Frostburg mining journal. [volume] (Frostburg, Md.) 1871-1913, 1886-06-19

the power intrustcd with the execution of the
laws.-Boupier's Lar Dictiondry
To pardon is therefore an executive, not
Legislative act.
If it be argued that to remit fines is not
equivalent to pardon, but that fine may
be looked upon as a claim or debt which the
Mayor and CounciImcn may remit if they
think it has been wrongfuly imposed, the
| Court of Appeals has decided (The State as.
Mace, Nd, 1870 that the term, debt, is to
be understood as an obligation arising other
| wise than from the sentence of the court for
a breach of the peace or the commission of
crime" But even considering the fine as a
claim or debt, how can the Councimen de-
| termine whether there has been wrong
| or hardship i'll its imposition? Surely they
cannot determine either from common
rumor, or from the er parte statement of the
defendant himself. Can they, then, review
the proceedings had before the magistrate, or
summon witnesses before themselves? This
would be exercising judicial powers.
The Legislature cannot exercise judicial
powers.--HHler u.s. State, Gill, 145 Dorsey
Us. Dorsey, 81 Md, 65.
The Legislative, Executive and Judicial
| powers of Government ought to be forever
| separate and distinct from each other, and no
| person exercising the functions of one of said
| Departments shall assume or discharge the
duties of any other.-Declaration Of Rights,
Article 8.
The fine in this case has been paid to the
Mayor and Councilmen "for the use of the
town. They therefore hold it as trustees.
Suppose the money has already been used for
| municipal purposes or, for better illustration
suppose the Charter directed that the money
should be used for some special purpose for
instance, for the support of some charitable
institution, and it had actually been paid
over to the officers Of that institution, and
| the Mayor and Councilmen were asked to
remit the fine, could they levy special tax
for petitioners benefit? | believe any tax
payer in the town would have the legal right
to refuse to pay tax levied under such cir
| cumstanceS.
y municipal corporation has no power to
levy taxes which are not expressly author
lied either by its charter, or by some general
provision of law-4bJotts digest, 1927.
a public use or purpose is the essence of a
tax. a tax for a prirote purpose is void.-DH-
! lon on Nnnjcipdl Corporations, $5S7.
There are in force in many towns of the
State and of other States gcnerm ordinances
providing for the remission of fines by the
Mayor, or making some other general pro-
visions therefor. Now, even supposing that
the Mayor and Conncilmen of Frostburg
have the power (Which | think ert,unely
doubtfuD to enact gcncrdl ordinance regu-
lating the remission of fines, it by no means
follows that they have the power to pass a
| special ordinance remitting the fine in an IN
! diUidudl case.
The General Assembly shall not pass local
or special laws refunding money paid into
the State Treasury, or releasing persons from
their debts or obligations to the State unless
recommended by the governor or the officers
of the Treasury Departmental Constitution Of
Marylantd, Article 3, s33.
In view of this section / seriously question
whether the General Assembly, having itself
no power to pass special laws Of this nature,
could by cypress words in the charter grant to
Its creature such power; and in absence of
such words we surely cannot assume that such
power is implied, especially when provision
'DA
magistrate by appeal to the Circuit Court.
Finally, the remission of fines by Municipal
Corporations cannot be justified by usage.
In case in Massachusetts the learned Chief
Justice Bigelow, after stating the decision of
the Supreme Court that the towns in Massa-
chnsetts had no authority to appropriate
money for the celebration of the Fourth of
July, remarks in relation to the attempt to
sustain the appropriation on the ground of
usage:
Usage cannot alter the case. An un-
lawful expenditure Of money by town
cannot be rendered valid by usage, however
long continued. Abuses of power and viola
tons of right derive no sanction from time
or custom. casual or occasional exercise
of power by one or few towns will not con-
stitute usage. 1t must not only be general,
and OF long continuance, but what is more
important 1t must be a custom necessary to
the exercise of some corporate power, or the
enjoyment OF some corporate right, or which
contributes essentially to the necessities and
conveniences of the inhabtants.-DWo Oh.
Municipdl Corporations, s57, p. 176.
The question presented for my consider
ton was whether the Mayor and Council
men as a legislative body has the power to
remit fines, not whether the Mayor acting
alone as the executive has such power. |
have therefore, not directly considered the
latter question, and shall now refer to it only in
) the brietest manner possible. The only reason
that could be advanced to support the pffirm-
ativc side would be the analogy to the
Executive of the State, who has the power
! under certain regulations, to pardon and tc
remit fines by special and express provisions
OF the Constitution and Acts of the Legis-
lature-an analogy too remote and uncertain
in my opinion, to support the idea that the
Mayor of Frostburg has impliediy a similar
power. The Mayor, by provision of the
I Charter $50 shall preside at all the meet
ings of the Council, and have the same power
Of voting and taking part in all the dclibera-
: tions of the Council as any member thereof"
He has not the veto power. In many other
, respects it could be shown that the analogy
if there be any at ALL between him and the
: Governor of the State is very slight indeed
1t will be seen that the above refers ONLY to
your technical power under the law | will
add that though | think as a general thing
,.tiSants ought not to be assisted in attempting
ogain by extraordinary and unusual remedies