Year: 1860

| the oihce.N


On behafof the respondents it is contended that tn
Governor under this section has the power fill all off
in this State whether created the Constitution
by the acts of Assembly, unless otherwise provided h
one or the oher The meaning of this very clear
if it is to be taken inconsistent with power in tn
Legislature to appoint to office created by it. if tn
mode OF such appointment be not provided for by
sttuton But f is to be understood asserting that
although the Legislature has the right to create offices no
forbidden by the Constitution yet has not the right
appointment to fill them but designate some other
thority to do So there is sufficient warran
in the Constitution for any such idea Apart the
PLAIN and unambiguous language of the Constitution
would be difficult to imagine what possible good cou
arise from such Introduction the power of appoint
ment in the Legislature whilst with it should be left TN
| power Of designating those by whom the appointing
power should be exerted In either the wou
besubstantiay and practically with the Legislature
one, it would be exercised directly, while in the other
would be by the designation of persons who would
ercise it by the appointment of those who might be pre-
viousy agreed upon But in truth the objection answer
itself What,in point of fact is the designation bod
or person to make appointments bat the appointment
such body person?


The view of the respondents unsustaned by auhori
y whilst the opposite of it is fully sustained not on
by the unequivocal language of the Constitution b
judicial decision and the practice the State ever snc
| the formation Of its government.


The section gives to the Governor the power OF appoint
| ment in all cases 'rcelt tic0.


1st Those officers whose appointment is otherwise pro
| vided for an the Constitution.


I'd. Those officers, the mode of whose appointment is
otherwise prescribed by the ldU creating the office


The obvious definition of the word preScriGcd as uset
in the section quoted is ordered The question then





the Board OF Police prescribed the mode of appointment
to it? 1t has done it in the simplest and most drec
manner by appointing the persons in the creating tn,
Offices and its authority for doing independently of al
other considerations, be drawn from the words in The
section following the word 'unieSS."


The Constitution of 1776 quite strong in its Ian
guage as the present adopted in the year 1851 The
section Of the Declaration of Rights declared tat the
legislative executive and judicial powers of govern
men ought to be forever separate from each
other and yet under it almost any number of acts
making appointments passed. constiutonaIity
OF which has never been denied and under which i'm
mense possessions are held and enjoyed independently
of the cypress authority conferred by the existing Con
stution the Legislature prescribe the mode of ap
pontment to any office 1t may create general princ
PIES where the is not distinctly by unavoidable
implication forbidden to it, it would possess it. The
legislative department nearest the power and
is maniestly the predominant branch Of the govern
ment' lCrane rs. Meginnis, Gill and Jonnson 472


1T sound political proposition that wherever heleg
isative power of government is adefned includes
the judicial and executive attributes per Patterson, J.,
Dallas, 10 "Plenary in the Legislature for all
purposes of civil governments the rule prohibition
to exercise particular power is exception In inqui-
ring, therefore, whether given statute is constitution
al 1t is for those who question its validity to show that
It is forbidden" THE People Draper Is New York
Rep, 543


There is nothing in all this in any wise in conflict with
the case of the State rel Attorney General Kennon
ct dt Ohio, New Seres,) 547 There the obnoxious
act was palpaby in opposition to the plain words
Constitution The Constitution of Ohio unlike in the
particular that of Maryland, expressly declares APP
pointing shall be exercised by the General
bly,, except prescribed in this its constitution and in
the election Of United States Senator" This language
is so plain as to admit of but Constructon-n
stance but those distinctly specified the General As
semby to exercise the power of appointment given
to the Legislature of this State to prescribe the
appointment by the law creating the Office. No two
things could be diSsimiar than are the Constitu
tons of Ohio and Maryland in this respect.


These observations sufficiently dispose of the obec
uons TO the mode OF appointment of the Commissioners
mentioned in the act.


The next exception to the be found in the 10Th
section of the 4th article of the Constitution which
making provision that the Legislature shall fix the num-
br of justices of the and constabIes ward
OF the city of Baltimore and for each election district
the several counties and declaring that they shall be- by
virtue of their offices, conServaors the peace in the
counties ana city OF baltimore respectively, the filling
OF vacancies occurring in their number and other things
concerning them, declares: "And the Mayor and City
Council Of Ba'timore may prOuide by ordinance, from
time to time for the creation and government of such tenn
porary additional police they mag deem necessary 10
ireScrce the public peace"


Now, it is manifest the power given to the Mayor and
City Council is to create and govern temporary addi
uoDa and not permanent police contradstinguished
from it Moreover the police which they authorized
to create is not only to be temporary in its Duration but
Is to be additional to something already in existence
whenever from time time it may be necessary to sum
mon it to preserve the public peacen


1t is difficult to understand how that which is declared
to be temporary and additional as per
manent original and independent The proposi tion in
wolves contradiction in itself and yet it must be
less the power be reserved TO the State provide per
manent police for the city of Baltimore


Weare to give commonsense Interpretation to the
ton of the trainers of the Constitution and that the
people who adopted it. We to presume they under
stood the existing condition of the law applicable as well
to this as to other subjects of public interest in regard to
which they to employ their judgments and express
their opinions This sentiment of Difference and justice
is not for the first time to be acknowledged See State
Us. Mace Nd 351; Manly State, Md 147 Duramus
as Harrison Whitman, 2G Ala 326 Bandell u.s. Isaac


In view of these decisions less than apparent
propety of the thing to that the cOnven
ton had knowledge of the fact that, under laws then
the statute book, police permanent in its character
in existence, and if so, that whilst it not
deprive the State of the power either to augment d
mnsh Its number it deemed but prudential and pro
per TO provide against sudden emergencies and outbreaks
of popular rage, by comforting the Mayor ard City
Council the power create te1nDOrnry and rd1fion1I
force for meeting the and repressng the
very language employed clearly denotes that the thing
be created was to be one of short uraton and
which, after having accomplished the purpose of its en-
rollment to be disbanded into the general body
the community from which taken for the preserva
ton 'o the peace suddenly threatened to be actually
disturbed Were this and had been inten-
ton of the Constitution to deprive the State of all power
IN the establishment of police in the city OF Baltimore
anu TO confer on the corPoraon nothing was easier of
accomplishment. But few words required to do
suitable to the expression OF the idea that to meet
cesSfnlly any unusual tax upon the energies of the
public authorities, to suppress tumults and like dis
turbanccs, they should have the faculty of invoking
the time an additional force, which, it was
to be employed in guarding against unusual
eXctements and in resistance to named and maddened
feeling like them its subsistence anticipated to be
but temporary The reasonabeness of the power its
justification 1t never could have been the purpose of
any considerable portion of the people the State to
deprive its government of the capacity of fulfilling
of its primary and most important obligations to its citi





Smith, 5s4 "as political society, the State has
terest in the repression of disorder and the mante-
nance OF peace and security in every LOCALITY within its
limits; and from exceptional the public good
qures that legislation either permanent temporary
be directed towards particular locality, whether
sshng OF one county or of several counties it is within
the discretion of the Legislature to apply such legislation
as in its Judgment the exgency of the may require
and ii is the sole Judge the existence of such cause


1T follows that it belongs to the Legislature to
arrange and distribute the administrative functions com
mtting such portions as it NAV deem suitable to local in
tn ha
by officers appointed by the central power and changing
the arrangement from time to time, convenience the
efficiency of administration and the public good may
to require If particular act of legislation does


ct with Of the limitations restrainsts which have
been referred to- is not in the power of the Courts to
arrest its execution however uuwise its provisions
ne or whatever the motives may have been which led
its enactment" "If a given act of legislation
is not forbidden by express words necessary impca
cation, the judges cannot listen to suggestion that the
professed motives are not the real ones'


In answer to this 1t is urged, the Constitution itself
points out the police to which that existing in the city
Baltimore is TO be considered additional that this DO
ice consists of the justices Of the peace and constabes of
the respective wards who declared by virtue of their
Offices conservators of the peace This view cannot be
upheld, if it be recolected that the very time the
clause referred to was with the rest of the Constitution
adopted there was police force in operation other than
justices of the peace and consabes, organized and
ported by the authority conferred upon the Mayor and
City Council of Baltimore by the act of the Legislature
1872 chapter 1914 which continued in by the
3rd article of the Declaration Rights was to that
police any which the Legislature might establish
in augmentation lieu of it, to which temporary ad
dtonal police was to be subjoned and made appendant
The mere fact of the 10th section of the article
cang what would be equally true in the absence of any
declaration on the subject that justices of the peace and
constabes conservaors of the peace not perceived
as aodps any aid to the theory that they the
tempated permanent police Neither their numbers nor
the daily calls upon their time strictly udpes and
ecuve officers for the service of process justify the opin
Ion they were looked to adequate performance
all the ordinary police duties of SO large city
as Baltimore. As far back 1872 experience had
demonstrated that force of one hundred men
of
population, and the occurrences subsequently that
time, could furnish for dminutiOn the
ber OF the police, and made The justices and
constabes were proclaimed the judges,
Yators OF the 1t needless declaration and
doubtless made only from abundant caution. That
city was that authorized by the act Of 1872 is apparent
from the passage of the act of 1853 chapter 46 entitled
ian act to provide for the better security of life and
property in the city of Baltimore by increasing and
ing the police thereof 1t repealed the 1872 ch
1914 which limited the appointment of city bailifs to the
number Of one hundred and at the left
the number to the unrestricted discretion the Mayor
and City Council authorized the armine Of the police
Under this act of 1858 the city acted time
increased the number of the police beyond hundred
and gave them arms. No disputed the constitution
ality of that act; and inasmuch the ConsuouSias
undergone change since its passage impossible to
the Legislature of 1858 is denied 1860 When
the number Of the force existing at the time of the adop
hon OF the Constitution is considered
the act of 1852 chapter ga which assigned the whole
city of Baltimore twenty four justices and
stables sXty-eght in all, and Hirtt,Co less than the
number Of tie police force under the act of 1872 il is next
TO impossible to believe that it intended these Justices
and constables should constitute the permanent police
body Of Baltimore.


On the whole then ii is but fair to assume that the
purpose of the 10Th section of the 4h article the Con
stitution in its reference to Justices Peace and
COnstables far the city OF Baltimore specially
concerned, merely provide an adeuuate mum