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


mainder Of In either aspect they constitute vail
objection to the law. Davis Us. The State Maryland
| 1911
The power given to the Commissioners in a certa
contingency to issue certificates of Indebtedness
properly before the court this appeal No such
tificates have been, may be issued. 1t nigh
perhaps be time enough pronounce judcially in
gard to il when the validity of such certificates
tested which cannot until they have exstenc
by the uterance of them. But the question has
most fully argurd at the bar and were it necessar
for the determination of this case there ought he
hesitation in deciding that such certificates of indebted
ness are not within the puryew of the Constitutions
interdict eXpounded by the Supreme Court Of tn
United States the tribunal whose judgment is conclusiv
upon all in regard to the matter See Craig s the Stat
of Mssour4 Peters 4l0; Briscoe Bank of the Common
wealth of Kentucky, II Peters, 257 Another objection
to the act is The power it confers on the board of Com
missioners to call out the militia, it being alleged tina
1t is an improper interference with the Governors
tuona prerogative under the 9th section of the
article The section is in particular comprehen
siye OF power to the Governor than the SD section
of the Constitution of 1776. By the latter Gov
Council, authorized to embody the militia ant
when embodied alone to have 1.-THE direction
thereof" Under the present Constitution he may cal
out the militia to repe invasion, suppress insurrecon
and enforce the execution of the laws but shall
the command in person without the of the Legis
ature And yet under the Constitution of 1776
doubted the power of the Legislature authorize tn
calling out of the militia without the of the Ex
ecutive Accordingly many acts were passed making
the duty of subordinate officers to bring their command
into the field on the requison OF certain civil officers
The following acts may be referred instances Of tn
chapter l2S section 6; lsl3 chapter TO- sections and
1915 chapter 1885, section lS 1928 chapter 1885, section 20
lSSl chapter hl section 81 1885, chapter d. section
1885, chapter l07 There nothing whatever in the ac
which abrdges the constitutional power of the Governor
he still has under it, the power to call the militia
10 repel lhVasion suppress insurrecton and enforce
the laws. The whole scope of the authority given
the Commissioners is not extensive than that which
had been previously conferred others The purpose
the delegation is as obvious it is legitimate II
is to enable the Commissioners discharge faith
fully an important duty cast upon them, that is, the
prOhl nffa1
whether sudden or preconcerted having for their de
sign the outrage of the citizen, either in his person
his property both to sustain in an emergency the
gay constituted authorities in their resistance to the
violence of mobs and the like disorderly bodies The
arguments adduced show the dangers possible to flow
from an nJudicious employment of the authority would
be in degree weakened if the power were deposited
elsewhere. All delegated power is liable to abuse from
the wicked motives caprice, or Ignorance of its depOso
ry And yet the existence of government requires
1t should be condeA to the custody of some one The
jealous watchfulness a free people and the ultimate
liability to the injured of those who abuse their trust
together with the innate of right which every sane
man has are the only guarantees it is within the pro
vince of the lawmaker to afford the citizen. In word
every human contryance challenges the confidence and
trust of those for whose advantage is intended Abso
ute safety under every possible phase of circumstances
Is not to be expected because the fraty of mankind will
not allow it, Government ITSELF in one sense is an evil
Dut II Is necessary one and must be borne for the
raj good it secures.
If the section comforting the power on the board were
condemned then there would be authority with the
civil officers in Baltimore call out the militia to sup-
press sudden outbreak the Legislature having at its
last session. by act 1860 chapter repealed the
hundred and sixth section Of the fourth article Of the
code of public local laws which gave the mayor of the
city of Baltimore and the judge of the Criminal Court of
Baltimore and the judge of the Superior of Bat
more the power to order out the militia The of
this law taken in connection with the police act is to
cOnne the power far the city of Baltimore is con
cerned to the Governor and the Commissioners of the
board OF police Another constitutional objection
The provision making it the shers duty to act under
the board in the preservation Of the public peace and
quiet and to call out the posse il required by them and
enabling the board whenever the
ment warrants it, to the control and command of
all conservators of the peace in the city. The 2O
ton OF the 4h article of the Constitution which
tons the office and provides for filling does specify
or describe the powers and duties of the sheriff These
are left to the common law and the of Assembly,
The charge Of the other Conservatos of the peace is
where in the constitution given to him. There is no.
thing to prohibit the Legislature from adding or d
mlnising his duties, provided those added be not in
conflict with his Office sheriff. And what was said in
Georgia of the office Of sheriff in that State is equally
applicable to that officer and his duties in Maryland In
the of the State rs Dews (R. NJ CharItons Rem
4O4,) it was said by the court
at is true that the appon en of Sheriff confers upon
him the right to execute the duties of the office but from
the nature of the office those duties may be changed by
law 1t is in this State purely ministerial Office whose
functions and province is to execute duties prescribed by
law From the very nature of such office its powers
are the result of its dute in reference it the maxim
strictly true that power and duty correlave but its
powers do extend beyond-they are the mere conse
queuce of its duties The holder Of such office has power
only to execute its duties and because duties are
prescribed to and imposed upon him The idea that the
duties of ministerial officer he changed will in
Yolve an Inversion Of the order of things and he ia
grant absurdity it would invest him. who is mere min
lister and servant with authority limit power of
and exercise an oyermastcring control those from
whom he is to receive the law Those duties are the mere
creatures of law and are in their very
by the making power and his rights, which are de-
rivatve only from those duties cannot prevent their ere
alton or change. His rights which the consequence
of his dutie cannot intercept the authority OF the egis
lature to act those duties" Besides all this eycrv
citizen summoned by executive officer to aid him in
the preservation of the public peace service Of
in he of fal,
bound to perform the service required although it may
subject him to danger well additional labor trouble
and expense" Estate VS.. Mayhem, 2 Gill SOL
Ihe question next in order to be considered is whether
the of the property ought to be given demanded in
the petition for the dnddlnuS 1t in the discussion
OF tins question one OF the counsel for the respondents
Mr. Schley whilst animated by zeal indignant against
what he considered violation of the great universal
which distinguishes right from wrong 9lt0d Semper,
q"od pbiqe qod Gb omnibus creitln est poured forth
in warm language his denunciaton of the purpose and
effect of the section, if it wrought spolatOn of what
he and those whom he represented held sacred as their
right None who heard it could fail to appreciate the
rhetoric nor the ervor which gave to it the charm Of
forchle uterance Its spell with the bench was as it
should have heen but momentary the question in
Its original simplicity, reappeared for calm judicial dis
posa The petition for the nldnddmuS states that the
persons designated in the act organized
Board the sixth day of last February and that to
enable them to discharge the duties upon them they
need the use OF the taon-houSes and other buildings
specified by them The prayer for the ldRdanS which
the Ur mast fooc is that the court will issue he writ
of mdndd0iuS to the Mayor and City Council Balti-
more, commanding and enjoining them, the said
Mayor and City Council, Immediately after the
receipt thereof and without DELAY to furnish
and allow to the hoard of police Of the city Balti
more, for the police now under its exclusive
management and control. well the of the fire
alarm and police telegraph in said city, of all the sta
ton houses, watch boxes arms accoutrements other
accommodations and things provided by the said Mayor
and City Council of Baltimore for the and service of
the police created by it, as fully and to the
the al the time of the passage said act were or
might be used by or for the said city police" The right
to the demanded is given by the express language of
the l2th section OF the act, and the onV
FORE is Had the Legislature the constitutional power
provide it has done property was purchased
with the money of owners Of property and for the
benefit of the community at large Its dedication is the
public 1t belongs in fact to the people, although for
more effective use and protection the legal title it
vested in the corporate authorities of the city Those
thorites, for deemed sufficient were brought
into existence just as has been the Board of Commission
ers, for the public good Any power given to the latter
by the act of their creation, is on the same
limitations that conferred the Mayor and City
Gil OF Baltimore by their charter, that is 20 say,
both owing their origin to legislative act the powers
conferred BY it in each held subject the
son. modification repeal of the body from whence
they have been derived In other words they are pot
cal powers held and exercised for political purposes by
political or municipal bodies distinguished from pr
vate corporations. Public corporations such
created by the ment for political purposes
ties towns and villages, and the whole interest in them
belongs to the public" u Kent's Com, 275l "Oyer
public property they 1.-THE States have disposing pow
err per Justice Patterson, Dallas 800. Mr. Justice
Story, in delivering the opinion of the Court in Cranch
81 says "In respect also to public corporations which
exist only for public purposes such Counties towns
cities &C. the Legislature may under proper
have rig ght to change modify enlarge restrain them
securing hoeerer, the property for the ss Of those for
10ho and at lghoSe expense ii originally purchased
The act of the last session has preserved the property for
the use OF those for whom and at whose ex-
pense it was purchased. The only change effect
ed in regard TO 1t is to the persons who shall have
the control and management of it, The use of it is
in no manner altered. multitude of decisions could be
brought forth from every section Of this country and
England showing the difference between public and pri-
corporations. In Gill & Johnson 4Ol it said:
PNbc corporations to be governed according TO the
laws Of the land and the government has the sole right
the trustee of the public interest," to inspect regulate
control and direct the corporation its funds and anch
That is the essence of public corporation And
again "A public corporation is that is created for
political purposes, with political powers to be exercised
for purposes connected with the public good in the ad
minsiration of civil government instrument Of the
government subject TO the control of the Legislature
and its members and officers of the for the
administration discharge or pubic duties the
of cities, towns &c" Under the Constitution
Maryland the city of Baltimore is recognized as pub
Bile corporation established for public purposes and in
this character it is in wise dstingushe from
in far may be forbidden by the Con
stitution, like them it is liable to the control
of the Legislature. Were this not so, civil government
would be impossiblity, because of the conflicting
claims to the supreme power urged by the different geo
graphical departments into which the State separated
The power, under the limitations alluded to. which
only the limit but the of the power also the
depository of it Mr. Justice Story in Ddrno'A College
rs. HOodrdrd, Wheaton, ut is admitted the
State Legislatures have to enlarge repeal and
limit the authorities of public officers in their official ca
pacites in all cases where the Constitutions of the
respectively do not prohibit them and this among others
for the very that there is express or implied
contract that they shall doGS, during their cOntinugDce
in office, exercise such authorities. They are to
exercise them only during the good pleasure of the
Legislature These views fully sustained int
this State by many decisions and necessarily so by tha
of 1888 of The Mayor and City Council of Baltimore rs
Robert Lennon, (unreported) The State use of Wash
Baltimore Co 1