The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1860-03-14
OPINION OF JUDGE MARTIN
Constitutionality of the Act creating Per-
manent Police Force for the City of Balti-
more.

| -o- ~ @>N>-'-
more.
Yesterday morning, long before the hour of II
o'clock, the Superior Court was denseIy crowded
inside and outside the bar, by auditory brought
together by the announcement that Judge Martin
would proceed to deliver his opinion upon the Con
sttutionaty of the new Police Bill.
OF the counsel engaged in this important case
there were present the Hon. Reverdy Johnson
and William H. Norris, Esq, the part of the
Commissioners William Price and Thos. S. Alex.
ander, Esqs., on the part of the city. A very
large number of other members of the Bar were
| also in attendance.
At few minutes past 10 o'clock, Judge Martin
took his seat and proceeded to deliver the follow
ing opinion:
The general question presented for my consideration in
this is whether the Act of the General Assembly OF
this State passed its late session. for the purpose
creating permanent Police for the city of Baltimore is
to be treated by this Court valid exercise of ega
tive power2 is question not of expedency policy
but of power the magnitude of which has not been
looked That 1t is question IN reference to which there
may exist conscientious difference of opinion must
admitted. This is manifest from the argument the
bar 1t is be supposed that eminent counsel would
grave question of constitutional law, espouse a
principle advocate doctrine in the correct views
which they did soemnly believe and vet upon this
question find the leaders of the bar divided in opn
ion On the side it is said that the chartered rights
of large and prosperous CITY have been Invaded hv
legislative encroachment which has warrant in the
Constitutions and upon the other side it contended that
the General Assembly of the State in re-arrangng the
police power of the city, has only exercised that
vision and control which belongs to that body by virtue
of its controlling all the municipal corpora
tions of the State These conflicting claims discor
dant opinions can only be adjusted by the judicial ribu
mails of the State.
cded and the opinion which am about to pronounce is
the result of calm dispassonae and deliberate exam:
nation of the whole subject 1t perfectly manifest
any right which the Mayor and City Council may possess
to the exclusive exercise of the police of the city
be derived either from Legislative grant
that right must be secured by the Constitution The
tenure by which these powers held must be either
Legislative Constitutional tenure And the questions
to be considered are First what is the scope and the
tent of the authority of the General Assembly the
Mayor and City Council with respect to these police pow
statutory, delegated powers irrespective of the
| Nineteenth Section of the Fourth Article of the
Constitution of the State? And, Secondly, What is
the operation and effect of that section, as a re-
stranng provision upon the general Legislative power
These the prominent questions upon which the whole
controversy turns and have been argued by the
| tive counsel with unsurpassed ability.
1t be conceded that the city of Baltimore has been
recognized by the existing Constitution of the Ter
rank and position of county, and such entitled be
represented in the General Assembly But Baltimore il
still municipal corporation created by the Government
for political purposes as counie towns and villages
created and SUCH invested with subordinate local.
egaed legislative powers to be exercised for the promo
ton of the public good subject always to the supervision
and control of the Legislative power the parent power
Gill j. 397. All the power of the corporation
from the State and when tax is imposed by the Mayor
and City Council police power is exercised, it is The
action of the State operating through the nsrumentay
of its municipal agent The city of Baltimore is pot
cal community but not distinct community the citv is
integral part OF the State portion of the body poll
tic; one of the branches of the government Md Rep
102 constituted political agent by the State, for the
efficient and convenient exercise of the police powers
of the government and is clear proposition that the
power to employ any agent for these political OBJ
jects includes the power to substitute municipal
for another In the of municipal corporation, the
vsaoral power resides in the State, and the State ha
the exclusive right the trustee of the public interest
30 inspect regulate control and direct the corporation
and its funds and franchises because the whole interest
and franchises conferred for the public
vantage Such corporations always governed accord
Ing to the law of the land I'd. Kent 1853, 9th Gill anG
John 40l The in the Legislature repeal mod
y the local Legislative delegated to their muni
cpal corporations involves violation of the obligation
of contract within the purview OF the 10th of the
first article of the Constitution of the United States fol
in those corporations the State is the only party and the
corporate authorities merely trustees for the public
I'd Kent 35S. There is vested right be disturbed
for the Mayor and City Council have, against the
State vested right to retain undminshed those loca
powers of legislation antecedenty delegated by the char
ter and its supplements because those
| ferred by the State upon the city authorities az
its municipal agent, created for purposes connected
with the administration of the government. Besides il
is great mistake suppose that the absence the exist
of authority in the Legislature to repeal modify
the police powers which may have been from time to tim
delegated to the Mayor and City Council depended upoI
the fact that the city had been chartered Incorporated
The Incorporating act neither gives norprevens this
troll The controlling power of the Legislature stands
the proposition that this municipal corporation is in
strumen of the State, created for its purposes II
the of Dartmouth College rs. Woodward, Wheat
6S3 Mr. Chief Justice Marshall From the fact then
that charter incorporation has granted nohina
be inferred which changes the character the nsti
tntion or transfers to the government any powe
over it. The character OF civil ins titutions do not grow
out of their Incorporation but out of the in whcl
they formed, and the objects for which they were
created. The right to change them is not founded
their being incorporated, but their being the nstru
ments of created for its purposes The
institutions, created for the objects though not in
corporated would be public institutions and of
controlable by the legislature. The incorporating
neither gives prevents this control"
1t will be found that the principles thus stated sup
ported by an unbroken series of adudicatons which it
| impossible to resist.
In the case of the State rs. the Baltimore and Oh
Railroad Company, 18th g. and j.. 436, Judge Stephen
speaking for the Court of Appeals used this language
"WashiDgtsn county is integral part of the State
portion Of the body potc and the money if received by
her. would belong to her public property in her pub
political capacity, to be applied exclusively to the public
As county she stands to the State in the relation
of child to parent subject in all respects to it's urs
dicon and power well entitled to the benefit of it
fostering and protection As member of the politi
cal family she has right to participate in the legisla
tive councils of the country but the will of the majority
when expressed according the forms of Constu
ton binding and obligatory upon her and that will
the rule of her conduct she is bound submit with
coming difference and respect
quote the opinion of Mr.. Chief Justice Taney in the
case reported in Sd Howard $50 In speaking
the Commissioners Of Washington comfy says: ''a
relates to the Commissioners they not named in the
law, they in any shape parties to the contract
supposed to have been made is the money declared
to be for their They corporate body it is
and the members who compose it chosen by the peo
pie of the county. But like similar corporations every
other county in the State it is created for the
| of government, and clothed with certain defined and
limited powers enable it to perform those public
ties, which, according to the law and usages the State
are always intrusted to the local tribunals. But
however chosen their powers and duties depend the
will of the Legislature, and modified and changed,
the manner of their appointment regulated at the plea
| sure of the State"
In the case of the Dartmouth College u.s. Woodward
4th Wheaton, Mr.. Justice Story at page 671, this
strong language when the corporation is said at the
bar be public it is not merely meant that the whole
community may be the proper objects of the bounty bu
tba haya
the public interest, to regulate control and direct thu
corporation and its funds, and its franchises its
will and pleasure Now such authority does not eXs
in the government except when the corporation is in thu
stricest public; that is, where its whole interests
and franchises are the exclusive property and domain
| the public" The principle is asserted by Mr. Jus
tce Washington, at page 660. And in the of the
Regents of the University Of Mary yand Williams, 9tl
G. j., 397, the Court of Appeals say "A public cOrpo
that is created for political purposes con
nected with the public good in the administration of th
local government instrument of the government sub
ject the control of the Legislature, and its members
officers of the government for the administration dis
charge of public duties, as in the case Of cities ant
towns"
In speaking of East Hartford a municipal corpora
ton, Mr. Justice Woodbury. at page 534 10th Howard
this clear and strong language The grantees like
wise, the towns being organizations for politica
purposes liable to have their powers, rights
duties modified abolished at any moment by the legis
laure They are incorporated for public and not for pr
objects. They allowed to hold privileges o
property only for public purposes The members are no
shareholders joint partners in corporate estat
which they can sell devise to others-which b.
attached and levied for their debts Hence generally
the dongs between them and the Legislature are in tn
of legislation rather than compact and subject
all the legislative conditions just named, and therefor
considered violated by subsequent legisativ
changes. 1t is hardly possible to conceive the ground
upon which different result could be vndicated withou
DESTROYING all legislative authority checking
legislative amendments and improvements, well
supervision its subordinate public bodies. Thus
of the highest attributes and duties of Legislator
is regulate public matters with all public bodies
less than the community from time to time, in the
which the public welfare may appear to demand.
It is not necessary to vindcate the position
this branch of the by the counsel for the Realtors
to maintain that the Legislature is invested with the
thorty to annul or abolish the charter Of the CITY, Tn
franchise of governing the city through the insrumen
tality of a Mayor and City Council, is think secure
and recognized b! the Constitution. . ut this franchs
of passing ordinances and exercising local legisativ
powers for the of the municipality is suheC
the control of the sovereign power of the State 1t
apparent from the passage already quoted from the opn
of Mr.. Chief Justice Marshall at page 63S of the 4t
of Wheaton, that the Incorporating act neither gives nc
| prevents this control.
consider then that authority of ths Legislature
repeal the police powers heretofore delegated to the MAY
and City Council and to vest those powers in the Boar
of Commissioners created by the Bill is clearly establish
ed by the to which have referred unless that
thory has been restrained prohibited by the 18th
tion of the 4th article of the Constitution.
This presents for consideration the proposition upo
which it has been said the counsel for the responder
mainly rely 1t is this-that the whole ground
by bill is already pre- occupied by the Constitution
place the entire arrangement made of the subject
the Constitution itself That by the very terms of Il
the Legislative Police is made to exngush the Coz
stitutional Police of the city of Baltimore, which
be done unless the law is held to superior the Cor
> stiution.
, In considering this question, it is necessary inqu
into the and of the power of the Geuer
d Assembly of the State.
. r.