The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1860-04-19
DECISION OF THE COURT OF APPEALS
IN THE POLICE CASES.
OPINIONS OF CHIEF JUSTICE LEGRAND AM
JUSTICE TUCK.

State at the relation Of the Board of Police of Bal
t'more City, and The Mayor and city Council Of Bal
t'more rs. Ho,oord and others. Judges Bartol anC
Ecceston filed opinions, but concur in affirming
the decision of the Court below
OPINION or CHIEF JUSTICE LEGRAND
eide on this appeal grow out of portion of the enact
ments of the Legislature at its session and particu
Bn fs 'e a'' generally known as the Baltimore P0li'
Alternately this act has been criticised and defended
te par ana always with zeal and ability according t.
the peculiar views in regard to it of the eminent coun
sci who have considered its provisions and who hav,
pointed out agreeably to their respective opinions it
repugnancy to or harmony with the language and spr
OF the constitution of the State If consciousness
fetal obligation and the intrinsic Importance of the
quries involved did not demand it, the earnesness
the confidence in their soldity, with which the argu
ments Of experienced and well informed ursts have
addressed tribunal would sufficient to chaeng,
all the patience of examination and dispassonac reec
tion of which it is capable
The questions be determined if not novel in the his
tory of Jurisprudence nevertheless of grave
character and in their consequences large magnitude
Apart from their purely legal nature theV are supnosed
to include matters the particular settlement of which
Will ascertain in the future the aCendency of some one
of the divisions into which the people of Baltimore are
politically classified 1t is hot improbable that this
circumstance considerable part of the interest with
which the discussion has been invested its origin
The popular mind very naturally views subject this
ana Ike character as 1t would one to be passed by il
at the polls in the exercise of the elective franchise color
| complexion of
the dogmas to which it has been accustomed give
aleg lance and support And it requires neither
enslVe experience or observation to satisfy
under the influence of such feelings the citizen has not
been unfrequenty found time sanctoning or op-
posing particular measure when after been put
in operation his opinions have undergone radical and
thorough change its popriety and usefulness But
whatever may be with him the controlling impulse to
tlon in any particular with judicial tribunal no
such rule can be observed without palpable departure
from the obvious path of duty With the convictions
the preJudces OF the sincerely
erained or worthy of respecIeSS they be sustained Jy
e a'c which it is its obligation uphold
of Justice cannot concern itself practical
| tality and enforcement.
The Constitution and laws fix the boundaries within
which their ministers act. All action outside is
forbidden usurpaton and therefore, tyranny In all
governments having just preensons to be consider
ed free limits are established to authority Of whatever
character it may be. "There be liberty" says
Montesqueu "where the legislative and executive pow
ers united in the same person, body of magis
from the Legislative and Executive powers" The
ing of this, says Mr.. Madison, is not that these depart
ments ought to have partial agency control over
the acts of each oher but amounts this "hat where
the whoe power of department is exercised by the
same hands which the whole power of another
department, the fundamental principles of free Const
tuition subVertcdn But of this more hereafter Su
nee ltor the present. that in the true sense of Monies
quieu in this each of the of the cone
cracy the of government have parceed out
to be eNerted by separate and distinct departments 1t
IS Tor the Legislature to enact the Judiciary to eXpound
and the Executive to enforce laws None the depart
ments are absolutely sovereign in all things but only
within their proper limits According to the theory on
which State Government is founded the people are
recognized as the of all governmental power They
are this sense the true and only soyerepns For their
| good, they have authorized BODY chosen
by themselves, to exercise, under certain prescribed
limitations the supreme power. This body is known
common parance the Legislature and except in cases
| prohibited either by the Constitution of the United
States or that OF the State, is free and competent to
act in the passage OF binding and effective laws would
b. the people themselves if they acting in their pr
mary and sovereign capacity as pure democracy.
strained only by their sense fiusce and expeiency
Ihe difference between our State Government and the
pure Democracy consists in this: In latter the people
have the power to DO as they may please while in the
former their delegates have the scope authority
save in so far as there be express necessarily iDed
limitations on it. Without these limitations their power
is absolute This definition is nowhere denied by persons
familiar with the nature of our political institutions and
has been affirmed ny the courts of every in the
Union, whenever they have been called upon to pro
nounce in regard to it. 1t would be needless labor to
enumerae the in which there been palpable
recognition of it, 1t distinctly recognized in the very
able and lucid argument addressed this Court by Mr.
Alexander one Of the counsel for the respondents in the
following apt languageI agree" said he THAT in the
absence of Constitutional limitation the legislative
power extends to all appropriate subjects of legislation
that the limitation is the exception and that he who
would insist upon the limitation must prove it, But it is
not at all necessary that the Limitation should be created
by express words; may be made out by Implication
sung from the grant of power from another Department.
Legislature
This being the question then whether there be
anything in the law under review which is con
ct with the provisions Of either the Constitution
United States of that of the State of Maryland
tis question Is purely one as TO the power residing in
the Legislature to pass it, 1t does not touch the ereic
cy utility of the enactment. These were matters
the ctctdSre decision of the Legislatures 1.-The result
the deliberations of all collective bodies must necessarily
be compound as well of the and preiudces of
they composed - SIS No. of Federalist And "the
degree in which measure is necessary never be
of opinion, and only he test of expediency. The
relation between the and the endbctween the
of means employed towards the execution of
power and the object of that he the
teron of fcorstitutionay not the or less of
sity or utility. restrictive Interpretation
/ al ppntr tI,ig
maxim of construction, namely that the powers
ed in constitution of government, especially those
of country, its finances, trade defence &C. ought
be construed literally ddrdncement Of the liic good
This rule does not depend the particular form of
government, or on the particular demarkaton of the
boundaries Of its powers Ct on the mature and objects Of
| Washington, Feb 23d 1871 These canons of inter
probation have been received and acted upon with appro
baton by the courts of the States and by the
| Supreme Court of the United States
IT, therefore, the Legislature had the constitutional
power to pass the particular law in question: was
win the Legislature and with it alone, to determine
whether or not there existed necessity passage
its judgment in the matter being conclusive regard to
that fact, If the act be obnoxious any objection which
makes it the duty of the Court to pronounce nopera
tive it must be so because of aOant Of in the
Legislature to enact it, what is power but the ability
or faculty Of doing thing2 What is the ability to do
thing but the power of employing the necessary
its execution What is legislative power but the pow
| er of making laws2 What the to execute
legislative power but laws? What is the power of Law
ing and collecting taxes but legislative power or
|
| are the proper means Of executing such power but
necessary and proper laws2" no 80 Federalist The
object of the act Of the last session the General Assem-
bly, is to provide permanent police for the city Of Balt
more so as to insure the protection of the rights
and property of its inhabitants OF the necessity for such
law the Courts be the judges and for the re
sons we have given. But it is unmstakabe that the
characer of the law and the polUeT to pass it, fall directly
within the category of question and answer we have
quoted. Adopting it just and proper standard we
can have no difficulty in deciding that both the
power are in their nature strictly Legislature and that
less there be some express necessarily implied in-
bition against the the other, BOTH
in the Constitution of the United States the State
Maryland, the law must stand relieved from all judicial
| censure.
Such prohibitions it is urged, are be found Those
suggested will be examined the order in which they
| WeIe presented al the bar.
Its welestAbished principle ofjudical construc-
tion that before of the Legislature ought to be
elared unconstitutional its repugnancy the provisions
or necessary implications Of the Constitution should
manifest ana Tree from all reasonable doubt. If its
character in this regard be questionable then comfy
and proper respect for ordinate the gov
enment should determine the matter in favor of the
on OF the latter This doctrine has been uniformly held
1t was remarked by Chief Justice Buchanan in the case
1tIhe M Regents of the University of Maryland Will
mans 9Gill johnson, $685. that it had been said
that legislative act should be pronounced uncon
sttution or invalid in doubtful case; should it
where the doubt is bona fde and wellfounded and
the result of Discrimination deny the authority of the
Legislature which all must feel, but none should yield
to in violation of solemn duty. But where Judge is
satisfied, upon full consideration that an act the Leg
isature contrary to the Constitution of the United
States the supreme law which he bound to obey and
| IN conflict and cannot stand with it. or
is Tor any other reason invalid, he has no
cholce and all that left him is honestly and fearessy
to do his dutyfrOm the faithful discharge of which how
eyer unpleasant the task, no upright judge shrink
II he would On the other hand, judge should not suf-
fer himself to be betrayed TO pronounce uncons
tutional or invalid, insufficient grounds morbid
apprehension that contrary decision might he ascribed
TO the want OF aJust and proper of judicial duty
In the case of the State, of Washington county
| the Baltimore and Ohio Railroad Company (I2 Gill &
johnson, 1885, the court, whilst recognizing the obga
ton, under certain circumstances to pronounce against
the validity of act of the Legislature says that to
declare an act of ordinate depatm the govern
| ment an unwarIantabe assumption usurpation Of
powers, because it is violation of constitutional pro
vision is exercise of the judicial office of grave and
delicate nature, which never be warranted but in
clear case IL has also been generally held that
poraneous Interpretation furnishes reliable light as to
the meaning OF clause otherwise involved
or doubt. "Contemporaneous eNpositiOns doubtful
provisions in all instruments and particularly egis-
atve enactments and constitutional charters
to be legitimate and useful of construction
0pnions of the Justices of the Supreme Judicial Court
Of Massachusetts questions submitted con
sideration. Pick SIS: Kiersted and others Us. the
State Gill & Johnson 24S; Egerton et al rs. Rely and
wife, ibid, 3S5.
1t is essential these rules Of Interpretation should he
borne in mind when clause of our State Constitution is
actand one, too, which goes to its entire eyi.enceis
tha he appointment by the Legislature of the Commits
sonefs named in it is violation of the Constitution
only because 1t is usurpaton of powers which, in
her nature, are administrative executive but is in
conct with the express language of the Constitution
seii both aspects of the objection may be viewed
gether The political aphorsm that the several
departments oil the government ought forever to he
kept separate and distinct has already in this
opinion oeen alluded to, and its meaning sought to