Shafer v. Mumma

• Decision Date: 09 October 1861
• Parties: GEORGE SHAFER, and ELMIRA his Wife, v. DANIEL G. MUMMA.
• Court: Maryland Court of Appeals

17 Md. 331

GEORGE SHAFER, and ELMIRA his Wife, v. DANIEL G. MUMMA.

Court of Appeals of Maryland.

October 9, 1861

The Mayor of Hagerstown has, under the charter and ordinances of that city, authority to try and fine disorderly persons and lewd woman, found within its corporate limits, and the exercise of such authority is but the exertion of the police power, as contradistinguished from the regular judiciary powers, and is therefore, no infraction of that part of the Constitution of the State which appertains to the administration of the judicial power, strictly as such.

APPEAL from the Circuit Court for Washington county.

Action of trespass and false imprisonment, brought on the 3rd of November 1858 by the appellant, Elmira, whilst a feme sole, against the appellee. The defendant pleaded that he did not commit the wrongs alleged, and then several pleas of justification under and by virtue of authority conferred upon him as Mayor of Hagerstown, in which he sets forth in full the several Acts of Assembly and ordinances under which he acted as Mayor, as aforesaid, all of which are sufficiently stated in the opinion of this court. The plaintiffs joined issue upon the first plea, and replied to the others, on which replication issue was joined by the defendant.

Exception: --A statement of facts was agreed upon between the parties, which is sufficiently stated in the opinion of this court. After all the testimony had been given, the plaintiffs submitted a series of prayers, asking the court to instruct the jury that the defendant's several pleas of justification were not sufficient in law, and afforded him no protection; that the defendant had no judicial authority to take cognizance of pretended offences against said corporation, and that being a lewd woman, without having committed some overt act, is not punishable. These prayers, the court (PERRY, J.) refused to grant, and to this ruling the plaintiffs excepted, and the verdict and judgment being against them appealed.

The cause was argued before LE GRAND, C. J., TUCK, BARTOL and GOLDSBOROUGH, J.

D H. Wiles and R. H. Alvey, for the appellants:

The principal question presented in this case is, had the appellee authority, by virtue of his office as Mayor of Hagerstown, to act in a judicial capacity, impose fines and punishments for any supposed violation of law? We contend that the Constitution of the State conferred no such power upon him, nor was he elected to his office at the time and by the people of any district, pursuant to any Act of Assembly passed for the purpose of carrying into effect that portion of the Constitution, which provides for the election and qualification of all the judicial officers known to that instrument. Art. 4, sec. 1, of the Constitution says: " The judicial power of this State shall be vested in a Court of Appeals, in circuit courts, in such courts for the city of Baltimore as may be hereafter prescribed, and in justices of the peace." Sec. 19 of the same Article says: " The Legislature, at its first session after the adoption of the Constitution, shall fix the number of justices of the peace and constables for each ward in the city of Baltimore, and for each election district in the several counties, who shall be elected by the legal and qualified voters thereof, respectively, at the next general election for delegates thereafter. " Art. 3, sec. 5, says: " The first election for delegates shall take place on the first Wednesday of November, eighteen hundred and fifty one, and the election, & c., shall be held every two years thereafter." And Art. 4, sec. 29, provides for the officers elect to be commissioned by the governor. Municipal corporations are public, being part of the State government; their charters are at all times subject to modification by a convention to adopt a new Constitution or the Legislature, ( 15 Md. Rep., 376, Baltimore Police cases, ) and, therefore, if the Act of 1847, ch. 198, set out by the appellee in his pleas, ever had any virtue it was repealed by the adoption of the present Constitution. By that instrument the judicial power of the State is conferred upon certain and specified officers, and the Legislature cannot empower others not named in the Constitution, to act in a judicial capacity and impose fines and punishments. The delegation of judicial power under the Constitution is exclusive in its nature. The Legislature has no power to exercise or authorise the exercise of judicial power; it cannot grant judicial powers. 1 G. & J., 472, Crane vs. Meginnis. 8 Gill, 145, Fiery vs. Miller. 1 Wheat., 304, Martin vs. Hunter's lessee. 17 Johns., 4, United States vs. Lathrop. 1 J. J. Marshall, 205, Frame vs. Trebble. 7 Munroe, 649, Jarman vs. Patterson. 14 Illinois, 420, Rockford vs. Maynard.

A. K. Syester, for the appellee:

The ordinances and by-laws of a municipal corporation are mere police regulations, for the order, peace and morals of a particular community, and form no part of the criminal jurisprudence of the State. The exercise of the " " " judicial power " of the State is invoked in criminal cases, arising under the general criminal justice of the State, and where " its peace, government and dignity" is involved, and is not challenged by the infractions of mere police regulations of municipal corporations, nor does any tribunal exercising the " " " judicial power of the State," hold itself either bound to take notice of such violations, as such, or called on to suspend, or arrest its own action, when invoked by a violation of the general criminal justice of the State, because such violation carried with it the infraction of a by-law of a municipal corporation, which, as such, has already been made the subject of fine or other punishment, under such by-law. The mayor in this case did not presume to take cognizance of any offence against the general criminal justice of the State, or any thing touching its peace, government and dignity, as such; but acting ministerially in enforcing the by-laws or police regulations of his corporation, he trenched upon no office committed to the " judicial power" of the State, assumed none of its obligations, and cannot,...