Cromwell v. Jackson

• Decision Date: 12 March 1947
• Docket Number: 76.
• Parties: CROMWELL v. JACKSON, Clerk of Circuit Court, Allegany County.
• Court: Maryland Court of Appeals

52 A.2d 79

188 Md. 8

CROMWELL v. JACKSON, Clerk of Circuit Court, Allegany County.

No. 76.

Court of Appeals of Maryland

March 12, 1947

Dissenting Opinion March 13, 1947.

Appeal from Circuit Court, Allegany County; Joseph D. Mish, Judge.

Proceeding by Eldred A. Cromwell against Robert Jackson, clerk of the Circuit Court for Allegany County, for writ of mandamus commanding Robert Jackson to file an application for a saloon license and to determine the validity of a statute. From a decree dismissing the petition, the petitioner appeals.

Reversed in part and affirmed in part, and case remanded with directions.

MARKELL and DELAPLAINE, JJ., dissenting.

Edward J. Ryan, of Cumberland, and F. Neal Parke, of Westminster for appellant.

William C. Walsh and D. Lindley Sloan, both of Cumberland (Morgan C Harris, of Cumberland, Md., William Curran, Atty. Gen., Hall Hammond, Deputy Atty. Gen., and Joseph D. Buscher, Asst Atty. Gen., on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.

COLLINS Judge.

The appellant, Eldred A. Cromwell, filed on April 13, 1946, in the Circuit Court for Allegany County a petition alleging among other things that he presented to Robert Jackson, Clerk of the Circuit Court for Allegany County an application for a saloon license under the Act of 1894, Chapter 140 of the General Assembly of Maryland and the amendments thereto. Therein he stated that he possessed all the qualifications therefor and would abide by all the provisions thereof. He stated that the said Clerk of said Court refused to accept this application and file it, and that the said Clerk endorsed at the foot of the application, 'refuse to accept because no law covering such application.'

He further alleged that the refusal of the said Clerk was not because of any defect in the form or substance of the application, but because the Clerk contended that Chapter 140 of the Acts of 1894 aforesaid was repealed and re-enacted by the General Assembly at its Special Session of 1933 by Chapter 5(V) of the Acts of that session, which now regulates the sale of spirituous or intoxicating liquors in Allegany County. He prayed that a writ of mandamus issue commanding the said Robert Jackson to file the aforesaid application for the reason that Chapter 5(V) of the Acts of the Special Session of 1933 aforesaid is unconstitutional and void because it attempted to confer substantial and material administrative and non-judicial functions upon the Circuit Court for Allegany County, and the Judges thereof, in explicit and direct violation of the express prohibition and denial of the provisions of the Constitution of the State of Maryland.

He further asked that the Court by its declaratory judgment construe, determine, and declare whether or not Chapter 5 of the Acts of the Special Session of 1933 'is a valid and operative statute in effect in Allegany County in the licensing, regulation and control of the manufacture or sale of alcoholic beverages within Allegany County; and if not, whether the Acts of 1894, Chapter 140 and the Acts amendatory thereof are in force and in effect in said Allegany County.' He also asked for other and further relief.

An answer to this petition was filed by Robert Jackson, Clerk of the Circuit Court for Allegany County, appellee, which in effect admitted that the issue in this case is the constitutionality of Chapter 5, aforesaid, which the appellee maintains is constitutional. The answer set out certain facts which were claimed to sustain the constitutionality of that Act and to show that the duties imposed thereby upon the Judges of the Circuit Court for Allegany County were not administrative and nonjudicial, but judicial in character. The answer further alleged that even if Chapter 5, aforesaid, is held unconstitutional, that Chapter 140 of the Acts of 1894 and the amendments thereto have been repealed, further that if Chapter 5 is invalid Allegany County will be left without any law authorizing the issuance of licenses for the sale of intoxicating beverages. An answer was also filed by the Attorney General of Maryland, adopting in its entirety the answer of Robert Jackson.

To this answer of Robert Jackson, the appellant filed a demurrer to the effect that the answer was bad in substance, insufficient in law, and did not state facts sufficient to constitute a defense. The trial Judge, holding that the demurrer mounted up to the first substantial error in the pleadings, filed an order on August 20, 1946, dismissing the petition for the Writ of Mandamus and decreeing that Chapter 5 of the Acts of the Special Session of the General Assembly of Maryland of 1933 is a constitutional and valid enactment of the General Assembly entitled to full legal force and effect. The plaintiff was ordered to pay the costs. From that order and decree of August 20, 1946, the appellant appeals.

Before the Constitution of 1851, by The Declaration of Rights, in the Constitution of 1776, section 6 provided: 'That the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other.' The case of State v. Chase, June 1821, 5 Har. & J. 297, involved the duties of the then Chief Judge of the third judicial district of this state. This Court there held that the legislature could constitutionally impose upon the judges any new and judicial duties which may in their judgment be deemed necessary to the administration of justice. It was further held at page 304 of 5 Har. & J.: 'New judicial duties may often be unnecessarily imposed, and services, not of a judicial nature may sometimes be required. In the latter case, a judge is under no legal obligation to perform them.' In the case of Wright v. Wright's Lessee, 2 Md. 429, 56 Am.Dec. 723, decided December 1852, this Court pointed out in reference to the sixth section of the Bill of Rights hereinbefore quoted, that the evidence purpose was to parcel out and separate the powers of government; to confide particular classes of them to particular branches of the supreme authority, such of them as are judicial in their character to the judiciary, such as are legislative to the legislature, and such as are executive in their nature to the executive. It was said in that case at page 452 of 42 Md., 'Within the particular limits assigned to each, they are supreme and unconstrollable.'

By the Constitution of 1851, adopted May 16, 1851, and the present Constitution of 1867, section six, supra, of the Bill of Rights was further restricted as follows: '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.' Declaration of Rights, 1851 Article 6; 1867 Article 8. (Italics supplied here.)

The primary question for our decision is whether the legislative branch of the state government by the enactment of Chapter 5(V) of the Special Session of 1933 imposed non-judicial duties upon the judiciary. If by that Act the duties imposed upon the judiciary are non-judicial, under the plain words of the Constitution of Maryland the Act is unconstitutional and void.

Section 301 of that Act sets forth the license fees and under sub-sections states what is permitted under the particular license granted. Section 301A provides that the Clerk of the Court upon approval of the Court, shall have authority to grant special licenses at any bona fide entertainment, held by any club, society, or association for a period not exceeding seven consecutive days. Section 301B provides that the Clerk of the Court, pending final action upon any application for any license applied for, without any notice or advertisement, shall approve a temporary license of certain classes, to any applicant therefor. This temporary license entitles the holder to operate for a period not exceeding sixty days and shall expire immediately upon the action of the Court in approving or refusing to approve the original application for a license. Section 304 requires the applicant to swear to every application for a license and specifies the information to be contained in the application.

For the purposes of this case it is necessary to quote Section 305 of the Act, here attacked, in full. It provides:

'Section 305. There shall be annexed to said petition, a petition signed by at least six reputable citizens or voters or property holders who have not signed any other petition for license granted under this Act living or owning property in the vicinity of the place for which license is applied, stating the full name, resident, or property owned of each person and certifying that they have been acquainted with the petitioner or petitioners for more than one year preceding said application for license, and that they have good reason to believe and do believe that all the statements contained in said petition are true, and they, therefore, pray that said petition be granted and that the license be issued as prayed for. If after the notice provided for in this Act there shall be no remonstrances filed with said Clerk against the issuing of the same, the Clerk shall certify such fact upon said application and immediately deliver the application to the Court, who shall forthwith pass an order setting a time when said Court shall sit for the purpose of examining and finally passing upon said application; and it shall be the duty of the Clerk to notify each of said applicants of the time set for said hearing and request that said applicant be personally present thereat to answer any and all such questions as the Court may require of him touching upon said application. If

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