Evening capital. (Annapolis, Md.) 1884-1910, 1901-12-30

In the opinion of Judge Chase, h,
says on page 247. that the following
points were raised and contended for by
the appellant Wilmington;
Ist. That an Act OF Assembly repug-
nant TO the Constitution is void.
and. That the Court has a right TO
determine an Act OF Assembly void,
which IS iepugnant TO the CONSTITUTION
3rd. That the Act OF Assembly passed
IN 1851, ch. "a. entitled an Act relative
to the administration of Justice in the
State, and TO repeal the Acts of Assem-
oily therein mentioned so far as as re-
spects the plaintiff tappellani. is uncon-
stitution nal and void.
4th. That the Assise OF Novel Disse-
izln is the proper remedy to re-
cover the Office of Chief Justice OF the
Fourth District. Notwithstanding the
concession of the appelle's counsel Of the
first two points. "the Court deemed it
necessary to state the reason and ground
OF their opinions on these points.
Omitting the discussion of the first
three points quote from the opinion D.
24o, The power and authority of the
plaintiff as Chief Justice OF the Fourth
district, and his Iight to the office of
chief Justice are created by and derived
from the Legislature, and the duration OF
his commission is limited by Act OF the
Assembly. Upon his appointment by the
Executive his acceptance of the commits
sion and qualifying under the same, a
right vested in him to hold the office for
the term OF years limited for the contin-
vance OF the law, which right was not to
cease or determine but on his death, or
on his being convicted in a Court for
misbehavior. Although in the opinion
OF the Court. the said repeating Act in
depriving the plaintiff of his said office is
an infraction of his right, and incompat-
ible with the principles OF Justice. and
does not accord with sound legislation"
Yet Notwithstanding the strong Ian
guage. the Court, in deciding the point
OF the validity OF the repeating Act OF
1901, says "The said office and right
to hold 1t being created by Act of Assem-
oily and not vested in the plaintiff by the
Constitution and there being no clause
or article IN the Bill of Rights or form of
Government prohibiting or restricting the
Legislature in passing the said repeating
Act, the Court are Of the opinion that
said Act is not void. I"
Judge Duvall one OF the sitting men,
bsrs OF the Court, concuired in the opin-
ION OF his brother judges. in each of the
points made, but dissented only to that
paragraph in the reasoning of the opin-
ion, which stated that the right OF the
plaintiff to the office was to be during
the continuance of the Act under which
he was commissioned, and that the Act
OF 1901 was an infraction of his right,
&C., (see page ISL of H. & ~ 1t
seems to me that the case of Wilmington
VS.. Polk fully and unanswerably disposes
OF the case now before the Court.
| will add that if the Court entertained
doubt In the matter it should not in
terfere and pronounce a law unconstitu-
tional
1t cannot do SO without assuming
(when it does not clearly appearl that
the Constitution has been violated. This
is an undoubted rule, and requires no
authority to support it.
The Court sustains the demurrer to the
respondents answer and will direct the
writ OF mandamus to issue as prayed.
(Signed) JAMES REvELL.
Dec. 80, 1901.