Year: 1860

of 1857 is charged with the entire class of police
duties any additional and temporary police which the
Mayor and City Council might create under the power
granted by the 10th section, would be limited to the pre-
servaton of the public peace If the Mayor and City
Council were involved in controversy in reference to
heir right 10 create the police force in existence and
in special plea justification derived their right raise
this force from the 18th section Of the 4h article it is
clear that the Court would be obliged pronounce plea
Of that description defective 1t follows therefore, that
as the act of 1855 ch 49, under which the existing police
for whose the police apparatus prepared, is
peled the police force must disappear at the period
designated by this BILL and the police apparatus which
was provided for its accommodation be transferred
for the purposes of that force which supplies its place 1t
is only necessary in concluding this opinion this part
Of the to say that as the question whether the ex
lsng police force created under the 10Th section of
the 4th article, or under the oflS53 &C. ques
this subject, is not conceded by the demurrer


The 18th sec OF the Bill presents the question as to
the authority of the Legislature to confer upon the Com
missoners the of raising the money necessary for
the execution of the duta imposed upon them without
which of course, the Board would be inefficient pow
erless.


That portion of the 18th section which confers on the
Commissioners the authority to estimate what of
duties imposed on them and the obligation of the Mayor
and City Council to raise by assessment and levy
the assessabe property in the city the estimated by
the Board, is not obnoxious to any valid objection as
question of power. But the Commissioners author
lied to issue certificates of Indebtedness in the of
the Mayor and City Council in the manner upon the
terms and for the purposes indicated by the bill upon
the contingency of the Mayor, Register Comptroller,
other proper disbursing officer falling to comply with the
acquisitions of the Board and the validity this power
has been contested and defended with great ability by
the respective counsel The counsel for the resnondent
contends that these certificates be considered
bills of credit and therefore within the prohibition of the
10th section of the 1st article of the Constitution the
United States The argument assumes and correctly
sumes, that these certificates though issued by the
Board to be treated issued by the State; but
it necessarily comedies the proposition, when
the taxing power or any other power is exerted by
nicipa agent Of the State, the to be regarded
as the act OF the state exercised through the nstrumen
taty OF its agent The power emanates from the State
and the State of course regulate the in which
the power is to be used The of the Mayor and City
Council u.s. The Railroad Company, Gill; 2Ss, establish
n the a1 a o hat the Sae declare what the city
bls oil credit the faith of the State is not pledged for
their redemption, which is essential definition of
bill of credt-Craig State of Missouri Pet, 41O;
Brscoe u.s. Bank OF Kentucky II Pet 257 The exercise
OF this power not in conflict with the Constitution of
the General Government and not aware of any re-
srcton upon the taxing power of the State except such
is to be found in the Constitution the United States
in the 18th article of Bill of Rights Any mower
which the State can exercise directly, it may exert
through the nsrumentality of its municipal agent and
the authority to use the power includes the right de-
termne the mode in which the power be employ
ed. And if the Legislature chooses to select two
agents, as has been done in this case, for the
execution of her acknowledged powers, with
in the limits of any of her municipalities is diff
cult to perceive why she cannot authorize of those
agents to use the name and power of the other The
right to this authority stands the proposition that
the whole taxing power of the municipaity is at the
command and under the of the State But even
if the authority the Commissioners
these certificates them the way prescribed by
the bill could be considered not within the competency
of the Legislature do not think it would inyaae the
Act Nd. Rep. 16l; Gray, lO1. 1t is contingent
power, to be used only upon contingency that may
never occur The probabilities all against the hap
pening of an event upon which alone this power would
be called into existence If this act should be declared
to oe unconstitutional by the Court of deTnier resort the
authority of the Board is terminated if its validi-
y should be established the presumption is that the city
authorities weud yield to the acquisitions of of
the State, which would then be as the acknow-
lodged law of the land.


II follows from the views thus expressed that think
entitled n g
claimed in their petition; and in stating my opinion in re
aion the two ohec that have been raised AGAINST
the Bill interfering with the power Of the Governor
the militia and invading the rights and prvi-
eges OF the Sheriff. do these questions have been
eaboraey argued and because the counsel for the Re
spondents seem to consider that the parts of the Bill
nected with those objections severed from its
man provisions and if they are unauthorized the whole
bill is invalidated.


BY Section the ID article of the Constitution
it is declared that the Governor shall be Commander in
Chief OF the land and naval forces Of the State and may
call out the militia to repel nvasions suppress fnsurrec


ons and enforce the execution of the laws but
take the command in person without consent Of the
stature and the question s,whether the power
out the militia for any of the purposes mentioned in this
section Of the Constitution is to be considered as vcn
sively vested in the Governor I think not


The proposition that the power is be regarded as
vested exclusively in the Governor ascribes those
who framed the Constitution and to the people who
adopted it, want of sagacy not be attributed to
them. Suppose serve insurrection, in opera.
uon or threatened, Martin Mott II Wheat 10 or
railroad riot, formidable require the aid of the
military arm for its prevention suppression, in
Governor
OF government or at some distant place. it to be
posed that the Legislature have authority provide
for such an emergency by vesng in of the trbu
nails OF the State, in of the local authorities
its municipal agents the power of meeting
gency, by calling forth the militia? If So the counties
and the city Baltimore might left in a most de
fencees condition The Constitution of 776 empowered
the Governor by and with the advice consent of the
Council to embody the militia and when embodied thew
were placed under his command. The Constitution
1886 conferred the the Governor the Coun
Gil having been abolished and under those Constitutions
arpfra tl,


me IN the Courts and local authorities and
that this legitimate exercise of Legislative author
ty has never been denied questioned-Act Assem-
ply. 1928 ch. 1S8 sec. 20.


That this power as well as all the other powers vested
in this Board will be dscreety exercised we have those
guarantees which exist in reference to the faithful per
formance of official duties by political agents And
if power was to be defeated the ground that it
might be abused by those to whom it entrusted the
objection would be fatal to all power.


The objection raised to that portion of the bill which
vests in the Commissioners the right require serv
of the Shorthand directs him upon their order sum-
the posse cOmitaS and places the Sheriff and that
force under the direction of the Board cannot think be
maintained.


The Sheriff is Constitutional officer but his duties as


conservator of the peace not defined by the Cons
tuition. Those duties are common law duties, and
described by the Supreme Court in the South Us
State of Nd in Is How 400. 1t is there said the
Sheriff. conservator of the peace Of his county baii
WICK Is the representative OF the King or sovereign
power of the State for that purpose He has the
the courts, and though forbidden by Magma Charta to
act as Justice of the Peace in trial of criminal cases. he
exercises all the authority of that officer where the pub
lie are concerned He may upon view, without writ or
process, commit to prison all persons who break the
peace or attempt to break it; = and for these
purposes he may command the posse comitdAS pow
of the county These are the common law duties of
such may be repealed modified by the Lcgisla-
ture at its will and pleasure This is done every
day l do not perceive in what way the private
rights privileges immunties Of the Sheriff are in
volved by this act and his official duties subject
the control of the Legislature In the of the People
Draper, 25 Barb, 1862 in speaking of the Sheriff. the


Court says At common law and at the time of the adop


ton Of this Constitution, in most il not in all the counties
the Sheriff was in some sense, head of the police, and
it was his special duty ITO preserve the peace. He
is an officer who is recognized by the Constitution, and
whose election IS there specially provided for; yet that
part of his duties could unquestonaby he taken from
him and be performed by Others by the Mayor of
city, or the head of police.


After careful and nxious examination of this case
have to the conclusion that the objections raised
against this Act and which have been pressed with great
ingenuity and ability, to be considered applying
only to the question of expediency with which the Court
has no concern, and not to the question fpower.


1t is ordered this 18th March 1860 the demurrer
the this be sustained and that the order
for andamus as prayed for by the reators in their
tton, is made absolute. r. n. MARTIN.


After the delivery of the above opinion, T. S.
Alexander, ESQ.,, one of the counsel for the Mayor
and City Council, arose and asked the Court to
suspend Judgment for two or three days. his col
leagues desired time to consult together-they
might perhaps conclude to amend their petition for
a manddmus.


The Court announced its willingness to accede to
the request of the counsel provided the other side
made no objection.


Reverdv johnson, Esq, one of the counsel for the
Commissioners, said they did object to any post
ponement in the matter-as to time, the counsel
had had six or seven weeks to consult together
upon every question raised; if more time was al
lowed them they might want to present an entire
new case to the Court.


Mr.. Alexander said, then he would not press the
request, but his colleagues would at once take an
appeal from the decision of the Court.


The appeal was afterwards fled signed by VIM.
Price and T. S. Alexander, Esqs.


Prom the Cincinnati Enquirer, March IL