dissenting:
I respectfully dissent.
Article V, section 9 of the Constitution of Maryland, in providing for the office of the State’s Attorney, states that *505“ [t]he State’s Attorney shall perform such duties and receive such salary as shall be prescribed by law . . . .” It is the opinion of the majority that the effect of this constitutional provision is to vest in the State’s Attorney all of the powers and duties possessed by the English Attorney General at common law with respect to the prosecution of cases, so that those powers and duties may not be diminished by the Legislature. The majority’s position is not only inconsistent with prior decisions of this Court, but is also contrary to the position taken in an overwhelming majority of jurisdictions faced with a similar issue.
As created by the General Assembly in the State Prosecutor Act, Chapter 255 of the Laws of 1975, the office of State Prosecutor, an appointive and independent office in the executive branch, is empowered to investigate possible violations of certain laws of a politically sensitive nature and to commence prosecution of alleged violations upon failure of the State’s Attorney to prosecute. Concurrent power with the State’s Attorney to prosecute a certain class of crimes is thus given to the State Prosecutor. I agree with the majority that the effect of giving such concurrent power to the State Prosecutor is to transfer some power from the State’s Attorney to the State Prosecutor, that is, discretion to determine whether prosecution should be commenced with respect to that class of crimes enumerated in the Act. See Ewell v. State, 207 Md. 288, 296, 114 A. 2d 66 (1955); Brack v. Wells, 184 Md. 86, 90, 40 A. 2d 319, 156 A.L.R. 324 (1944). I do not agree, however, that the Constitution prevents such a transfer of power.
A basic problem with the position of the majority that the State’s Attorney is vested, under the broad language of the Constitution, with the powers of the common law Attorney General is that the framers did not use the common law designation, but instead employed a title without common law significance.
The majority cites the history of the various constitutional and statutory provisions in Maryland pertaining to the offices of State’s Attorney and Attorney General to show that the office of State’s Attorney was created out of the *506office of Attorney General, and, since the Attorney General was a common law officer, the majority concludes that the State’s Attorney is therefore vested with the common law powers and duties of the Attorney General. But while it may be true that the State’s Attorney now performs many of the duties previously performed by the Attorney General, the fact remains that the office of State’s Attorney was not itself a common law office. Consequently, the inference espoused by the majority, that the framers, while using the term “State’s Attorney,” meant to vest in the office the powers and duties of the Attorney General at common law, is weak at best. Thus, in Hawkins v. State, 81 Md. 306, 313, 32 A. 278 (1895), this Court held that State’s Attorneys do not possess powers by virtue of the common law because “they are unknown to it.”
This is not to say that the powers and duties of a common law office are of no significance when the common law term is employed in a constitutional provision, though there is authority to the effect that use of the common law designation of an office in a constitution, without reference to the duties of that office, does not imply that the office is clothed with common law powers and duties. See Baltimore v. State, 15 Md. 376, 468, 74 Am. Dec. 572 (1860); State v. Seattle Gas & Elec. Co., 28 Wash. 488, 68 P. 946, 949 (1902). Here the common law designation is not used and, as will be discussed at length below, reference is made to the duties of the office of State’s Attorney. Nor is it at all clear what the duties of the English Attorney General were at common law. Fergus v. Russel, 270 Ill. 304, 110 N. E. 130, 149 (1915) (dissenting opinion). Perhaps the most that can be said in this case is that the common law duties of the predecessor office might aid in interpreting the legislative and constitutional grants of power.
But, as suggested above, a more fundamental problem with the position of the majority is that the Constitution does make reference to the duties of the State’s Attorney. Section 9 of Article V provides that the State’s Attorney “shall perform such duties ... as shall be provided by law.” While it is widely held that when an office known at *507common law is created by constitutional provision, but the constitution is silent as to the powers and duties of the office, constitutional duties of the common law office may be implied, Yelle v. Bishop, 55 Wash. 2d 286, 347 P. 2d 1081, 1086 (1959); Shute v. Frohmiller, 53 Ariz. 483, 90 P. 2d 998, 1000 (1939), such an inference is negated when the constitution seeks to define the duties of the office or authorizes the Legislature to do so.
Of concern, then, is the effect of the phrase “as shall be provided by law” in Article V. Only two or, at best, three jurisdictions have been found which hold that the effect of this or similar language in connection with a common law office vests in the office, and thus prevents the Legislature from diminishing, the powers of that office at common law. See Fergus v. Russel, supra; Ex parte Corliss, 16 N. D. 470, 114 N. W. 962, 965 (1907); cf. Wright v. Callahan, 61 Idaho 167, 99 P. 2d 961, 965-66 (1940) (prior statutory office); but see Padgett v. Williams, 82 Idaho 28, 348 P. 2d 944, 948 (1960). The overwhelming majority of jurisdictions, however, have held that language such as that used in Article V authorizes the Legislature fully to prescribe the duties of the office, to the extent of diminishing those duties if it sees fit. See Johnson v. Commonwealth,1 291 Ky. 829, 165 S.W.2d 820, 826-27 (1942), and Shute v. Frohmiller, supra, 90 P. 2d at 1001-02, and the cases collected therein.
This Court faced the very same issue with respect to a common law officer in Beasley v. Ridout, 94 Md. 641, 52 A. 61 (1902). There, a 1901 statute transferring supervision and control of the Anne Arundel County jail from the Sheriff to a Board of Visitors was challenged as encroaching on vested powers of a constitutional office. The constitution at that time provided that the Sheriff “shall exercise such powers and perform such duties as now or may hereafter be fixed by law.” Upon appointment, the Board of Visitors demanded and was refused custody of the jail by the Sheriff; it then *508brought a petition for mandamus. The Sheriff argued that his was. a constitutional office and because the office of Sheriff was one known at common law, all of its duties and powers at common law were vested in the office by the Constitution and the Legislature could not limit these powers or transfer them to another officer. The Court rejected the Sheriffs argument, holding that the clear effect of the language of the Constitution vested complete control over the duties of the office in the Legislature:
“Under the present Constitution, the powers and duties which the Sheriff is to exercise and perform are not such alone as were then determined by the common law, but were those — save and except as then or thereafter fixed by law, whether the effect of such law was to repeal, enlarge, or limit those powers. The language could not have been more explicit or plainer in meaning if the Constitution said ‘The powers and duties of Sheriffs shall be such as now are or may hereafter be conferred and prescribed by legislative enactment.’ ” 94 Md. at 656-57 (emphasis in original).
Thus, the Court in Beasley upheld the transfer of power from the Sheriff to the Board of Visitors, though it concluded sua sponte that the act in question unconstitutionally imposed non-judicial duties upon the judges who were required to appoint the members of the Board. I understand the majority to attempt to distinguish Beasley by attributing to that opinion a reliance on Baltimore v. State, supra, and its rationale. There, the Court, in sustaining another statute having the effect of transferring common law powers of the Sheriff to another officer, adopted what became the minority view that in the case of a constitutional office of a ministerial nature, vested with common law powers and duties by reason of the creation of the office without reference to its powers, such powers and duties could be diminished by statute.
The Beasley Court not only did not rely on Baltimore v. State, but to the contrary expressed doubt as to the efficacy *509of its reasoning in deference to the majority view. 94 Md. at 656. Instead, what Beasley held was that as a result of the addition of language to that section of the Constitution creating the office of Sheriff, to the effect that the Sheriff shall “exercise such powers and perform such duties as now or may hereafter be fixed by law,” the common law powers of the Sheriff were no longer even arguably vested in that office by the Constitution. It should, perhaps, be noted that the above quoted language was added to the Constitution just four years after the decision in Baltimore v. State, causing the Beasley Court to speculate that perhaps the language was added specifically to incorporate the holding in Baltimore v. State and to end any doubt as to the result. 94 Md. at 657.
The interpretation in Beasley of the language at issue has also been employed by this Court in the case of a Justice of the Peace, Woelfel v. State, 177 Md. 494, 9 A. 2d 826 (1939), and in the case of a County Commissioner, Prince George’s Co. v. Mitchell, 97 Md. 330, 336-37, 55 A. 673 (1903). So also has the Court held with respect to the Attorney General that he possesses no other powers than those prescribed by the Constitution or by statute, and possesses no powers by the common law of England. Wells v. Price, 183 Md. 443, 446, 37 A. 2d 888 (1944); Kilgour v. Evening Star Co., 96 Md. 16, 29, 53 A. 716 (1902). The majority sub silentio overrules these cases as well as Beasley.
The legislative history expounded at length by the majority lends further support to the Beasley interpretation. The constitution of 1776, Article XLVIII, created the office of Attorney General without referring to the duties of that office, thus arguably vesting in that office the powers of the common law Attorney General. The 1816 constitutional amendment, however, “abrogated, annulled, and made void ... all and every part of the constitution and form of government of this state, which relates to the attorney general”; the amendment further provided that “the duties and services, now provided by law to be done and performed by the attorney general, shall be done and performed by such persons, and in such manner as the general assembly of *510Maryland shall hereafter direct.” Thus was complete discretion to deal with the powers and duties of the Attorney General clearly vested in the Legislature. It was against this background that in 1851, the office of State’s Attorney was created with such duties “as may hereafter be prescribed by law,” and reestablished in the 1864 and 1867 Constitutions with such duties “as are now or may hereafter be prescribed by law.”
The majority is correct only in its inference that the 1943 amendment, which changed the language of Article V, section 9 to provide that the State’s Attorney “shall perform such duties ... as shall be prescribed by law,” had no effect upon the state of the office. I submit that the more precise language of the 1943 amendment only serves to clarify what was the law prior to 1943: that the Legislature was empowered to modify the common law powers of the office of State’s Attorney.
In my view, it is unnecessary to reach the question whether the Legislature has the power to strip the office of State’s Attorney of all of its powers and transfer them to another, perhaps appointive officer. Woelfel v. State, supra, 177 Md. at 502-03, and Beasley, supra, 94 Md. at 656, indicate in dicta that the Legislature possesses such power. See Shute v. Frohmiller, supra, 90 P. 2d at 1004. The Kentucky Court of Appeals, however, in Johnson v. Commonwealth, supra, 165 S.W.2d at 829, expressed the view that to so strip the office of its powers that it be “left without substantial duties, responsibilities and rights” would violate the constitution. Suffice it to say, the State Prosecutor Act has no such effect.
I would hold that nothing in Article V, section 9 of the Constitution prevents the Legislature from transferring the necessary power from the State’s Attorney to the State Prosecutor to enable the latter to initiate prosecutions in the enumerated class of cases. Judge Eldridge authorizes me to state that he concurs in the views expressed herein.
. The court in Johnson found 27 jurisdictions with constitutional provisions dealing with the office of Attorney General and containing language similar to that contained in Article V, section 9. Only two jurisdictions, Illinois and North Dakota, were found where the result was the same as that reached by the majority here.