fees collected for work that, at the end of the six-
month period, was left undone. See supra at Section IA.
In our view, the enactment of § 2-103 of the Courts Article
superseded the compensation provisions of Article 36, §§ 8 and 9
in the same way that it rendered obsolete the winding-up
provisions of the earlier law. The right to compensation granted
by §§ 8 and 9 is limited to, and bound up with, the opportunity for
the departing clerk to complete any unfinished business. Because
that opportunity has now been foreclosed by the enactment of § 2-
103, the accompanying right to compensation is extinguished as
well.
Subsequent changes in how the clerks and registers are
compensated reinforce our conclusion that the earlier
compensation provisions have been rendered obsolete. With
respect to the clerks, the 1986 amendments to Article IV, § 10
deleted the language providing that the clerks would be “allowed
the fees” and specified instead that “[a]ll fees, commissions, or
other revenues” collected by the clerks are considered “State

(2013). Of course, a competing canon provides that irreconcilable
statutes “are to be made to operate together as far as possible,
consistent with the evident intent of the latest enactment.” May v.
Warnick, 227 Md. 77, 83 (1962) (emphasis added); see Unnamed
Physician v. Commission on Medical Discipline, 285 Md. 1, 10 (1979)
(quoting May). In any event, interpretive canons must yield to a
contrary legislative intent, see NCR Corp. v. Comptroller of Treasury,
Income Tax Div., 313 Md. 118, 145-46 (1988), which intent we believe
the revisor’s note to § 2-103 reflects.
112] [98 Op. Att’y

revenues, unless provided otherwise by the General Assembly.”15
Md. Const., Art. IV, § 10(b); see also generally 72 Opinions of
the Attorney General 21 (1987) (describing 1986 amendments).
Because those amendments extinguished the clerk’s right to
compensation from the fees of the office, the repeal of the
provisions of Article 36, §§ 8 and 9 relating to the clerk’s
compensation would not effect a substantive change in the law for
this reason as well.
The office of the register of wills, though it remains a “feed”
office, is not the sinecure that it was when Article 36, §§ 8 and 9
were enacted. Subsequent legislative enactments set the register’s
salary, required periodic accountings, and provided for any fees
collected in excess of the register’s salary to be turned over to the
treasury, ultimately for disposition within the State budget. Under
current law, it does not matter whether the fees are collected by
the departing register or the new one; the fees go to the same
place and the registers draw the same salary. Although these
enactments do not change the fact that the register is paid from
the fees collected, they are consistent with our conclusion that
repealing Article 36, §§ 8 and 9 would not effect a substantive
change in the law.16

15
We have found no subsequent legislative enactment providing
that the “fees, commissions, or other revenues” collected by the clerks
are not considered “State revenues.” Section 2-213 of the Courts
Article, though it provides that “the clerk of a circuit court is entitled to
5% of all public money that the clerk receives, collects, and pays over,”
is not to the contrary. Although the commissions allowed by the
provision were originally intended to help fund the clerk’s salary and
the expenses of running the office, those commissions are now remitted
to the Treasurer and “serve to compensate the State for the services
performed by these State officials in collecting public moneys that are
distributed to governmental entities other than the State.” Letter of
Assistant Attorney General Julia M. Freit to Stephen M. Ports, Dep’t of
Fiscal Services (July 5, 1996).
16
In addition to unfinished work and compensation, Article 36, § 8
arguably addresses a third topic as well—the departing official’s “right,
on receipting therefor to his successor, to all needful papers, in order to
enable him to complete and finish his business.” We believe the “right”
to access conferred by § 8 serves only the purpose of enabling the
departing officer to comply with the § 8 duty to complete any
unfinished business within six months. See Carman, 27 Md. at 714
(noting that what is now § 8 gives the departing clerk “the right of
possession (on receipting for the same) to all needful papers to enable
him to finish his business”). As we have concluded that the provisions
Gen. 98] 113

III
Conclusion
Article 36, §§ 8 and 9 have been rendered obsolete by
subsequent enactments that allocate responsibility for the
completion of unfinished business to the incoming clerks and
registers and that alter the manner in which clerks and registers
are compensated for their service. Accordingly, we conclude that
Article 36, §§ 8 and 9 may be repealed without effecting a
substantive change in the law.
Douglas F. Gansler
Attorney General
H. Scott Curtis
Assistant Attorney General

Adam D. Snyder
Chief Counsel, Opinions & Advice

of Article 36, §§ 8 and 9 relating to that duty have been and may be
repealed without effecting a substantive change in the law, any “right”
to gain custody of “needful papers” in order to carry out that
responsibility falls by the same standard. At the very least, such a
“right” would seem inconsistent with the current clerk’s obligation to
“[h]ave custody of the books, records, and papers of his office,” CJP
§ 2-201(a)(1), and the register’s obligation, not only to “store safely
every original paper and record left in his custody,” ET § 2-208(c), but
to ensure that “[a]ny will, probated, or any paper filed in the office of
the register [is] not . . . delivered out of the office to any person.” ET
§ 2-209.