Montgomery County sentinel. [volume] (Rockville, Md.) 1855-1974, 1880-12-10
suite Axains. the so-Called sohooI


seen that three points are involved in it
viz: The Constitutionality of the present
school law, the manner in which the suit
was brought (the counsel for the appellees
claiming that 1t should have been brought
in the corporate name of the School Board
elected by the people under the Act of 1852
and the effect of the repeating clause of the
present law.
Frst-It was contended by the counsel for
the appellants that the exercise of this ap.
pointing power by the Judiciary is incon-
sistent with the theory and principles of our
government, and cannot be conferred by the
Legislature without doing violence to the
Eighth Article Of the Bill of Rights which
declares
That the Legislature, Executive and Judi
clal powers of government ought to be for
ever separate and distinct from each other.
and no person exercising the functions of
one of said departments shall assume or dis
charge the duties ofany other
If this article stood alone, it is supposed
that there would be no doubt of the want of
power in the Legislature to pass the law in
question, because it does authorize the
Judges to discharge the duties of that de-
partment to which the execution of the laws
is confided by the appointment of officers
for that purpose
But it. is said that the last clause of the
Tenth Section of the Second Article of the
Constitution meets the objection, qualifying
as it does, the general powers of appoint
ment by the Executive in the words sunless
adirferent mode of appointment is prescribed
by the law creating the Office" and mas
much as the Office of School Commissioners
is created by law, the mode OF this appoint
ment can be provided for in the same law
This view is answered, we think, not ONLY
by the consideration that the trainers of the
Constitution contemplated that the powers
of appointment that might be conferred by
the Legislature should not do violence to
the spirit of the instrument by giving TO the
Judiciary the exercise of powers not judicial
nor connected with the performance of their
Official duties as judges, but the power is ex-
pressly prohibited by the 33d Section of the
Bill OF Rights, which asserts the indepen-
dency and uprightness of the judges to be
necessary to the impartial administration of
justice and great security to the people,
and declares mo judge shall hold any other
office, civil or military, or political trust or
employment ofany kind whatever under the
constitution or laws of the State, or Of the
United States, or any of them," etc. This ex.
press prohibition was intended as one of the
means of securing the uprightness of judges
for it is plain that if the Legislature can con.
fer on the judges the power to fill small Off
ces of this kind, it may also give them power
to appoint to the most important stations
that it has authority to create. The legisla-
ture could not appoint the judges themselves
to be School Commissioners, because that Is
forbidden. What then is the difference in
principle between appointing them in law
to hold the offices themselves, and giving
them the power to fill them by the desgna-
ton OF others? Can any one estimate the
danger ofsuch power? For example: If
the Constitution had not made provision for
a Board of Public Works, and defined their
powers and duties, the Legislature might
create such Board, and provide in the law
for their appointment. OF course under the
SD Section of the Bill of Rights, the Judges
could not hold that office, but if the preten-
sions of the appellees be well founded, they
might be authorized to appoint the members
of the Board, and, il they thought proper, do
quite as much mischief, though those instru-
ments of their own selection, as they would
If they held the places themselves. The OBJ
lection may be expressed by other examples.
If the judges in Baltimore had the power to
appoint the Baltimore police, the law con-
ferring that power upon them would strike
the public mind with no less argument than
apprehension of the extent TO which its exer-
else might be abused and made available
for the personal or political advantages of
of the judges themselves
1t is in answer to say that the judges in
Maryland are too honest TO abuse such a
trust. We are dealing with principles of
Government and the construction of our
Constitution. Judges elsewhere have done
as bad or worse all men are human, with
like passions, differing only in degree.
Judges are now elected by the people, they
have their political views like other men,
and, on occasions of great excitement, would
scarcely help being more or less influenced
by them and by the expectations of their po-
litical friends in making appointments to
Office, though they might never carry such
feelings 10 the tribunal or to the conference
room. II is not unreasonable to suppose
that the trainers of the Constitution de-
signed that they should be kept altogether
aloof from participation in public affairs not
connected with the judicial Office, or the
courts in which they might officiate, and
that the last clause of the Tenth Section Of
the Second Article was not intended To au-
thorize the Legislature in this or any other
way to interfere with the independency and
uprightness Of the judges BY placing such
temptations before them; but on the con-
frary, that clause and the 9Th and 33d Arti-
Giles Of the Bill Of Rights should be considered
together, and as prohibitory against judges
holding any Office or having the power 10
appoint to any.
1t makes no difference that the judges are
not required, but only authorized, by impi-
cation, to make these Appointments. The law
says "Thc Board Of County Commission.
ers shall be composed Of three persons APP
pointed by the judges Of the Circuit Courts"
1s72, Oh. 377, Sub. Oh. 20, Sec. 2, page 81
Any requirement Of the kind would be alto
gether negatory If the judges refused 10 COM
ply with II. But the objection does not de-
pend on the form in which the power may
be given. Some judges, ignoring any such
Obligation, might perform the service from
respect 10 the Legislature; others might re.
fuse on grounds Of the highest public policy,
while others might gladly embrace the OPP
portunity Of magnifying their Office for good