Mayor & City Council of Baltimore v. State ex rel. Bd. of Police of City of Baltimore

• Decision Date: 17 April 1860
• Parties: THE MAYOR & CITY COUNCIL OF BALTIMORE v. THE STATE, on the relation of the Board of Police of the City of Baltimore: MAYOR & CITY COUNCIL OF BALTIMORE v. CHARLES HOWARD and others.
• Court: Maryland Court of Appeals

15 Md. 376

THE MAYOR & CITY COUNCIL OF BALTIMORE

v.

THE STATE, on the relation of the Board of Police of the City of Baltimore:

MAYOR & CITY COUNCIL OF BALTIMORE v. CHARLES HOWARD and others.

Court of Appeals of Maryland.

April 17, 1860

The Act of 1860, ch. 7, repealing certain laws relating to the Police of the city of Baltimore, and amending certain provisions of the city charter relating to the police and general powers of the Mayor and City Council, and providing a permanent police for the city, under the control of a Board of Police, consisting of commissioners appointed by the Legislature, is constitutional and valid.

In cases of doubt on the question of power in the Legislature to pass a law, the courts ought not to interfere and pronounce it unconstitutional; they cannot do so without assuming (where it does not clearly appear) that the Constitution has been violated.

The power of appointment to office is not, under our systems of checks and balances in the distributions of powers, where the people are the source and fountain of government, a function intrinsically executive, in the sense that it is inherent in and necessarily belongs to, the executive department.

Our form of government in its various changes has never recognised the power of appointment to office as an executive prerogative; the Constitution so far from treating it as an inherent executive power indicates that it belongs where the people choose to place it.

The 6th Art. of the Bill 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," is not to be interpreted as enjoining a complete separation between these several departments.

Such complete separation has never practically existed in any of the States in whose fundamental law this principle has been asserted; in this State there are numerous instances of laws affording relief where the judiciary possessed ample jurisdiction over the subject matter, and instances of appointments to office, by the Legislature, are equally numerous.

Such legislation is evidence of co-temporaneous construction and acquiescence of the people, and the various departments, in this practical interpretation, and the Constitution may receive an interpretation from a long, constant and uniform legislative practice.

The Bill 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 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 principles previously declared, according to the subject and the language employed.

The design of Art. 6, of the Bill of Rights, was to ingraft the principles there announced, 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.

If the power of appointing officers to offices created by law, is conferred by the Constitution on any other branch of the government, the Legislature cannot exercise such power, and the law would be void, but if the power is given to the Legislature, it may be exercised notwithstanding the 6th Art. of the Bill of Rights

Sec 11, of Art. 2, of the Constitution, confers on the executive the appointment of all officers not otherwise provided for, " unless a different mode of appointment be prescribed by the law creating the office," and under this the Legislature may, itself, designate the officers in the law creating the offices.

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 considered with reference to the previous legislation of the State.

The power of appointment to offices created by law, having been exercised by the Legislature, from the earliest period of the government, in the absence of any prohibition in the Constitution, express or implied, it is to be presumed that the people intended the Legislature should continue to exercise the power.

While the motives of the Legislature can have no effect upon the efficiency of laws, neither can they be regarded by the judiciary when testing the power of the Legislature to pass them.

The fact that the Constitution mentions and recognises the Municipal Corporation of the city of Baltimore, does not make the charter of the city a constitutional charter, so as to place it beyond the reach of legislative power.

The city of Baltimore and the counties are public territorial divisions 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, acccording to the laws severally applicable to each.

The city of Baltimore and the counties 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.

The provision in the Police law, which transfers to the commissioners, for the purposes of the new police, the use of the fire alarm telegraph, station houses, & c., provided by the city, as fully and to the same extent as the same are now, or may be, used by or for the city police, is constitutional and valid.

Such a provision merely takes city property dedicated to particular public uses and applies it to the same purposes, by only changing the agency by which the use is to be directed; the character of the property is not changed nor the title; no matter by whom managed, it remains public, devoted to public use, and all the while belongs to the city.

Art. 4, sec. 19, of the Constitution, after providing for the election of justices and constables for the counties and city of Baltimore, and declaring them to be, by virtue of their offices, conservators of the peace, in the counties and city respectively, concludes thus: " 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." HELD:

That the police which the city authorities are hereby empowered to create is to be additional to the police system then in operation, and such as might thereafter be established by law, and not to the justices and constables mentioned in this section.

It is not made the duty, nor is it within the nature of his office, that a justice of the peace, or a constable, should perform police duty, other than such as looks to the preservation of the peace.

The power to govern belongs to the people, and 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.

The power to levy taxes is a sovereign power, and unless committed to some portion of the people, may be exercised by the Legislature, and it is not to be considered as parted with by mere construction.

The power to levy taxes may be delegated by the Legislature to commissioners, or any other agents, and when the Legislature provides for a tax by any agency whatever, it is, in contemplation of the Constitution, the act of the people.

The power given to the commissioners to issue, in certain contingencies, certificates of indebtedness in the name of the Mayor and City Council, bearing interest, with power to pledge and dispose of them, is not in violation of that clause of Art. 1, sec. 10, of the Constitution of the United States, which declares that no State shall " remit bills of credit."

There is no injustice, nor defect of law, in authorising such certificates to be received in payment of taxes; such mode of payment of public taxes has heretofore been practiced in this State.

The provision making it the duty of the sheriff, when called on, to act under the Board of Police, in the preservation of the public peace, and to call out the posse, if required by them, and hold it subject to their direction, is no valid objection to the law, nor would it vitiate the law if the objection were sustained.

The Constitution mentions the office of Sheriff, and provides for filling it, but does not specify or describe his powers and duties; these are left to the common law and the Acts of Assembly and may be changed by law.

The power given to the Board of Police to call out the military force of the city to aid in preventing threatened disorder, or to suppress insurrection, riot or disorder, is no valid objection to the law, nor would it vitiate the law if the objection were sustained.

There is nothing in such a provision, nor in this law, which abridges the constitutional power of the Governor to call out the militia to repel invasion, suppress insurrections, and enforce the laws.

The proviso, declaring " that no Black Republican, or endorser or approver of the Helper Book," shall be appointed to any office under the board, is unconstitutional if it is to be understood that that class of persons are prescribed on account of their political or religious opinion, but as the court cannot officially understand who are meant to be...