The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1860-04-19


IN the superior Court shows the bestowa great car
and his usual ability in its preparation The views ther
adNe are IN ln concurrence with those herein present
ed The Judgment pronounced by him be affirmed
As it was agreed, the relation of the Mayo
and City Council of Baltimore well that at the rels
tion Of Charles Howard and Others should be considere
as submitted for the decision Court and inasmuc
as all the questions applicable to both have been
sldered and decided the order of the Superior Court
the former well that in the latter is to be affirmed
Orders in both cases affirmed.
OPINION or JUSTICE TUCK.
Whether the present case possesses an unusual degre
OF Importance in view of the circumsan which ii
sald rendered necessary the passage of the law unde
review or OF the supposed difficulties which may aten
its practical operation if the Judgment below be affirm
ed is question with which the Court has no concern
IL involves considerations of eXpedency anih publ
policy of which the Legislature the exclusive Judge
and which We must assume were fully weighed and de
| termined when the act passed.
In another aspect, however its consequence has no
peen undervalued by the counsel overlooked by tn
Court while calmly considering the arguments adduce
IN support OF their respective views of the Constitution
and theory OF government under which we live Wher
this department is called upon review the acts of
coordinate branch of the gOvernment-the members O
9%otn % having entered upon the discharge of ofl1cia
duties under the solemn sanctions and witt
a IKE sense OF responsbility-we cannot fail t.
realize that the matter is of the gravest character an,
demands our most careful and dspassonate considera
ton In such cases there is conflict between the LIE
Sislature and the Judiciary the contrary to pre
vent strife and possible collision among those on whom
the legislation to operate that are made the fna
arbtcr between them; the spirit of our institutions in
cucang and eXacting obedience to the laws as
ced by the appropriate tribunals. And although wher
the Court satisfied that the legislation has exceeded
Its authority, we would no more faer in denouncing h
act as vOid than should hesitate in deciding the mos
unmportat matter within jurisdiction, yet in cases
of doubt on the question of power it would he improper
to interfere We could not do without assuming wher
1t did not clearly appear that the Constitution
violated which should not be predicated of another de
parment III the discharge of functions peculiarly its own
as the law making This is the settled doctrine
in this state and, as far as Informed, in every
case IN which the question has been considered Regents
u.s. Williams, Q G. j. 1885, State Of Washington Co
rs. b. d D. R. r. Co, II e. Il. J. 500.
The Mayor and City Council of Baltimore public cor
poration charged with extensive franchises for municipal
purposes had for many years prior to the adoption
the Constitution organized police force for thf
protection Of the city, which had from time to time
increased in number and the regulation thereof changed
the of people seemed to require II is not
necessary to specify these changes refer the Acts
Assembly authorizing them; let it suffice that the vald
ty of the laws was questioned the ordinances
of the city, in that behalf considered beyond the limits
of its charter Whatever he thought of the effect
ofthe Constitution the charter prvegesof the corpo
raon is not be doubted that the Legislature consider
ed the city as remaining subordinate the power the
State, according TO the general doctrines applicable
to public corporations % G. j. 397, 4Ol, Cranch 81
II G j. 49, 440 for at the session of 1883 ch 46 the
Legislature passed act "to provide for the better
security of life and property in the city of Balti-
more, by increasing and arming the police force
thereof" whereby the May and City Councils were
authorized to increase and strengthen the police
to arm and pay them and to indemnify them when in.
jured in the performance Of duty and find that in
1856 ordinance passed to establish police force
for the city of Baltimore which approved 1st Jan
Revised Ordinances of 1885, (No. 3O) This ordinance
having abolished the old police system the one therein
prescribed took effect the LIST of March, 1857
mained in operation until the session of 1860 when
Legislature passed The now under consideration
whereby all former laws and ordinances in relation to the
police OF the city were repealed, and different system
established the details of which forth the law
and to carry them out Commissioners in the
and every power deemed necessary to that end
conferred upon them. This law deprives the city au-
thores OF all control over interference with the po-
lice Of city, except provided by the 10Th section
OF he m it1tia aaIf
MED the validity of the law and refused compliance with
its terms for the pupoae of having that question
mined the duty devolves of deciding whether it
legitimate exercise of legislative power.
At the very threshold the Realtors are met wi the
objection that the law is radically void because the egis
ature had no power to appoint the Commissioners in the
act 1t is plain that this point if well taken strikes down
the law at one blow; because if not validy appointed
they cannot proceed to putt in force and all other nsru
mentalities must fail But if the Legislature had power
to make the appointment say ght not
to have been exercised any than we could with pro
prety pass upon the OF its Judgment in Sc
ectng these officers. 1T is question oflcgisative
power, and as such alone can we treat it.
1t is conended that the power of appointment being an
intrinsic executive function, the naming of the Commits
oners IL the law in violation of the 9th article the
Declaration of Rights. 'That the Legislative executive
and judicial powers Of government ought to be forever
separate and distinct from each other and person ex
ercng the functions of one of said departments shall
discharge the duties of any other"
We not prepared to admit that the power appoint
ent to Office function intrinsicaly executive in the
sense IN which we understand the position to have been ia
ken, namely that it is inherent in and necessarily belongs
to the Executive Department Under forms of gov
it may be regarded but the reason does not
apply to systems of checks and balances dis
rhuton of powers where the people the
fountain of government, eXertng their will after the
manner, and by instrumentalities specially provided
in the Constitution. The cited t3 J. j. Marshall
4Oll arms that it is intrnscay executive; but the
Judge explains that the nature of the power eTecMire
whether exercised by the Governor, Court as dis
tnguished from those which merely judicial But
it is nowhere nmated that another department the
executive cannot exercise the power; the contrary
the disposed of the ground tina. the Court
had the power to appoint the Clerks aud that its udg
ment could not be interered with by way appeal from
the order of appointment And, indeed, here it is admit
ted that the executive cannot act where other
appointment are prescribed by the Constitution 1t is
true that certain powers peculiar to each department
as their designations impor2 Nd 452 The Legislature
makes the laws theJ judiciary eXpounds them and the Gov
that they faithfully executed but in this
duty he restrained in some degree because they
enforced according the Constitution and Laws and
not at his will discretion 1t oes not follow as
necessary conclusion that in order perform this duty
he must have agents of his nomination. Our form
in its various changes
this power executive prerogatve. Under the
Constitution Of 1776, although appointments gener
ally made by the Governor and Council of the most
important not. Registers Of Wills were commits
stoned by the Governor the recommendation of the
Senate and House of Delegates-the power the Gov
and Council to make an appointment being limited
vacancies during the Of the Legislature and
then continue only until its next meeting SO the Clerks
of Courts appointed by the Judges the power the
Executive being restricted vacancy and until
the meeting of the Court. This however, was changed
by the amended Constitution 1886 which conferred th
consent of the Senate- branch of the Legislature vet
pro hGc pce dschargng executive duties If look to
the present Constitution, find a similar state Of
things. The Clerks ana Registers and other officers
elected by the people, But when va
in some-flled by the Executive. In such emergency
the Clerks and the States Attorneys are appointed
by the Court-the Register of Wills by the Orphans
Courts-constabes by the County Commissioners; and
as to Clerk of the Court of Appeals the Executive de-
partmert has power whatever the appointment resi-
ding with the judges Under the old Constitution the Trea
and Commissioner of Loans appointed the
House of Deegatesthe Governors power extending only
to cases of under the present the Treasurer
as well the Librarian receive their appointment from
the Legislature. These instances sufficient to show
the Constitution, far from treating this an in
herent Executive power indicates that it belongs where
the people choose TO placeit
But this article is not to be interpreted as enoinng
complete separation between these departments
Practically it has never been in any of the States
whose fundamental law the principle has been asserted
There instances to show that it has not
been regarded in this State, for statute books
contain time and again laws afTording relief where
the Judiciary possessed ample jurisdiction over the
subject matter How this kind of legislation came n he
introduced it is useless to inquire 1t was commenced
soon the adoption of the Constitution probably
ticpated in by of the trainers of instrument
and has been continued since; and we know that
valuable estates are now enjoyed upon higher title
than such Acts of Assembly operating as judicial decrea
of appointments by the Legislature are equally
if not more numerous. Many were cited in argument
and of them in regard to matters Of vital
the CITIZEN especially those relating the CITY of
Baltimore 1t may be- as suggested in argument that
persons named in these laws regarded as
fcers the meaning of the Constitution but does it fol
low that these Commissioners within the class
templaed by the Constitution We do not mean tn
the Constitution in its prohibitions operates only on
officers known to the Constitution and does not extend
to those created by law though opinion that effect
by the most eminent ursts of his time (Wm Pink
ney) is on file in the State Department and for many
wears furnished authority for appointments seemed
to have prohibited by the Constitution We alude
to this legislation evidence of contemporaneous CON
and acquescence by the people and the ya,os
departments of the Government such practical
pretaton For the effect of such continued practice see
Burgess Pue, Gil, II; Mayhem u.s. State GiI 4s7
1t true that il intmated rather than decided in
G. & j., 4l6 that unconstitutional of Assembly
affecting private corporation be made yali1
by acquiescence in it, but the Court had held in
Shdfer StonebrGer, G. j. 345 that the practice
of sustaining special demurrers had engrated upon the
act Of 1863. ch 3 Interpretation that nothing
act of Assembly could change The same doctrine was
announced in Nc CIdo1tJh The State, Wheat 316
See also Bradford Jones' Nd 351 that the coustitu
may receive Interpretation from long constant
and uniform legislative practice There also nstan
in which the common opinion of the profession and
regarded safe guides the adjudication of points of
law. See 5 Nd. 27l, Md 3l7, Nd. 442 G. & j y3I,
9 c. & J. 2S5. Is it not important that the in
depreciation of the fundamental law should be as
ments In both the intent Of the authors is
the point he arrived at and the rules and means
it may be resorted to- If such copsdera
establish the light of the Legislature to make
appointments this kind, they well Calculated to
very serious doubts the subject in which state
judicial mind the law must be to operate until
changed by the proper branch of government
In considering question the separation of tbe
departments must bear in mind that the Declaration
Rights is not to be construed by ITSELF according o
literal meaning; it and the Constitution compose onr form
ofgovernment and they must be interpreted as one in
strument G. j. 472 The former announces princi-
pies which the government about to be established
will be based II they differ the Constitution mus s
taken limitation qualification the general prp