I agree that the judgment must be reversed for the reasons clearly and forcefully stated in the court's opinion. But I think there is a more fundamental reason. In my opinion, the statute, codified as section 58 of article 11, under which the indictment was found, was not intended to apply to an officer who did not participate in, or have knowledge of, the acceptance of the deposit. The court has found that the statute does not include directors, and with that I entirely agree. In such of the cases cited in the opinion as hold non-participating executive officers and directors responsible, the reason given is that they are responsible for the management of the bank and for keeping it open. The reasoning is logical, because in all of them the statutes construed either expressly or by fair implication include directors. It is to me inconceivable that the Legislature meant to punish officers by reason of their managerial positions when it entirely omitted directors who are the managers. If it had meant to make keeping the bank open an offense it could easily have accomplished that by making criminally responsible any executive officer or director who, knowing a bank to be insolvent, should assent to its remaining open for business.
I cannot concur in the conclusion of the court that the Legislature must have meant to punish officers for participating in keeping banks open, knowing them to be insolvent, on the ground that "this is the only participation of which they would ordinarily be guilty." Of course the statute means to hold some officers liable for some act; but the act specified is the accepting of deposits in the conditions named, and the officer liable is the one who accepts them. The statement that "this (that is, keeping the bank open) is the only participation of which they (officers) would ordinarily be guilty" is based on the assumption that "the great majority of bank officers in the state have no connection with receipts of deposits except in keeping banks open for it." Clearly the court must be thinking only of executive officers. But it cannot, I think, properly be assumed that the Legislature *Page 578 had such officers in mind. The statute does not in terms include all officers. In common parlance, and in the language understood by legislators, tellers and bookkeepers are "officers." "Teller" is so defined in Webster's dictionary, and in the Century he is described as a "functionary in a banking establishment," etc. Of course it is the business of tellers to receive deposits; and bookkeepers often perform that duty in the absence of the regular tellers. It seems to me an unwarranted assumption that the Legislature meant to include officers who do not receive deposits. Why should that be assumed when directors are excluded?
If it be urged that the construction of the statute worked out by the court is necessary for the protection of depositors, my answer is it is not the business of courts to legislate. As was said in State v. Page, 163 Md. 505, 513, 163 A. 493, 495, in an opinion by Judge Offutt: "While the courts may not by strained or narrow construction thwart the legislative will, neither will they, in the construction of a criminal statute, extend its scope to cases not plainly within the language used. Healy v. State,115 Md. 377, 80 A. 1074."
In Healy v. State, supra, it was said: "Penal statutes shall be strictly construed, by which is meant that courts will not extend the punishment to cases not plainly within the language used." See, also, Sea Gull Specialty Co. v. Snyder, 151 Md. 78, 83, 134 A. 133, 134, where we said, through Judge Digges: "In determining the question before us, we should be confined to determining the true meaning of the language employed by the Legislature, and not allow the construction to be influenced by what, in our opinion, the Legislature should have said." And the court then was not construing a criminal statute, where greater strictness is required. *Page 579