Beasley v. Ridout

Pearce, J., delivered the opinion of the Court. By ch. 15 of the Acts 1901, the charge, control, and supervision of the Anne Arundel County jail, and of all persons committed thereto, was taken from the Sheriff of the county, and was vested in a Board of Visitors provided by that Act. The immediate care and custody of the jail, and of all the prisoners is committed to a warden appointed by, and subject to the direction of, said Visitors, but with the same powers in that regard as were possessed by the Sheriff, and with the same liability for escapes or other neglect of duty. ■Upon the appointment of said Visitors, demand was made by them upon the Sheriff for the possession and custody of the jail and of the prisoners therein, which was refused by the Sheriff, who alleges that the Act of Assembly in question is unconstitutional and. void. Thereupon the Visitors applied for a mandamus commanding the Sheriff to deliver possession, which being ordered by the Circuit Court, the Sheriff has brought this appeal.

The proceedings under the petition for the mandamus have not been conducted in the manner prescribed by the Code, no proof having been offered to sustain its allegations, although the Judge must be satisfied these allegations are founded in truth,.whether the petition is heard on general demurrer by ⁶⁴⁹ the respondent, or answer denying the allegations of the petition, or ex parte for want of answer. Legg v. Mayor of Annapolis, 42 Md. 223 ; Sudler v. Lankford, 82 Md. 148 . The respondents pleading is somewhat equivocal in form, but if it be regarded as an answer, it does not admit the facts alleged, and if it be regarded as a demurrer, or as in part an answer and in part a demurrer, the facts are not thereby admitted, that not being the effect of a demurrer in a proceeding for a prerogative writ like mandamus. Sudler v. Lankford, supra, 149 .

Subsequently certificates of the qualifications of the Visitors were filed, together with an agreement of counsel that all questions of law and fact should be submitted to the Court without the intervention- of a jury. Assuming for the present purposes that the judges were in the discharge of a judicial function, they would take judicial notice of their own appointment of three Visitors in compliance with the Act of Assembly, but the agreement mentioned could not supply proof of their meeting with the State’s attorney as the fourth member, their organization as required by the Act, and the election of Dr. Welch as the physician and the fifth member, all of which was indispensable to a legal demand upon the Sheriff" but none of which was admitted by the pleading. In the opinion of the Court however, it is stated that “at the hearing the questions of fact at issue were waived or admitted,” and we think this statement by the Court should be given the effect of an admission of record, and as equivalent to full proof. Whether an Act of Assembly is a valid exercise of legislative power, is, in all cases, a question, not of expediency or policy, but of power alone, as determined by the Constitution. “Questions of expediency, or utility, are matters for the exclusive decision of the Legislature, and cannot be regarded by the judiciary in testing the power to pass laws.” There is a presumption, moreover, that eveiy Act of the Legislature is 'within its power, and before any Act should be declared unconstitutional, its repugnancy to the provisions, or necessary implications of the Constitution should be manifest and free ⁶⁵⁰ from all reasonable doubt.

If its character in this regard be questionable, then comity and a proper respect for a coordinate branch of the government, should determine' the matter in favor of the action of the latter. These are the rules laid down by our predecessors in Mayor of Balto. v. State, ex rel., Board of Police of Balto., 15 Md. 376 , and by which we must be guided in our consideration of this case. The sole ground of objection to the validity of the Act in question made in the appellant’s brief, and the only one argued at the hearing, was that the office of Sheriff is a constitutional office ; that the Sheriff was an officer of the common law, and that when the Constitution of 1776 provided for the election by the people of a Sheriff for each county, without prescribe ing in express terms the powers and duties of the office, it must have been intended that the office should carry with it eo nomine, all the duties, powers and privileges appertaining to it at common law ; and that as the custody of the county jail, and the care of the prisoners therein, was the clear common law right of the Sheriff, the Legislature could not destroy of abridge that right, and confer it, in whole or in part, upon any other person designated by it—or by its delegated authority. There is certainly high authority for this contention where the Constitution is silent as to the powers and duties of the office.

In Sewell on the Law of Sheriff, page 7 (in 46 Law Library), it is said: “The custody of the gaols of counties is inseparable from the Sheriff; and therefore if the King grants the custody of such gaol to another, it is void ; for the Sheriff, being the immediate officer of the King’s Courts, and answerable for escapes, and subject to amercements, ought to have the appointment of such gaolers for whom he will answer. And he cannot be restrained himself in any part of his own power by theKing.” In Murfree on Sheriffs, sec. 41, it is said : “When the office of Sheriff is a constitutional office in any State, recognized and designated, eo nomine, by the Constitution, as a part of the machinery of the State government, the Sheriff, ex vi termini, ⁶⁵¹ must possess in that State, all the substantial powers appertaining to the office by common law. It is competent for the State Legislature to impose upon him new duties growing out of public policy or convenience, but it cannot strip him of his time honored and common law functions, and devolve them upon the incumbents of other offices created by legislative authority;” though the author admits that “itwould be competent for the British Parliament to modify, limit or enlarge the rights and duties of Sheriffs within that kingdom, or to abolish the office altogether, and distribute es functions among other officers; and that a like power is no doubt vested in constitutional conventions of the several American States, by which the constitutions and organic laws of those States are from time to time changed and amended.” The views thus expressed are sustained by Courts of high authority. In New York the Constitution of 1821 provided that clerks of counties, including the city and county of New York, should be chosen by the people, but made no reference to their powers and duties.

The Act of 1843 provided that the clerk of the Court of Common Pleas for the city and county of New York should be appointed by the Court, and should act as county clerk. The question arose in Warner v. People, 2 Denio, 272 , whether the Act was constitutional, and it was held that it was not. Judge Bronson said: “ In effect, the statute divides the office of the clerk of the city and county of New York into two parts, and as to the largest share in point of duty and emolument, takes the choice of the officer from the electors of the county, and gives the appointment to the Court. If this can be rightfully done, I do not see any security for the rest of the office.” Chancellor Walworth said: “ When the Legislature assumes the power to take from a constitutional officer the substance of the office itself, and to transfer it to another who is to be appointed in a different manner, and to hold the office by a different tenure than that which is provided by the Constitution, it is not a legitimate exercise of the ⁶⁵² right to regulate the duties or emoluments of the office, but an infringement upon the constitutional mode of appointment.” In People v. Albertson, 55 N. Y. 57 , the Court of Appeals said “ The Constitution cannot be evaded by a change in the name of an office, nor can an office be divided and the duties assigned to two or more officers under different names, and the appointment'-to the offices made in any manner, except as authorized by the Constitution.” The Constitution of New York of 1844', then in force, did not mention the powers and duties of Sheriff, and the Act of 1882 provided that the Albany County Penitentiary should thereafter’be the-county jail, and required the Sheriff to remove the prisoners from the jail to the penitentiary, and made the superintendent the jailer,Requiring him to give bond to the Sheriff for the discharge of the duties as jailer, but did not release the Sheriff from liability for escapes or from amercements.

This Act was drawn in question in People v. Keeler, 29 Hun. 175 , and was held unconstitutional, because it deprived the Sheriff of common law powers-and duties pertaining to his office, and violated the provision requiring the Sheriff to be elected by the people! The same was held in Wisconsin as to a Sheriff, in State v. Brunst, 26 Wis. 412 , for the reasons stated in Warner v.People, and People v. Keeler, supra; and as to a constable, in Allor v. Wayne County, 43 Mich. 76 , for analogous reasons. All those cases were reviewed in the recent case of Virtue v. Board of Free Holders of Essex County (N. J.), 50 At. Rep. 360 , and the principles there announced were approved and adopted, and an Act transferring the custody of the Essex County Jail to the Board of Free Holders, was held unconstitutional, notwithstanding it had been assumed to be constitutional in this regard, in several other decisions, where this particular objection had not been raised.

In all of these cases it will be seen that the Constitutions of the several States made no reference whatever to the powers and duties of the office, while in Maryland, the Constitution of 1864-introduced the language, retained in the present Constitution, which after requiring the election of a Sheriff for each ⁶⁵³ county every two years, directs that “ he shall exercise such powers and perform such duties as are now or may hereafter be fixed by law.” But before entering upon the consideration of the effect of this change in the language of the Constitution, there are two cases which should be noticed, taking the opposite view from those we have already cited. The first of these is Hoke v. Henderson, 4 Devereaux, 1, decided in 1833 by the Supreme Court of North Carolina when that Court was presided over by Chief Justice Ruffin, and in which he delivered an opinion of great ability and learning. It was there held, contrary to the established rule at the present day, and to the current and weight of authority at that time, that an office is the property of the incumbent. The office in question was that of Clerk of the Superior Court of Lincoln County, an office recognized in the Constitution, but not having the tenure prescribed thereby.

In 1806, Superior Courts were established by law, and the Judges were authorized to appoint clerks to hold during good behavior. Hoke held under such an appointment. The Act of 1832 provided that these clerks should be elected, and Henderson was returned elected under the Act, but was denied the office by the Court. The purpose of referring to the case, is to show that while holding Hoke could not be so ousted, it was also held that “prescribing the duties of officers, their qualifications, their fees, their powers, and the consequences of a breach of duty, including punishment and renioval, are all political regulations and fall within the legislative province. * * * * That the creation of an office is a question of political expediency, and so are the duties, perquisites and punishment of the officer. * * * By consequence they are the subjects of legislative regulation.

If the Legislature increase his duties and responsibilities, or diminish his emoluments, he must submit, except in those cases where the Constitution has itself declared the duty and fixed the compensation, because in the nature of things, these are the subjects-of such regulations as the general welfare may from time to time dictate, and the office must therefore have been conferred and accepted subject to such regulation.” ⁶⁵⁴ The second case is The State v. Dews, R. M. Charlton’s Rep. 397, in which an exhaustive and able opinion was delivered, holding that a Sheriff in Georgia was entirely a ministerial officer whose province is to execute duties prescribed by law, and which duties may be contracted or enlarged at the will of the Legislature. The Constitution was silent as to the powers and duties of the Sheriff, but the custody of the Chatham County Jail was vested by the Act of 1822, in the Sheriff In 1834 an Act was passed appointing the Mayor and Aldermen of Savannah, Commissioners of the jail, with power to appoint a jailer. The Sheri ft refused to-surrender possession, which the Court ordered in proceedings for mandamus. Speaking of the rights and duties of the office of Sheriff, the Court said : “Those duties, which are the mere creatures of the law, resulting from the legislative sense of the public interests, are not his private'concern, and may be modified, increased, or diminished at the pleasure of those, in whom the power of legislation resides ; and since such increase or diminution does not interfere with his title to the office, nor trench upon his right to execute its duties, no in-" jury is done him. - If he sustains