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

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.