Mayor of Baltimore v. State ex rel. Board of Police

15 Md. 376 | Md. | 1860

Lead Opinion

Tuck, J.,

delivered the opinion of this court:

Whether the present case possesses an unusual degree of importance, in view of the circumstances which, it is said, rendered necessary the passage of the law uuder review, or of the supposed difficulties which may attend its practical operation, if the judgment below be affirmed, is a question with which the court lias no concern. It involves considerations of expediency and public policy of which the Legislature was the exclusive ju.dge, and which, we must assume, were fully weighed and determined when the Act was passed.

In another aspect, however, its consequence has not been undervalued by the counsel, nor overlooked by the court, while calmly considering the arguments adduced in support of their respective views of the- Constitution and theory of government under which we live. When this department is called upon to review the acts of a co-ordinate branch of the government — the members of both having entered upon the discharge of official duties under the same solemn sanctions, and with a like sense of responsibility — we cannot fail to realize that the matter is of the gravest character, and demands our most careful and dispassionate consideration. In such cases there is no conflict between the Legislature and the. Judiciary; ou the contrary, it is to prevent strife and possible collision among those on whom the legislation is to operate, that we arc made the final arbiter between them; the-spirit of our institutions, inculcating and exacting obedience to the laws as announced b.y the appropriate tribunals. And although, when the court is satisfied that the Legislature has exceeded its authority, we would no more falter in denouncing the Act as void, than we should hesitate in deciding the most unimportant matter within our jurisdiction, yet, in cases of doubt on the question of power, it would be improper-to interfere. We could not do so without assuming (when it did not clearly appear) that the Constitution had been vio.iated, which should not be predicated of another department in the discharge of functions peculiarly its own, as the lawmaking p.ower. This, is the settled doctrine in this State, and, as far as we. are. informed, in every case in which the question has been considered. Regents vs. Williams, 9 G. & J., 365. State, use of Washington County vs. Balto. & Ohio Rail Road Co., 12 G. & J., 399.

The Mayor and City Council of Baltimore, a public corporation, charged with extensive5 franchises for municipal purposes, had, for many years prior to the adoption of the present Constitution, an organized police force for the protection of the city, which had been, from time to time, increased in number, and the regulation thereof changed as the wants of the people seemed to require. It is not necessary to specify these changes, or refer to the Acts of Assembly authorizing them; let it suffice that the validity of the laws was never questioned, nor the ordinances of the city, on that behalf, considered as beyond the limits of its charter. Whatever may now be thought of the effect of the Constitution upon the charter-privileges of the corporation, it is not to be doubted that the Legislature considered the city as remaining subordinate to the power of the State, according to the general doctrines applicable to public corporations, (9 G. & J., 397, 401; 9 Cranch, 52; 12 G. & J., 439, 440,) for at the session of 1853, ch. 46, the Legislature passed “An Act to provide for the better security of life and property in the city of Baltimore, by increasing and arming the police force thereof,” whereby the Mayor and City Councils were authorized to increase and strengthen the police, to arm and pay them, and to indemnify them, when injured in the performance of their duty; and we find that, in 1856, an Ordinance was passed, “To establish a police for the city of Baltimore,” which was approved 1st of January 1857, and afterwards again approved among the Revised Ordinances of 1858, (No. 30.) This Ordinance having abolished the old police system, the one therein prescribed took effect on the 1st of March 1857, and remained in operation until the session of 1860, when the Legislature passed the Act now under consideration, whereby all former laws and ordinances in relation to the police of the city were repealed, and a different system established, the details of which are set forth in the law, and to carry them out Commissioners were named in the Act, and every power deemed to be necessary to that end conferred upon,'them. This law deprives the city authorities of all control over, or interference with, the police of the city, except as provided by the 19th sec. of the 4th Art. of the Constitution, and they, having denied the validity of the law, and refused compliance with its terms for the purpose of having that question determined, the duty devolves on us of deciding whether it is a legitimate exercise Of legislative power.

At the very threshold the relators -are met with the objection that the law is radically void, because the Legislature Uliad no power to appoint the Commissioners in the Act. It is plain that this point, if well taken, strikes down the law ■at one blow, because, if not validly appointed, they cannot proceed to put it in force, and all other instrumentalities must fail. But if the Legislature had power to make the appointment, we cannot say that it ought not to have been exercised, any more than we could, with propriety, pass upon the correctnef's of its judgment in selecting these officers. It is a mere'question of legislative power, and as such, alone, can we treat it.

It is contended that, the power of appointment being all intrinsic executive function, the naming of the Commissioners in the law was in violation of the 6th Art. of the Declaration of Rights, “That 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.”

V We are not prepared to admit that the power of appointment to office is a function-intrinsically executive, in the sense in which we understand the position to have been taken; namely, that it is inherent in, and necessarily belongs to, the executive department. Under some forms of government it may be so regarded, but the reason does not apply to our system of checks and balances in the distribution of powers, where the people are the source and fountain of government, exerting their will after the manner, and by instrumentalities, specially provided -in the Constitution. The case cited, (3 J. J. Marshall, 401,) affirms that it is intrinsically executive; but the judge explains that Úic-nature 'of the power is executive, whether exercised by the Governor, or a court, as distinguished from those acts of the court that are merely judicial. But it is no where intimated that another department, than the executive, cannot exercise the power. On the contrary the case was disposed of on the ground, that the court had the power to appoint the clerk, and that its judgment could not be interfered with, by way of appeal from the order of appointment. And, indeed, here it is admitted, that the executive cannot act where other modes of appointment are prescribed by the 'Constitution. It is trae 'that, certain powers are peculiar to each department, as their designations import (2 Md. Rep., 452) the Legislature makes the laws, the Judiciary expounds them, and the Governcfc sees that they are faithfully executed; but even in this duty he is restrained in some degree, because they-must be enforced according to the Constitution and laws, and -not at his will and discretion. It does not follow, -as a necessary conclusion, that, in order to perform this duty, he must have agents of his own nomination. Our form ©f government, in its Various changes, has never recognized this power as an executive prerogative. Unthe Constitution of 1776, although appointments were generally made by the Governor and Council, some of the most important were not. Registers of Wills were commissioned by the Governor, on the joint recommendation of the Senate and House of Delegates, the power of the Governor and Council to make an appointment being limited to vacancies during the recess of the Legislature', and then to continue only until its next meeting. -So -the clerks of courts were appointed by the judges, the power of the executive being restricted to cases of vacancy, and until the meeting of the court. This, however, was changed by the amended Constitution of 1836, which conferred the power of appointment on the Governor — b}^ the advice and consent of the Senate, a branch of the Legislature, yet pro hac vice discharging executive duties. If we look to the present Constitution we find a similar state of things. The clerks and registers arid other officers are elected by the people, but, when vacancies occur, the office is hot in all cases', though in some, filled by the executive'. In such emergency, the clerks and State’s attorneys are appointed by the court; ‘the Register of Wills by the Orphans courts; constables by the county commissioners, &c:, &c.‘; and as to the clerk o’f the Court of Appeals, the executive '‘department has hó power whatever, the appointment residing with the judges. Under the old Constitution, the Treasurer arid Commissioner'of Loans were appointed by the House of Delegates, the Governor’s powef extending only to cases of vacancy, and under the present the Treasurer as well as the Librarian receive their appointments from the Legislature. These instances are sufficient to show that the Constitution, so far from treating this as an inherent executive power, indicates that it belorigs where the people choose to place it.

But this Article is not to be interpreted as enjoining a complete separation between these several departments. Practically it has never been so in any of the States in whose fundamental law the principle has been asserted. There are numerous instances to show that it has not been so regarded in this State for our statute books contain, time and again, laws affording relief where the judiciary possessed ample jurisdiction over the subject-matter. How this kind of legislation came to be introduced, it is useless now to inquire. It was commenced soon after the adopdon of the Constitution, probably participated in by some óf the framers of that instrument, and has been continued ever since; and we know that valuable estates are now enjoyed upon no higher title than such Acts of Assembly, operating as judicial decrees. Instances of appointments by the Legislature are equally, if not more numerous. Many were cited in argument, and some of them in regard t;d matters of vital importance to the citizen, especially those relating tó the city of Baltimore. It may be, as suggested in 'argument, that the persons named in these laws tvere not regarded as officers, in the meaning of the Constitution; brit doés it follow that these Commissioners are within the class contemplated by the Cori'stitution? We do not mean to say that the Constitution, in its prohibitions^ operates only on offices known to the Constitution, and does hot extend to those created by law, though an opinion to that effect, by Phe of the most eminent jurists of his time, ( Wm. Pinckney,) is on file in, the State Department, and for many years furnished authority for appointments that seemed to have been prohibited by the Constitution. We allude to this ^legislation as evidence of cotemporaneous construction, and acquiescence by the people, and the various departments of the government, in such practical interpretation. For the effect of such continued practice, see Burgess vs. Pue, 2 Gill, 11; State vs. Mayhew, 2 Gill, 487. It is true that it, Ivas intimated, rather than decided, in 9 G. & J., 416, that an unconstitutional Act of Assembly, affecting a private corporation, cannot be made valid by acquiescence in it; but the same court had held in Shafer vs. Stonebraker, 4 G. & J., 345, that the practice of sustaining special demurrers had en-grafted upon the Act of 1763, ch. 23, an interpretation that nothing but an Act of Assembly could change. The same doctrine was announced in M’Colloch vs. The State, 4 Wheat., 316. See, also, Bradford vs. Jones, 1 Md. Rep., 351, that the Constitution may receive an interpretation from a long, constant, and uniform legislative practice. There are also instances in which the common opinion of the profession, and the forms and course of judicial procedure have been regarded as safe guides in the adjudication of points of law; see 5 Md. Rep., 271. 6 Md. Rep., 317. 7 Md. Rep., 442. 1 G. & J., 231; and 2 G. & J., 285. Is it not as important, that the interpretation of the fundamental law should be as uniform and certain as that of legislative enactments? In both, the intent of the authors is the point to be arrived at, and the same rules and means of ascertaining it may be resorted to. If such considerations do not establish the right of the Legislature to make appointments of this kind, they are well calculated to raise very serious doubts on the subject, in which state of the judicial mind the law must bo left to operate, until changed by the proper branch of government. In considering the question as to the separation of the departments, we are to bear in mind that the Declaration of Rights is not to be construed by itself, according to its literal meaning; it and the Constitution compose our form of government, and they must be interpreted as- one instrument. 1 G. & J., 472. The former announces principles on which, the government, about to be established, will be based. If they differ, the Constitution must be taken as a limitation or qualification of the general principle previously declared, according to the subject and the language employed. In our government there are several instances of this kind, in reference to this 6th Article. The Constitution of 1776, contained the first portion of the Article in our present Constitution, yet it devolved on the Legislature the election of the Governor and Council, and on the Executive the appointment of judges, and, in certain contingencies, of officers connected with the judiciary. It also provides for the appointment of other officers, and, accordingly, judges of the orphans court, from 1798 to 1851, were appointed by the Executive. So, also, that instrument, as does the present Constitution, invested the Legislature with quasi judicial functions, in exercising the power of impeachment and punishment, as therein provided. A similar departure is observable in the union of the Senate and the Governor, in making appointments to office. It is obvious that dangerous combinations might be formed between these branches of government, yet such a possibility did not outweigh the necessity of providing checks upon the improper exercise of the appointing power if left in the hands of the Governor alone. Hence a portion of the Legislature was made, as it were, a part of the executive power in the State.

The words of the Article appear to be plain enough, but they have not been accepted in their literal sense. As we have said before, entire practical separation was not designed; without recourse to cotemporaneous writers of high authority, we may content ourselves with the exposition of the Court of Appeals in Crane vs. Meginnis, 1 G. & J., 476, to the effect, that it was designed to ingraft this principle on our system, “only as far as comported with free government,” as “an inhibition upon the exercise by one department of powers conferred on any other by the Constitution; restraining each branch within its appropriate sphere, by forbidding to it the use of powers allotted to the co-ordinate departments.” In that case a portion of the law was declared void, as an exercise of judicial power ip.its,pass„agp. if theppyrnr exercised by the Legislature, in the case at bar, had been conferred on any othpr. branch of government, a like resqlfc would follow; but if the power is,given to the Legislature, it may be exercised notwithstanding the 6th Article of the Deg, laration of Rights; which brings us to consider the 11th sec. of jjie, 2nd Article of the Constitution,

On this Article the relators insist, that it authorizes the ap,-, pointment by the Legislature, because it confers on the exe-. cutive the appointment of all officers,piot otherwise provided for, “unless a different mode of '¡appointment be prescribed by the law creating lire office,” and that, as the law in ques-. tion creates the office, the designation" of the Commissioners in the Act is within the intent and meaning of the Constitution; to which it is answered on the part of the respondents, that this section, gives the Legislature, in creating an office, power only to prescribe the mode of appointment, and can by no legitimate rjile of construction be interpreted to grant the power of legislative appointment. It is .conceded that the Legislature was not under any obligation to confer the power of appointment on the executive; by this clause of the Constitution.the power was placed there, in the event of a different mode not being prescribed in the Iajy. But? it is, said,pt ought to. have been delegated to the people or loqal. authoriti'es’of the city of Baltimore. In the absence of, any such requirement of the Legislature, we do not perceive that they were under a duty to make such delegation of the appointing power. The Constitution surely designed to repose some discretion in the Legislature, both over the mode of appointment, and’ t!ie propriety and necessity of passing any law on the subject to which the exercise of the power might relate. It seems difficult to suppose that the people, through. the Constitution, would entrust to that branch of government, nearest to the source or'- power, the right, to create an office, and to indicate others to appoint the officers, and be unwilling to place the appointment with the Legislature itself. The Constitution must, receive an interpretation according to the sense in which the people are supposed to have understood its language; but it ought, also, to be construed with reference to the previous legislation of the State. 2 G. & .J., 285. And when such power had been exercised by the Legislature, from the earliest period of the government, is it unreasonable to suppose that the people were aware, that the same might opeur again unless prohibited by the Constitution? If there is no prohibition, express or implied, it would result, from,this view, that the people intended the Legislature should continue to exercise the power. We are not dealing with one -or a few words to extract what tbe instrument means; we look to the whole, its provisions, grants, restrictions, objects .a,nd purposes, and endeavor, from the whole, to give it such' effect as we think the framers and the people designed. We are not to be. considered as advocating the exercise of such powers; in exciting party times it might effect much mischief; but not more than the mere passage of laws, where the Legislature and executive are of the same political complexion. Yet no one doubts the power of the Legislature to enact laws, when it is believed that mere political purposes are to be accomplished. In such cases, however the people may complain, they submit until a change of the Legislature can be effected'in the constitutional mode. Hence we see that while the motives of the Legislature can have no effect upon the efficiency of the laws, neither can they be regarded b.y the judiciary when testing their power to pass them.

We have considered this point at some length, because it was greatly pressed by counsel, although we think that the objection is fully met by the case of Davis vs. State, 7 Md. Rep., 151, on which the learned judge below founded his decision of it.

Pursuing the arrangement suggested by the brief of the appellants, we are ngxt to consider the effect of the fourteenth. section of the law, which transfers the existing police force of the city from the city government to the Commissioners. This is said to be unconstitutional, and, if so, the objection defeats the law. The arguments submitted on this part of the case are of the gravest character. The appellants claim for the city a dignity far higher than belongs to any other portion of tire community; a character that raises it above the power of the State, except such as is reserved by the Constitution itself; and that the charter is a constitutional charter, placed beyond the reach of mere legislative power, either to repeal it, or to annul or destroy its important franchises.

That the city has certain rights, under the Constitution, none will deny, but so have the counties. Each is a public territorial division of the State, established for public political purposes connected with the administration of the government, possessing the character, and endowed with the powers of, corporations, according to the laws severally applicable to them. 12 G. & J., 399. They are mere instruments of government, appointed to aid in the administration of public affairs, and are parts of the State. As public corporations, they are to be governed according to the laws of the land, and are subject to the control of the Legislature. Regents’ Case, 9 Gill & Johns., 397, 401. 12 G. & J., 439. This is the unquestioned doctrine on the subject, apart from the supposed effect of the Constitution on this particular charter. We have no idea that the Convention, or the people, designed to clothe the city with the immunities now claimed for it. That they would have placed a large city, with a population equal to nearly one-half the State, beyond the operation of its laws, and above the power of the people themselves, in the exercise of their sovereign right to govern the State, is not to be believed, and unless it plainly appears that such an imperiuni in imperio is created by the Constitution, the pretension ought not to be allowed. The considerations that suggest themselves in opposition to it, are so obvious,'that they need not be dwelt upon. Nor do we believe that the exemption has ever before been claimed. The city was chartered by the Act of 1796, ch. 68, with powers fully equal to the wants of the people, as was supposed at the time. Its police powers are set forth in the ninth section. The next year, (1797, ch. 54,) a supplement was passed, giving additional powers, and declaring that the original charter and that supplement should be perpetual, and that all ordinances passed, or to be passed, should be valid. To be sure, this was not a constitutional recognition ox the city, but, as far as oue Legislature could bind its successors, all power over the corporation was parted with. But we know that numerous Acts were passed afterwards, materially affecting the rights and powers of the corporation; some at the instance of the people, but others without such application, as far as the Acts themselves afford any information as to the motive of their passage. As a signal instance, we may notice the Act of 1817, ch. 148, “relating to the city of Baltimore,” wherein, in addition to important provisions concerning the government of the city, and the powers of the Mayor and City Council, and although they had ample jurisdiction over the subject of streets-, Commissioners were appointed, byname in the law, to survey and lay off the city into such streets, lanes and alleys, as they might deem expedient, with poWer, also, to select and purchase property for public purposes, the city authorities having no voice in the matter, except as to the reasonableness of the price, and all expenses contracted by them were to be paid by the city. And although the city charter was recognized by the amended Constitution of 1836, as fully; in our opinion, as under the present, (we speak apart from the 19th sec. of the 4th Art.,) with all the powers before possessed by the corporate authorities, it was deemed necessary, or advisable, to obtain, by the Act of 1838, ch. 208, authority to increase the annual levy to $350,000, and, by ch. 226 of the same session, further power in reference to streets. And, on examination of the laws, it will appear that most of the subjects over which jurisdiction is now given to the Commissioners by the Act of 1860, were legislated upon by the State, or by the Mayor and City Councils under authority of the State Legislature. During the time elapsed since the adoption of the present Constitution, similar powers have been frequently exercised. It is unreasonable, in the nature of things, that a portion or political division of a State should be above the power of the whole, and we cannot find in the Constitution any warrant for the opinion that the people intended to give to Baltimore City such pre-eminence'.

If there be any inherent rights or franchises unde* the charter of the city, we think they need not be passed upon now, because they are not assailed or proposed to be taken away by the law in question. The object is to regulate the police affairs of the city, not to destroy its franchises-; to place these matters in other hands, whereby the duty of governing, always residing in the Suite', is to be discharged by means of other agencies than those heretofore employed. Ascribing to the Legislature the motives with which all laws 'óf this kind are supposed to be passed, we must assume that the object is to accomplish, for the good of the citizens of Baltimore, that, in respect to which, previous legislation had failed “óf adequate results.

The third point on the brief relates to the 12th section, Which transfers the use of the Fire Alarm Telegraph, station houses, &c., to the Commissioners.

We are of‘opinion that the argument'on this bi'anch of the case was based on the inaccurate idea; that this is private property within the meaning of the Constitution. There is no 'doubt that taking private property is beyond the scope of legislative authority, except vVhen required for public use, and updn jfist compensation being made. But does this property •come within such description ? Let us test this by the very exception stated in the argument. If private, the State may take it for public use, on making compensation. But to whom is the compensation to be made? Not to the Mayor and City Council, as individuals; but to them as representing the people. And how made? By a tax levied upon the people themselves. That is, the people are to be taxed to buy property from themselves, for which they have already been taxed and have paid. City property may be taken for public purposes other than the uses of the city; that is, we suppose, that property owned by the city might be condemned, in tome'instances, as any other property; but then the use would pass from the city into other hands, from whom the payment or'Compensation would be made to the city as recent owner; but-this doctrine cannot apply where the design is merely to take city property dedicated to particular uses, and apply the same property to the same purposes, by only changing the agency by which the use is to be directed. The use is the same, and the 'character of the property is not changed, nor the title, because, no matter by whom mauaged, it remains public) devoted to public use, and all the while belongs, not to the Commissioners, hut to the city.

The 4th, 5th and 6th points relate to the 19th sec. of the 4th Art. of the Constitution. The solution of the questions arising on them depends on whether the police which the city authorities arc empowered to create, is to be additional to tile conservators of the peace, mentioned in the section — that is, the justices of the peace and constables — or to the general police system then in operation, and such as might thereafter be established by law.

This section, whether considered alone or together with other portions of the Constitution which appear to have reference to the same subject, is by no means free from difficulty. Urged as they were, either theory appeared to be so well supported by argument and illustration, as almost to challenge our acceptance; but, on carefully considering tile subject in all the phases in which it was presented, we have arrived at the conclusion that the respondents’ construction ought not to prevail, as well for reasons affecting and vital to the supreme power in the State, as on account of the city of Baltimore, in emergencies where her citizens might suffer more from the want of powei in the State authorities, than from possible abuse in the exercise of it. If the case were clear upon the words of the Constitution, or by necessary implication, we could not give weight to such considerations, but on a question where the human reason may pause and the judgment be suspended, on account of uncertainty in the language employed, ihey ought not to be overlooked.

If, is a matter of ■'■erv serious doubt with us whether, if the respondents5 view be adopted, the city of Baltimore could have any other than a peace-police, as distinguished from such other police regulations as are conferred on the Commissioners. It is not made the duty, nor is it within the nature of his office, that a justice of the peace, or constable, should perform police duty, other than such as looks to the preservation of the peace. They have no jurisdiction over most of the subjects mentioned in the fifth section of this law, of as much importance and as necessary to the well being of the inhabitants of a large city, as any other we can imagine. If the police power is exhausted, if the whole ground is covered by this clause of the Constitution, to the exclusion of legislative power, we are at a loss to perceive where' the city will find authority to pass any police ordinances other than such as are merely temporary and additional to justices of the peace and constables, who, as wc have said, are merely-peace officers. But, by construing the power as remaining with the Legislature, it, or the the city authorities, may exercise these necessary functions of government for the benefit of the city, as' may be provided by law. We have the highest authority for saying, that the power to govern belongs to the people. {Dec. of Rights.) It is their duty to exercise it for the common good, and being under that obligation, it is not to be assumed-that they have impaired the means of performing the duty by parting with the power to any division of the body politic. 4 Peters, 514. 11 Peters, 547.

It is no valid objection to the existence of the power, that it is in some degree concurrent in another organization in the government, and that the exercise by both may lead to confusion and possible strife. How far the city may proceed under this clause of the Constitution, we will not decide in-anticipation. It will be quite time enough to determine the1 limits of power between the Commissioners and the city authorities, when the case is presented. But are we to assume,' that the people will not acquiesce in the proceedings of the Commissioners? They are not appointed to act for themselves, or for any portion of the citizens, adversely to the rest; on the contrary, their duties are to be performed for the good of flic whole. This must be predicated of all Jaws, and of the officers appointed to execute them. The present is a case between the State and the city, to determine the particular matters before us, and we must presume, that, when the question is settled, each will move in its allotted sphere in harmony with the other, else why is it made our duty to decide between them? The effects of the interpretation contended for, by the appellants, are further stated and considered by the Chief Justice in his opinion, and we need not pursue the point further, than to say, that the law, so far from designing any interference with the powers of the city, under this clause, in express terms recognizes its authority. Sec. 15.

The objection urged against the 15th section, under the 7th and 8fh points, we think, cannot be sustained. The power to levy taxes Is a sovereign power, and unless committed to some portion of the people, may always be exercised by tile I legislature. It is not to be considered as parted with by mere construction, and we have not been referred to any portion of the Constitution which divests it. Is it contended that the Legislature cannot lay a tax, without the consent of the particular people who are to pay it? 'We suppose not. When the Legislature provides for a tax, by any agency whatever, it is, in contemplation of the Constitution, the act of the people, and binding on all alike. Of such legislation it cannot be averred, that it is against the principles of free government. There may be such an exercise of the power that judges might not have voted for the law, but that does uót affect the right to pass it. Under the old system of levy courts, and tax commissioners, when appointed by the executive, it was never said that they had not power to make assessments and levy taxes. They were not elected by the people, nor accountable to them. They were appointed, under legislative authority, bythe executive, and the State exercised its supreme power of taxing the people through their agency. So here, the State chooses to substitute Commissioners in the place of the city authorities for the purpose of levying this iax, and we see no sufficient reason, for denouncing the law on that account. That such a power may be delegated, see Burgess vs. Pue, 2 Gill, 11.

It is not deemed necessary in the present case to decide, whether the fifteenth section authorizes the Commissioners to put the certificates of debt, that they may issue, in the market, and sell them under par, nor the effect of such disposal of them. When the question is presented under proper judicial proceedings, the courts can determine how far the clause in the Constitution, on the subject of usury, may affect the validity of the demand. Besides, if there be any thing in the objection, it might apply as well to other evidences of debt issued by the city, and we are not disposed to prejudge the matter in advance of the defence being taken by those who, alone, can interpose it, and in a particular form.

There is no injustice nor defect of law in authorizing them to be received inpayment of taxes. No person can be compelled to take them, and if taken and set-off against a claim for taxes, it will be only following a mode of payment heretofore practiced, when coupons were made receivable in payment of public taxes, to which no objection was ever raised.

The supposed improper interference with the duties of the sheriff, as urged against the 13th sec., would not vitiate the law, if the point were sustained; nor that in relatiop to the power of the Commissioners to call out the military authority pf the State. 1 G. & J., 463. The views presented in the. opinion of the Chief Justice, as well as that of the court below, show that these objections are not well taken.

That portion of the sixth section which relates to Black Republicans, &c., is obnoxious to the objection urged against it, if we are to consider that class of persons as proscribed on account of their political or religious opinions. But w:e canr not understand, officially, who are meant to be affected by the proviso, and, therefore, cannot express a judicial opinion on the question. As to the effect of the clause in the 16th sec., which disqualifies from holding any office under the Mayor, &c., such persons as shall forcibly resist the provisions pf the law, the judges are equally divided in opinion.

The argument as to the 19th section, concerned more the apparent harshness of the measure, than the power of the State to make these Commissioners part of the city authorities, for whose acts the hitter is made responsible. What we have said in reference to the former Commissioners of Tax and Levy courts, will apply here. The counties were ehargable as fully as now1 for the conduct of these local authorities, yet they were not of the people's own selection. They were appointed by the executive from among the citizens of the county, as these Commisaiouers are from among the citizens of Baltimore, and, if the State thinks it expedient to select such agents to execute municipal laws, there is no less ground for holding the people responsible than if they were otherwise appointed, whatever reasons might be urged against the execution of State authority in that way. if the argument should prevail, it woukf not defeat the law, and whether a party complaining of default on the part of the officers provided for by the law, can hold the city liable, may be better determined when such a demand shall be preferred.

Among the arguments against this Jaw, it was contended that, apart from the Constitution, its provisions are so arbitrary, and unjust, and subversive of liberty, that the court ought to declare it void; and in support of this view, reference was made to that part of the opinion in the Regents’ Case, 9 G. & J., 408, where it is said, that there is a fundamental principle of right and justice inherent in the’ nature and spirit of the social compact, that rises above and restrains the power of legislation, which the Legislature cannot pass without exceeding its rightful authority. We need not examine this principle, if we see that it can have no application to the case before us. The court were dealing with, the'rights of a private corporation; we are treating of a public municipal corporation, and with the limitation of the. principle as announced by the court, that it was designed to. protect the life, liberty and property of the citizen from violation in the unjust, exercise of legislative power, we are prepared to affirm that it asserts a very correct doctrine. But we do not understand that case as having applied the principle to the Legislature, when exercising its sovereignty over public charters granted for purposes of government.

The case has been most carefully, prepared and elaborately argued, indicating great zeal and sincerity on the part of counsel. We have as carefully and anxiously considered their arguments, a.nd the doctrines on which we supposed the case ought to be decided, and having here presented the convictions of our best judgment upon them, we conclude with the additional remark, that we are not to be considered as dissenting from the views of the court below, where they have not been specially referred to and adopted. Inasmuch as the cause is of great importance, we deemed it due to the occasion to enter more fully into the various questions argued before us, than, under other circumstances, we might have felt ourselves required to have done, and chiefly upon those points which are not as fully discussed in his opinion.

The result is, that the order granting the mandamus must be affirmed.

Order affirmed.

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Concurrence Opinion

Le Grand, O. J.,

delivered the following separate concuring opinion:

The questions which this court is called upon to decide on this appeal, grow out of a portion of the enactments of the Legislature at its last session, and particularly the Act generally known as the Baltimore Police Bill.

Alternately this Act has been criticised and defended at the bar, and always with zeal and ability, according to the peculiar views in regard to it, of the eminent counsel who have considered its provisions, and who. have pointed out, agreeably to their respective opinions, its repugnancy to, or harmony with, the language and spirit of the Constitution of the .State. If the consciousness of official obligation, and the intrinsic importance of the inquiries involved, did not demand it, the earnestness and the confidence in their solidity, with which the arguments of experienced and well-informed jurists have been addressed to this tribunal, would be sufficient to challenge all the patience of examination and dispassionate reflection of which it is capable.

The questions to be determined, if not novel in the history of our jurisprudence, are, nevertheless, of large magnitude. Apart from their purely legal nature, they are supposed to in-elude matters, the particular settlement of which will ascertain, in the future, the ascendency of some one of the divisions into which the people of the city of Baltimore are politically classified. It is not improbable that, to this circumstance, a considerable part of the interest with which the discussion has been invested, owes its origin.

The popular mind very naturally views a subject of this ■and the like character, in the same light as it would one to be passed upon by it at the polls in the exercise of the elective franchise, coloring the expression of its opinion with the complexion of the dogmas to which it has been accustomed to give its allegiance and support. And it requires neither an extensive experience or observation to satisfy any •one that, under the influence of such feelings, the citizen has hot been unfrequently found at one time sanctioning or opposing a particular measure, when, after it has been put in operation, his opinions have undergone a radical and thorough •change as to its propriety and usefulness. But, whatever may be with him the controlling impulse to action, in ahy particular case, with a judicial tribunal no such rule can be ■observed without a palpable departure from the obvious path of duty. With the convictions or prejudices of the community, however sincerely entertained, or worthy of respect, unless they be sustained by the law, which it is its sworn obligation to uphold, a court of justice cannot concern itself to give to them practical vitality and enforcement.

The Constitution and laws fix the boundaries ivithin which their ministers must act. All action outside is forbidden as1 usurpation, and, therefore, tyranny. In all governments, having any just pretensions to be considered free, limits are •established to authority, of whatever character it may be.- “ There can be no liberty,” says Montesquieu, “where the' legislative and executive powers are united in the same person or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers.” The meaning of this, says Mr. Madison, is not that “these departments ought to have no partial agency, or no contr'ol over the acts of each other,” but amounts to this: “That where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free Constitution are subverted.” But of this more hereafter. Suffice it for the present, that in the true sense of Montesquieu, in this, as in each of the other States of the confederacy, the powers of government have been parcelled out to bo exerted by separate and distinct departments. It is for the Legislature to'enact, the judiciary to expound, and the executive to enforce laws. Neither of the departments is absolutely sovereign in ail things, but is only so within its proper limits. According to the theory on which our State government is founded, the people are recognized as the source of all governmental power. They are, in this sense, the true and. only sovereigns. For their own good, they have authorized a body, chosen by themselves, to exercise, under certain prescribed limitations, the supreme power. This body is known, in common parlance, -as the Legislature, and, except in cases prohibited, either by the Constitution of the United States or that of the State, is as free and competent to act in the passage of binding and effective laws as would be the people themselves, if they were acting in their primary and sovereign capacity as a pure democracyj restrained only by their sense of justice and expediency.

The difference bétweeti our State government and a pure democracy, consists in this: In the latter, the people have the "power to do as they may please,- while in the former, their delegates' have the same scope of authority, save in so far as there be express or necessarily implied limitations on it. Without these limitations their power is absolute. This definition is nowhere denied by persons familiar with the nature of our political institutions, and has been affirmed by the courts of ’every State in the Union, whenever they have been called upóh to pronounce in regard to it. It would be a needless labor to enumerate the cases in which there has been a palpable recognition of it. It was distinctly recognized in thé very 'able ahd lucid argument addressed to this court by Mr: Alexander-, one of the counsel for the respondents, in the following apt language: “I agree-,” said he, “that in the absence of constitutional limitation-, the legislative power extends to all appropriatfe subjects of .'legislation; that the limitation is the exception-, and that lie Who Would insist upon the limitation-, must prove it. But it is not at Ml necessary that the limitation should be created by express Words; it may be made out by implication; resulting from -the grant of power to another department; and even by the -form in which power is granted to the Legislature.”

This being so; the quéstion then arises, whether there be anything in the law now under -review *«?hich is in conflict with the provisions of either the Constitution of the United States or of that of -the State of Maryland? And this question is purely oné as to the -power residing in the Legislature to pass it. It does not touch the expediency or utility of the enactment. These Were matters for the éxclusive decision of the Legislature; “The result 'of the deliberations of all collective bodies, must necessarily be a compound as well of the errors and prejudices; as of the good sense and Wisdom of the individuals of whom they are composed.” No. 85 of Federalist. And, “the degree in which a measure is necessary, can never be a test of the legal right to adopt it; that must be a matter of opinion, and can only be a test of expediency. The relation between the measure and the end; between the nature of the mean employed towards the execution of a power, and the object of that poWer, must be the criterion of constitutionality, not tire more or less of necessity of utility.” A “restrictive interpretation of the Word necessary, is also contrary to this sound maxim of construótion; namely-; that the powers contained in a Constitution of government, especially those which -concern the general administration of a country, its finances, trade, defence, &c.y ought to be -construed liberally in advancement of the public good: This rule does not depend on the particular form of government} or on the particular demarkation of the boundaries of its powers, but on the nature and objects of government itself.” Hmnilton’s opinion to President Washington, Feb. 23rdy 179 L.

These canons of interpretation have been received and acted upon with approbation by the courts of the several States, and by the Supreme Court of the United States.

If,- therefore, the Legislature had the constitutional power to pass the particular law in question, then it was with the Legislature, and with it alone, to determine whether or not there existed a necessity for its passage; its judgment in the matter being conclusive in regard to that fact.

If the Act be obnoxious to any objection which makes it the duty of this court to pronounce it inoperative, it must be so, because of a want of power in the Legislature to enact it. “What is a power but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a legislative power, but a power of making laws? What are the means to execute a legislative power, but laws ? What is the power of laying and collecting taxes, but a legislative power} or a power of making laws to lay and collect taxes? What are the proper means of executing such a power, but necessary and proper laws? ” No. 33, Federalist.

The object of the Act of last session is to provide a permanent police for the city of Baltimore, so as to ensure the protection of the rights, persons and property, of its inhabitants. Of the necessity for such a law, the courts are not to be the judges, and for the reasons we have given. But it is unmistakable that the character of the law, and the power to pass it, fall directly within the category of question and answer we have quoted. Adopting it as a just and proper standard, we can have no difficulty in deciding that both the law and power are, in their nature, strictly legislative, and that unless there be some express or necessarily implied inhibition against the one or the other, or both, to be found in the Constitution of the United States, or of the State of Maryland, the law must stand relieved from all judicial censure.

Such prohibitions, it is urged, are to be found. Those suggested will be examined in the order in which they were presented at the bar.

It is a well established principle of judicial construction, that before an Act of the Legislature ought to be declared unconstitutional, its repugnancy to the provisions or necessary implications of the Constitution, should be manifest and free from all reasonable doubt. If its character, in this regard, be questionable, then comity and a proper respect for a co-ordinate branch of the government, should determine the matter in favor of the action of the latter.

This doctrine has been uniformly held. It was remarked by Chief Justice Buchanan, in the case of the Regents of the University of Maryland, 9 Gill & Johnson, 383, that it had been said, “that a legislative Act should not be pronounced unconstitutional or invalid, in a doubtful case, nor should it, where the doubt is bona fide and well founded, and not the result of a disinclination to deny the authority of the Legislature, which all must feel, but none should yield to, in violation of a solemn duty. But where a judge is satisfied, upon full consideration, that an Act of the Legislature is contrary to the Constitution of the United States, the supreme law, which he is bound to obey, and which must prevail over any Act that comes in conflict, and cannot stand with it, or for any other reason invalid, he has no choice; and all that is left him, is honestly and fearlessly to do his duty; from the faithful discharge of which, however unpleasant the task, do- upright judge can shrink if he would. On the other hand, a judge should not suffer himself to be betrayed to pronounce an Act unconstitutional or invalid on insufficient grounds, by a morbid apprehension that a contrary decision might, be ascribed to the leant of a just and proper sense of judicial duty.” In the case of the State use of Washington county, vs. Baltimore & Ohio Railroad Co., 12 Gill & Johnson, 438, the court, whilst recognizing the obligation, under certain circumstances, to pronounce against the validity of an Act of the Legislature, says, that “ to declare an act of a coordinate department of the government an unwarrantable assumption or usurpation of power* because it is a violation of a constitutional prohibition, is an exercise of the judicial office of a grave and delicate nature, which never can be warranted but in a clear case.”

It has also been generally held, that contemporaneous interpretation furnishes reliable light as to the meaning of a clause otherwise involved in obscurity or doubt., “Cotenrporaneous expositions of doubtful provisions, in, all instruments, and particularly in legislative enactments and constitutional charters, are held to be legitimate and useful sources of construction . ’ ’ Opinion of the Justices of the Suprem e Judicial Court of Massachusetts,’ on questions submitted to their consideration, 3 Pick., 518; Kiersted and others vs. The State; 1 Gill & Johnson, 248; Hays vs. Richardson; 1 Gill & Johnson, 385.

It is essential these i;ules of interpretation, should be borne in mind, when a clause of our State Constitution is under consideration.

One of the objections urged to the Act — -and one, too, which goes to its entire existence — is,, that the appointment by the Legislature of the Commissioners named in it, is a Violation of the Constitution, not only because it is an usurpation of powers, which, in their nature,.are administrative or Executive, but is in conflict with the express language of the Constitution itself.

Both aspects of the objection may be viewed together. The political aphorism* that the several departments of the p-overnment ought forever to be kept separate and distinct, has been alluded, to. already in this opinion, and its meaning sought to be fixed in accordance with the apprehension had pf it by those who had the largest share in incorporating it in the forms of government of these States. That the explanation given is the true one, will be apparent from a consideration of the Constitutions of some of the States, and especially pf that of Maryland.

In the year 1782, the State of Georgia passed an Act inflicting penalties on, and confiscating, the estates of such persons as were therein declared guilty of treason; among these was one Cooper, who, in 1797, brought suit to recover the amount of a bond which he held of one Telfair, of Georgia. To his right of recovery the Act of 3 782 was pleaded as a bar. On the case being carried up to the Supreme Court of the United States, on the part of the plaintiff it was contended, that the Act of 1782 was unconstitutional, because it violated the first Article of the Constitution of Georgia, which was in these words: “The legislative, executive and judiciary departments shall be separate and distinct, so that neither exercise the powers belonging to the other.”

It was urged that the Act was one of banishment and confiscation j that it was not, in its nature, legislative, but judicial, and, as such, being passed by the Legislature, a violation of the Constitution of the State. Without a dissentient voice, the validity of the law was upheld, the judges delivering their opinions seriatim. A few extracts from thefee will affirm what has heretofore been observed in relation to the delicacy of declaring a law unconstitutional. Washington J., said: “The presumption, indeed, must always be in favor of the validity of laws, if the contrary is not clearly demonstratedand Patterson, J.: “It must be a clear and, unequivocal breach of the Constitution, not a doubtful and, argumentative implication. ’ ’

The 11th section of the second Article of the present Constitution of the State, is as follows:

“He (the Governor) shall nominate, and, by and with the-advice and consent of the Senate, appoint all civil and military officers of the State, whose appointment or election is notr herein provided for, unless a diferent mode of appointment be prescribed by the law creating the office. ”

On behalf of the respondents it is contended, that the Governor, under this section, has the power “to fill all offices in this State, whether created by the Constitution or by the Acts of Assembly, unless otherwise provided for by one or the other.” The meaning of this is not very clear, if it is to be taken as inconsistent with a power in the Legislature to appoint to an office created by it, if the mode of such appointment be not provided for by the Constitution. But if it is to be understood as asserting that, although the Legisla^ ture has the right to create offices not forbidden by the Constitution, yet it has hot the right, by appointment’,.to fill them,, but must designate some other authority or person to do so, there is no sufficient wanant in the Constitution-for any such idea. Apart from the plain and unambiguous language of the Constitution, it'would be difficult to imagine what possible good could arise from such an interdiction of the power of appointment in the Legislature, whilst with it should be left the power of designating those by whom the appointing power should be exerted. In either case the power would be substantially and practical ty with the Legislature; in the one, it would be exercised directly, while in the other, it would be by the designation of persons who would exercise it by the appointment of those who might be previously agreed upon. But, in truth, tire objection answers itself. What, in point of fact, is the designation of a body or person to make appointments, but the appointment of such body or person^

The view of the respondents is unsustained by authority, whilst the opposite of it is fully sustained, not only by the unequivocal language of the Constitution, but by judicial decision, and the practice of the State ever since the formation ‘of its government.

The section gives to the Governor the power of appointment in all cases except two:

1. Those officers whose appointment is otherwise provided for in the Constitution.

2. Those officers, the mode of whose appointment is otherwise prescribed by the law creating the office. The obvious definition of the word “prescribed, ” as used in the section quoted, is iCordered.”

The question then is, has the ulaw creating the office” of Commissioners of the Board of Police, prescribed the mode of appointment to it? It has done it in the simplest and most direct manner, by appointing the persons in the Act creating the office; and its authority for doing so, independently of all other considerations, can be drawn from the words in the section following the word uunless.”

The Constitution of 1776, was quite as strong in its language as the present, adopted in the year 1851. The sixth section of the Declaration of Rights declared: “That the •legislative, executive and judicial powers of government, ought, to be forever separate and distinct from eacli other,” and yet under it, almost any number of Acts, making appointments, were passed, the constitutionality of which has never been ■denied, and under which immense possessions are now held and enjoyed.

Independently of the express authority conferred by the existing Constitution on the Legislature, to prescribe the mode of appointment to any office it nitty create, on general principles, where the power is not distinctly, or by unavoidable implication, forbidden to ir, it would possess it. “The legislative department is nearest the source of power, and is manifestly the predominant branch of the government.” Crane vs. Meginnis, 1 Gill & Johnson, 472. “It is a sound political proposition, that wherever die legislative power of a government is undefined, it includes the judicial and executive attributes,” per Patterson, J., 4 Dallas, 19. “Plenary power in the Legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power, is an exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity to show that it is forbidden.” The People vs. Draper, 15 New York, 543.

There is nothing, in, ail this, in anywise in conflict with the case of The State, ex rel. Attorney General vs. Kennon, 7 Ohio, (New Series,) 547. There, the obnoxious Act was palpably in opposition to the plain words of the Constitution. The Constitution — unlike, in this particular, that of Maryland — expressly declares, “no appointing power shall be exercised by the General Assembly, except as prescribed in this (its) Constitution, and in the election of United States Senators.” This language is so plain as to admit of but one construction: in no instance, but those distinctly specified, was •the General Assembly to exercise the power of appointment. It is given to the Legislature of this Stale to prescribe the mode of appointment by the law creating the office. No two things could be more dissimilar than are the Constitutions of Ohio and Maryland, in this respect.

These observations sufficiently dispose of the objection to the mode of appointment of the Commissioners mentioned in the Act.

The next exception to the Act is founded on the 19th section of the 4th Article of the ‘Constitution, which, after making provision that the Legislature shall fix the number of justices of the peace, and constables, for each ward of the city of Baltimore, and for each election district in the several counties, and declaring that they shall be, by virtue of their offices, conservators of the peace in the counties and city of Baltimore, respectively, the filling of vacancies occurring in their number, and other things concerning them, declares: “And the Mayor and City Council may provide, by ordinance, from time to time, for the creation and, government of such temporary additional police, as •they may deem necessary to preserve the public peace.”'

Notv it is manifest, the power given to the Mayor and Dity Cfomacil is to create and govern a temporary additional, and not á permanent police, as contra-distinguished from it. Moreover, the police which they are 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 to time, it may be necessary to summon it “to preserve the public peace.”

■ It is difficult to understand how that which is declared to be but temporary and additional, can be considered as permanent, original and independent. The proposition involves a contradiction in itself3 and yet it must be so, unless the power be reserved to the State to provide a permanent police for the city of Baltimore.

We are to give a common sense interpretation to the action of the framers of the Constitution, and to that of the people who adopted it. We are to presume they understood the existing condition of the law, applicable, as well to this as to 'other Subjects of public interest, in regard to which they were to employ their judgments and express their opinions. This sentiment of deference and justice is not for the first time to be acknowledged. State vs. Mace, 5 Md. Rep., 351. Manly vs. State, 7 Md. Rep., 147. Duramus vs. Harrison & Whitman, 26 Ala., 326. Bandel vs. Isaac, 13 Md. Rep., 202.

In view of these decisions, no less than the apparent propriety of the thing, we are to assume that the Conv'entiofi had knowledge of the fact that, under laws then oh th'c statute book, a police, permanent in its character, was ih existence, -and if so, that whilst it was not meant -to deprive the State o'f the power either to augment or diminish its number, it was deemed but prudential and proper to provide against sudden emergencies and outbreaks of popular rage, by conferring on the Mayor and City Council the power to create a -temporcenj -and additional force, for meeting the one and repressing -the other. The very language employed clearly denotes, that the thing to be created was to be one of activity, of short duration, and which, after having accomplished the purpose of its enrolment, was to be disbanded into the general body of -the community from which it Was taken for the preservation “of the peace,” suddenly threatened to be, or actually disturbed-.

Were this not so, and had it been the intention of the Constitution to deprive the State of all power in the establishment of a police i.n the city of Baltimore, and to confer it on the corporation, nothing was easier of accomplishment. But a few words were required to do it-. But this not being its purpose, language was used suitable to the expression of the idea, that to meet successfully any unusual tax upon the energies of the public authorities, to suppress tumults and like disturbances, they should have the faculty of invoking, for the time, an additional force, which, as it was to be employed in guarding against unusual excitements and in resistance to inflamed and maddened feeling, like them its subsistence was anticipated to be but temporary. The reasonableness of the power is its jqsfification. It never could have been the purpose of any very considerable portion of the people of the Stale, to deprive its government of the capacity of fulfilling one of its primary and most important obligations to its citizens. And as was justly said iit The People vs. Draper, 1 Smith, 544, 545, “As a political society, the State has an interest in the repression of disorder; and the maintenance of peace and security in every locality Within its limits; and if,- from exceptional causes, the public' good requires that legislation, either permanent or temporary, be directed toward any particular locality, Whether consisting of one county or of several counties, it is Within the discretion of the Legislature to apply such legislation, as in its-judgment the exigency of the case may require, and it is the sole judge of the existence of such causes.” ® ® ® “It-follows that it belongs to the Legislature to arrange and distribute the administrative functions, committing such portions as it may deem suitable, to local jurisdictions, and retaining other portions- to be exercised by officers appointed by the central power, and changing the arrangement, from time to time, as convenience, the efficiency of administration and the public good, may seem to require. If a particular act of-legislation does not conflict with any of the limitations or restraints which have been referred to, it is not in the power of the courts to arrest its execution, however unwise its provi-sions may be, or whatever the motives may have been which led to its enactment.” * ® # “If a given act of legislation is not forbidden by express words, or by necessary implication, the judges cannot listen to a suggestion, that the professed motives are not the real ones.”

In answer to this it is urged the Constitution, itself, points' out the police to which that now existing in the city of Baltimore is to be considered as additionalj that this police consists of the justices of the peace and constables of the respective wards, who are declared, by virtue of their offices, conservators of the peace. This view cannot be upheld, if it be recollected that, at the very time the clause referred to' was, with the rest of the Constitution, adopted, there was a police force in operation other than justices of the peace and constables, organized and supported by the authority conferred on the Mayor and City Council of Baltimore by the' Act of the Legislature of 1812, ch. 194; which Act was continued in force by the third Article of the Declaration of Rights. It was to that police, or any other which the Legislature might establish in augmentation or in lieu of it, to which the temporary additional police was (o be subjoined and made appendant. The mere fact of the 19th sec. of the 4th Art. declaring, what would be equally true in the absence of any declaration on the subject, that justices of the peace and constables are conservators of the peace, is not perceived as affording any aid to the theory that they are the contemplated permanent police. Neither their numbers, nor the daily calls upon their time, as strictly judges, and executive officers for the service of process, justify the opinion that they were looked to as adequate to the performance of all the ordinary police duties of so large a city as Baltimore. So far back as the year 1812, experience had demonstrated that a force of one hundred men was necessary. Surely, the large increase of population and the occurrences subsequently to that time, could furnish no reason for diminution of the number of the police, and none was made. The justices and the constables were proclaimed, as were the judges, conservators of the peace. It was a needless declaration, and doubtless made only from abundant caution.

That it was the general understanding that the regular police of the city was that authorized by the Act of 1812, is apparent from the passage of the Act of 1853, ch. 46, entitled, “An Act to provide for the better security of life and property in the city of Baltimore, by increasing and arming the police force thereof.” It repealed the Act of 1812, ch. 194, which limited the appointment of city bailiffs to the number of 100, and at the same time left the number to the unrestricted discretion of the Mayor and City Council, and authorized the arming of the police. Under this Act of 1853, the city acted, and for the first time increased the number of the police beyond one hundred, and gave them arms. No one disputed the constitutionality of that Act; and inasmuch as the Constitution has undergone no change since its passage, it is impossible to perceive how it has come to be, that a power belonging to the Legislature of 1853 is denied to that of 1860.

When the number of the force existing at the time of the adoption of the Constitution is considered in connection with the Act of 1852, ch. 274, which assigned to the whole city of Baltimore twenty-four justices and forty-four constables, sixty-eight in all, and thirty-two less than the number of the police force under the Act of 1812, it is next to impossible to believe, (hat it was intended these justices and constables should constitute the permanent police body of Baltimore.

On the whole then, it is, but fair to assume, that the purpose of the 19th section of the 4th Article of the Constitution, in its reference to justices of the peace and constables, so far as the pity of Baltimore is specially concerned, was merely to provide for an adequate number to perform the duties it had been customary to assign to them prior to the adoption of the Constitution, and not to withdraw them from such duties and appropriate them to the discharge of the more complicated and laborious offices of the ordinary policeman, such as had been executed under the Act of 1812, and the ordinances passed in pursuance of the authority tvhich it conferred. The section leaves with the State its police power, subject only to one limitation, or rather, more correctly speaking, to the participation of the Mayor and City Council of Baltimore in its exercise, ia certain emergencies, by the appointment of a temporary additional police.

It is said that the proviso to. the sixth section of the Police Act, which provides, “That no Black Republican, or supporter of the Helper Book, shall be appointed to any office under said Board,” vitiates the whole of it, because it adds fo the disqualifications for office prescribed by the Constitution.

Were this court permitted to gather from newspapers and partizan harangues the information on which to pronounce its judgments, it might be able to determine what is meant by a “Black Republican,’, and a supporter of the “Helper Book;” but these are sources of intelligence denied to it. It has no judicial knowledge of their signification. 4s they stand in the Act, they are unintelligible and seemingly incapable of definition, and, for anything appearing, wholly inconsistent with its general scope and object.

There is no such crime known to the laws of Maryland, as that of being a “Black Republican,” or “a supporter of the Helper Book.” If the Helper Book be an inflammatory appeal to the passions of the servile portion of our population, it is (if it shall deem it expedient to do so) for the Legislature to prescribe the punishment for such while persons as shall be convicted of having it, in their possession. The Act, among other qualifications, requires that the appointees under it shall be while men; and there is nothing in the Code making it criminal in them, either to sympathize with, or endorse the sentiments contained in the Helper Book.

Judicially uninformed of the meaning of the words, nothing can be pronounced in regard to them but this, that if under them the true names of crimes are cloaked and concealed, of course, on their exposure, the parties convicted of them would suffer whatever of disability the Constitution and laws denounce against them, and if it bo of such a degree as to disqualify for office, the prohibition would be constitutional arid proper. But, if they be construed to include an unconstitutional prohibition, or are, in a legal point of view, nonsensical and impertinent, under the decisions of this court, they are to be excluded from the Act, without impairing the efficiency of the remainder of it. In either aspect, they constitute no valid objection to the law. Davis vs. The State, 7 Md. Rep., 151.

The power given to the Commissioners, in a certain contingency to issue certificates of indebtedness, is not properly before the court on this appeal. No such certificates have been, or may ever be, issued. It might perhaps be time enough to pronounce judicially in regard to it, when the validity of such certificates is contested, which cannot occur until they have an existence by the utterance of them. But the question has been most fully argued at the bar, and, were it necessary for the determination of this case, there ought to be no hesitation in deciding, that such certificates of indebtedness are not within the purview of the constitutional interdict, as expounded by the Supreme Court of the United States, the tribunal whose judgment is conclusive on all in regard t.o the matter. Briscoe & others vs. The President and Directors of the Bank of the Commonwealth of Kentucky, 11 Peters, 257.

Another objection, to the Act, is the power it confers on the Board of Commissioners to call out the militia; it being alleged that it is ap improper interference with the Governor’s constitutional prerogative, under the ninth section of the second Article. The section is, in no particular, more comprehensive of power to the Governor than was the 83rd section of the Constitution of 1776. By the latter the Governor was, with the advice and consent of the Council, authorized to embody the militia, and when embodied, was alone to have “the direction thereof.” Under the present Constitution he “may call out the militia to repel invasion, suppress insurrections> and enforce the execution of the laws; but shall not take the command in person without the consent of the Legislature.” And yet, under the Constitution óf 1776,' no one doubted the power of the Legislature to authorize the calling out of the militia without the consent of the executive. Accordingly many Acts were passed, making it the duty of subordinate officers, to bring their commands... into the field, on the requisition of certain civil officers. The following Acts may be referred to as instances of the exercise of the power: 1798, chapter 100,, section 10,; 1807, chapter 128, section 6; 1813, chapter 19, sections 2 and 5; 1816, chapter 193, section 18; 1823, chapter 188, section 70; 1834, chapter 251, section 57; 1835, chapter 14; 1835, chapter 107.

There is nothing whatever in the Act which abridges, the constitutional power of the Governor; he still has, under it, the power to call out the militia, “to repel invasion, suppress insurrections, and enforce the laws.” The whole scope of the authority given to the Commissioners is not more extensive than that which had been previously conferred on others. The purpose of the delegation is as obvious as it is legitimate. It is to enable the Commissioners to discharge faithfully an important duty cast upon them, that is the dispersion of tumultuous and riotous assemblages, (whether sudden or preconcerted,) having for their design the outrage of the citizen, either in his person or his property, or both; to sustain in an emergency, the legally constituted authorities in their resistance to the violence t>f mobs, and the like disorderly bodies. The arguments adduced to show the dangers possible to flow from an injudicious employment of the authority, would be in no degree Weakened if the power were deposited elsewhere. All delegated power is liable to abuse from the wicked motives, caprice or ignorance, of its depository. And yet, the very existence of government requires it should bo confided to the custody of some one. The jealous Watchfulness of a free people, and the ultimate liability to the injured of those who abuse their trust, together with the innate sense of right which every sane man has, are the only guarantees it is within the province of the law maker to afford the citizen. in a word, every human contrivance challenges the confidence and trust of those for whose advantage it is intended. Absolute safety, under every possible phase of circumstances, is not to be expected, because the frailty of mankind will not allow it. Government itself, in one sense, is an evil, but it is a necessary one, and must be borne for the general good it secures.

If the section conferring the power on the Board, wbre Condemned, then there would he no authority with the civil officers in Baltimore to call out. the militia to suppress any sudden outbreak, the Legislature having, at its last session, by Act of 1860, chapter 6, repealed the seven hundred and sixth section of the fourth Article of the Code of Public Local Laws, which gave to the Mayor of the city of Baltimore,' and the judge of the Criminal Court of Baltimore, and the judge of the Superior court of Baltimore, the power to order out the' militia. The effect of this law, taken in connection with the Police Act, is to confine the power, so far as the city of Baltimore is concerned, to the Governor and the Commissioners of the Board of Police.

Another constitutional objection is to the provision, making it the sheriff’s duty to act under the Board in the preservation of the public peace and quiet, and to call out the posse, if required by them, and enabling the Board, whenever the exigency, in their judgment, warrants it, to 'assume the control and command of all conservators of the peace in the city.

The 20th section of the fourth Article of the Constitution, which mentions the office, and provides for filling it, does not specify or describe the powers and duties of the sheriff. These are left to the common law and the Acts of Assembly-. The charge of the other conservators of the peace is nowhere, in the Constitution, given to him. There is nothing to prohibit the Legislature from adding to or diminishing his duties, provided those added be not in conflict with his office as sheriff. And what was said iu Georgia of the office of sheriff in that State, is equally applicable to that officer and his duties in Maryland. In the case of State vs. Dews, R. M. Charlton’s Rep., 404, it was said by the court:

“It is true that the appointment of sheriff confers upon him the right to execute the duties of the office, but, from the nature of the office, those duties may be changed by law. It is, in this State, a purely ministerial office, whose function -and province is to execute duties proscribed by law. From the very nature of such an office, its powers are the result of its duties; in reference to it, the maxim is strictly true, that ‘’Power and duty are correlative,’ but its powers do not extend beyond, they are the mere consequence of its duties. The holder of such office has power only to execute its duties-, and because such duties are prescribed to and imposed on him. The idea that the duties of a ministerial officer cannot be changed, will involve an inversion of the order of things, and be a flagrant absurdity; it would invest him, who is a mere minister and servant, with authority to limit the power of, and exercise an over-mastering control over, those from whom he is tó receive the law. Those duties are the mere creatures of law, and are, in their very essence, changeable by the law-making power; and his rights, which are derivative only from those duties, cannot prevent their creation or change. His rights, which are the consequence of his duties, cannot intercept the authority of the Legislature to act on 'those duties.” Besides all this, “every citizen summoned by an executive officer to aid him in the preservation of the public peace, or in the service of civil or criminal process, or in the arrest of a felon, is bound to perform the service required, although it may subject him to danger, as well -as 'additional labor, trouble and expense.” The State vs. Mayhew, 2 Gill, 501.

The question next in order to be considered is, whether the use of the property Ought to be given, as demanded in the petition for the mandamus. It was in the discussion of this question, ohe-of the counsel for the respondents, Mr. 'Schley, whilst animated by a zeal indignant against what he considered a violation of the great universal law which distinguishes right from wrong, “quod semper, quod ubique, quod ah omnibus creditum est,” poured forth, in warm language, his denunciation of the purpose -and effect of the section, as if it wrought >a spoliation of What he, and those whom he represented, held sacred as their right. None who heard it could have failed to appreciate the eloquence, nor the fervor which gave to it the charm of a forcible utterance. Its influence on the bench was, as it should have been, but momentary, and the question, in its original simplicity, re-appeared for the calm judicial disposal.

The petition for the mandamus states, that the persons designated in the Act as Commissioners, organized as a Board on the sixth of last February, and that, to enable them to discharge the duties cast upon them, they need the use of the station-houses, and other buildings specified by them. The prayer for the mam.damus, which the writ must follow, is, that the court will issue “the writ of mandamus to tile Mayor and City Council of Baltimore, commanding and enjoining them, the said Mayor and City Council, immediately after the receipt thereof, and without delay, to furnish and allow to the Board of Police of the city of Baltimore, for the police now under its exclusive management and control, as well the use of the Fire Alarm and Police Telegraph in said city, as of all the station-houses, watch-boxes, arms, accoutrements and other accommodations and things provided by the said Mayof and City Council of Baltimore, for the use and service of the police created by it, as fully and to the same extent as the same, at the time of the passage of said Act, were or might be used by or for the said city pólice.5’

The right to the use demanded, is given by the express, language of the 12th section of the Act, and the only question, therefore, is: Had the Legislature the constitutional power to provide, as it has, for ir 1

The property was purchased with the money of owners of property, and for the use and benefit of the community at large. Its dedication is to the public. It belongs', in fact, to the people, although for its more effective use and protection, the legal title to it is vested'in the corporate authorities of the city. Those authorities, for reasons deemed sufficient, were brought into existence just as has been the Board of Commissioners, for the public good. Any power given to the latter, by the Act of their creation, is on the same limitation as that conferred on the Mayor and City Council by their charter; that is to say, both owing their origin to a legislative Act, the powers conferred by it, in each case, are held subject to the revision, modification, or repeal of the body from whence they have been derived. In other words, they are political, powers, held and exercised for political purposes by political or municipal bodies as distinguished from private corporation».- uPublic corporations are such as are created by the government for political purposes, as counties, towns and villages, and the whole interest in them belongs to the public.” 2 Kent’s Com. 275. “Over public property they ■ (the States) have a disposing power,” per Justice Pattersony 2 Dallas, 320. Mr. Justice Story, in delivering the opinion of the court in 9 Cranch, 52, says: “In respect also to public corporations, which exist only for public purposes, such as counties, towns, cities, &c., the Legislature may, under proper-limitations, have a right to change, modify, enlarge or restrain them, securing, hoioever, the property for the use of those for vjhom,. and at whose expense, it was originally purchasedJ* Tbe Act, of the last session has preserved the property for the «se of those for whom, and at whoso expense, it was purchased. The only change effected in regard to it is as to the persons who shall have the control and management of it. The use of it is in no manner altered. A multitude of decisions could he brought forth from every section of this country and England, showing the difference between public and private corporations, in 9 Gill and Johnson, 401, it is said: “Public corporations are to be governed according to the laws of the land, and the government has the sole right, as trustee of the public interest,, to inspect, regulate, control and direct the corporation, its funds and franchises.. That is the essence of a public corporation.” And again: “A public corporation is one that is created for political purposes, with political powers, to be exercised for purposes connected with the public good in the administration of civil government; an instrument of the government, subject to the control of the Legislature, and its members officers of the government for the administration or discharge of public duties, as in the cases of cities, towns,” &c. Under the Constitution of Maryland the city of Baltimore is recognized as a public corporation, established for public purposes, and in this character it is in nowise distinguished from that of the several counties; and, except in so far as majr be forbidden by the Constitution, like them, it is liable to the control of the Legislature. Were this not so, civil government would be an impossibility, because of conflicting claims to the supreme power urged by the different geographical departments into which the Stale is separated. The power (under the limitations alluded to) which creates, can revise, modify, annihilate; it con change, not only the limit, but the nature of the power, and also the depository of it. Mr. Justice Story, in Dartmouth College vs. Woodward, 4 Wheaton, 693, says: “Il is admitted, that the State Legislatures have power to enlarge, repeal and limit the authorities of public officers in their official capacities, in all cases, where the Constitutions of the States, respectively, do not prohibit them: and this, among others, for the very reason, that there is no express or implied contract, that they shall always, during their conuance in office,. exercise such authorities. They are to exercise them only during the good pleasure of the Legislature.” These views are fully sustained in this State by many decisions, and, necessarily so by that of The Mayor & City Council of Baltimore vs. Robert Lemmon, unreported; The State, use of Washington County vs. Baltimore and Ohio Rail Road Co., 12 Gill and Johnson, 399; and by that pronounced, at this term, in the case of the Governors and Visitors of St. John’s College, ante., 330. They are sustained in all of the following cases, with more or less distinctness. 11 Iredell, 563. 3 Hill, 531. 23, Connecticut, 416. 17 Georgia, 56. 22 Georgia, 506. 13 B.Munroe, 1. 12 Louisiana Annual Reports, 515. 4 Scammon, 269; and to use t,he language of the court in 3 New Hampshire, 532: “Towns are public corporations, created for purposes purely public, empowered to hold, property,, and invested with many powers and faculties, to enable them to answer the purposes of their preation. In the creation of su<jh corporation?, there must, in the nature of things, be reserved by necessary implication, a power to modify them in such manner as to meet the public exigencies. There would be great absurdity in the supposition, that corporations, created by the Legislature for purposes purely public, could not be. modified and altered, from, time to time, as the public convenience or necessity might require. A power to alter and change such a corporation, and' adapt it to tffe purposes it was intended to accomplish, is implied in its, very nature.” “They (tfre Legislature) have also under their control the disposition of its corporate prop*, erty, or that which is held for municipal and corporate pui;-. poses.” 29 Vermont, 19.

In the demand made in tire case now before the court, there is no perversion of the use of the property; but, on the contrary, it is to be continued in that for which it was purchased imá is now held, and in none other.

The objection that the Legislature had no right to delegate any portion of the taxing power to the Board of Police, is. fully answered by the decisions of the late Court of Appeals.. In the case of Burgess vs. Pue. 2 Gill 19, the court, say: “ We think there was no validity in the constitutional question which was raised by the appellee’s counsel in the course of his argument, relative to the competency of the Legislature to delegate the power of taxation to the taxable inhabitants, for the purpose of raising a fund for the diffusion of knowledge and the support of primary schools. The object was a laudable one, and there is nothing in the Constitution prohibitory of the delegation of the power of taxation, in the mode adopted, to effect the attainment of it; we may say that grants of similar powers to other bodies, for political purposes, have been coeval with the Constitution itself, and that no serious doubts have ever been entertained of their validity. It is therefore too late, at this day, to raise such an objection.” See, also, the case of The State vs. Mayhem, 2 Gill, 487, where the same doctrine is fully sustained.

(Decided April 17th, 1860.)

The opinion of the learned judge, who decided this case in the Superior Court, shows- the bestowal of great care, and his usual ability in its preparation. The views there taken, are in full concurrence with those herein presented. The judgment pronounced by him must, be affirmed.

As it was agreed that the case at the relation of the Mayor and City Council of Baltimore, as well as that at the relation of Charles Howard and others, should be considered as submitted for the decision of this court, and inasmuch as all the questions applicable to both, have been considered and decided, the order of the Superior Court in the former, as Well as that in the latter, is to be affirmed.

Order affirmed in each case.