Beasly v. Ridout

Citation94 Md. 641,52 A. 61
PartiesBEASLY, Sheriff. v. RIDOUT et al.
Decision Date07 March 1902
CourtCourt of Appeals of Maryland

Appeal from circuit court, Anne Arundel county; James Revell, Judge.

Mandamus by Weems Ridout and others, as visitors of the Anne Arundel jail, against George Thomas Beasly, as sheriff of Anne Arundel county, to obtain possession of the jail. From a judgment for relators, the defendant appeals. Reversed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

Edward C. Gantt, for appellant.

Daniel R. Randall, for appellees.

PEARCE, J. By chapter 15 of the Acts of 1901 the charge, control, and supervision of the Anne Arundel county jail, and of all persons committed thereto, was. taken from the sheriff of the county, and was vested in a board of visitors provided by that act. The immediate care and custody of the jail and of all the prisoners is committed to a warden appointed by, and subject to the direction of, said visitors, but with the same powers in that regard as were possessed by the sheriff, and with the same liability for escapes or other neglect of duty. Upon the appointment of said visitors, demand was made by them upon the sheriff for the possession and custody of the jail and of the prisoners therein, which was refused by the sheriff, who alleges that the act of assembly in question is unconstitutional and void. Thereupon the visitors applied for a mandamus commanding the sheriff to deliver possession, which, being ordered by the circuit court, the sheriff has brought this appeal.

The proceedings under the petition for the mandamus have not been conducted in the manner prescribed by the Code, no proof having been offered to sustain its allegations, although the judge must be satisfied these allegations are founded in truth, whether the petition is heard on general demurrer by the respondent, on answer denying the allegations of the petition, or ex parte for want of answer. Legg v. Mayor, 42 Md. 223; Sudler v. Lankford, 82 Md. 148, 33 Atl. 455. The respondent's pleading is somewhat equivocal in form, but, if it be regarded as an answer, it does not admit the facts alleged, and If it be regarded as a demurrer, or as in part an answer and in part a demurrer, the facts are not thereby admitted, that not being the effect of a demurrer in a proceeding for a prerogative writ like mandamus. Sudler v. Lankford, 82 Md. 149, 33 Atl. 455. Subsequently certificates of the qualifications of the visitors were filed, together with an agreement of counsel that all questions of law and fact should be submitted to the court without the intervention of a jury. Assuming, for the present purpose, that the judges were in the discharge of a judicial function, they would take judicial notice of their own appointment of three visitors in compliance with the act of assembly, but the agreement mentioned could not supply proof of their meeting with the state's attorney as the fourth member, their organization as required by the act, and the election of Dr. Welch as the physician and the fifth member, all of which was indispensable to a legal demand upon the sheriff, but none of which was admitted by the pleading. In the opinion of the court, however, it is stated that "at the hearing the questions of fact at issue were waived or admitted," and we think this statement by the court should be given the effect of an admission of record, and as equivalent to full proof. Whether an act of assembly is a valid exercise of legislative power is, in all eases, a question, not of expediency or policy, but of power alone, as determined by the constitution. "Questions of expediency or utility are matters for the exclusive decision of the legislature, and cannot be regarded by the judiciary in testing the power to pass laws. There is a presumption, moreover, that every act of the legislature is within its power, and, before any act should 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." These are the rules laid down by our predecessors in Mayor, etc., of Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572, and by which we must be guided in our consideration of this case.

The sole ground of objection to the validity of the act in question made in the appellees' brief, and the only one argued at the hearing, was that the office of sheriff is a constitutional office; that the sheriff was an officer of the common law, and that when the constitution of 1776 provided for the election by the people of a sheriff for each county, without prescribing in express terms the powers and duties of the office, it must have been intended that the office should carry with it eo nomine all the duties, powers, and privileges appertaining to it at common law; and that, as the custody of the county jail and the care of the prisoners therein was the clear common-law right of the sheriff, the legislature could not destroy or abridge that right and confer it in whole or in part upon any other person designated by it, or by its delegated authority. There is certainly high authority for this contention where the constitution is silent as to the powers and duties of the office. In Sewell, Sher. p. 7, it is said: "The custody of the jails of counties is inseparable from the sheriff, and therefore, if the king grants the custody of such jail to another, it is void; for the sheriff, being the immediate officer of the king's courts, and answerable for escapes, and subject to amerciaments, ought to have the appointment of such gaolers for whom he will answer; and he cannot be restrained himself in any part of his power by the king." In Murfree, Sher. § 41, it is said: "When the office of sheriff is a constitutional office in any state, recognized and designated eo nomine as a part of the machinery of the state government, the sheriff ex vi termini must possess in that state all the substantial powers appertaining to the office by common law. It is competent for the state legislature to impose upon him new duties growing out of public policy or convenience, but it cannot strip him of his time-honored and common-law functions, and devolve them upon the incumbents of other offices created by legislative authority,"—though the author admits that "it would be competent for the British parliament to modify, limit, or enlarge the rights and duties of sheriffs within that kingdom, or to abolish the office altogether, and distribute its functions among other officers; and that a like power is no doubt vested in constitutional conventions of the several American states, by which the constitutions and organic laws of those states are from time to time changed and amended." The views thus expressed are sustained by courts of high authority. In New York the constitution of 1821 provided that clerks of counties, including the city and county of New York, should be chosen by the people, but made no reference to their powers and duties. The act of 1843 provided that the clerk of the court of common pleas for the city and county of New York should be appointed by the court, and should act as county clerk. The question arose in Warner v. People, 2 Denio, 272, 43 Am. Dec. 740, whether the act was constitutional, and it was held that it was not Judge Bronson said: "In effect, the statute divides the office of the clerk of the city and county of New York into two parts, and as to the largest share in point of duty and emolument takes the choice of the officer from the electors of the county and gives the appointment to the court. If this can be rightfully done, I do not see any security for the rest of the office." Chancellor Walworth said: "When the legislature assumes the power to take from a constitutional officer the substance of the office itself, and to transfer it to another, who is to be appointed in a different manner, and to hold the office by a different tenure than that which is provided by the constitution, it is not a legitimate exercise of the right to regulate the duties or emoluments of the office, but an infringement upon the constitutional mode of appointment." In People v. Albertson, 55 N. Y. 57, the court of appeals said: "The constitution cannot be evaded by a change in the name of an office, nor can an office be divided, and the duties assigned to two or more officers under different names, and the appointment to the offices made in any manner except as authorized by the constitution." The constitution of New York of 1846, then in force, did not mention the powers and duties of sheriff, and the act of 1882 provided that the Albany county penitentiary should thereafter be the county jail, and required the sheriff to remove the prisoners from the jail to the penitentiary, and made the superintendent the jailer, requiring him to give bond to the sheriff for the discharge of the duties as jailer, but did not release the sheriff from liability for escapes or from amerciaments. This act was drawn in question in People v. Keeler, 29 Hun, 175, and was held unconstitutional, because it deprived the sheriff of common-law powers and duties pertaining to his office, and violated the provision requiring the sheriff to be elected by the people. The same was held in Wisconsin as to a sheriff, in State v. Brunst, 26 Wis. 412, 7 Am. Rep. 84, for the reasons stated in Warner v. People and People v. Keeler, supra; and, as to a constable, in Allor v. Wayne Co., 43 Mich. 76, 4 N. W. 492, for analogous reasons. All these cases were reviewed in the recent case of Virtue v. Board (N. J. Sup., Nov. 15, 1901) 50 Atl. 360, and the principles there announced were approved and adopted, and an act transferring the custody of the Essex county jail to...

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