In Re the Estate of Rickell

⁶⁶³ Sloan, J., filed a dissenting opinion as follows: The majority opinion in this case holds that to enforce the provisions of the Act of 1929, chapter 74 (Code, art. 65, secs. 56A to 5617), would not violate the constitutional rights of any of the persons whom the act wa.s intended to benefit, nor amount to a surrender of judicial power by a state court to a federal administrative official. The federal act, cited as “the World War Veterans’ Act, 1924,” IT. S. Code, Annotated, title 38, sections 421 to 683, which was “intended to provide a system for the relief of persons who were disabled, and for the dependents of those who died as a result of disability suffered in the military service of the United States between April 6, 1917, and July 2, 1921” (section 422), provided for its administration through the “Director of the United Veterans’ Bureau,” who “shall administer, execute and enforce the provisions of this chapter, and for that purpose shall have full power and authority to make rules and regulations not inconsistent with the provisions of this chapter, which are necessary or appropriate to carry out its purposes, and shall decide all questions arising under this chapter, and all decisions of questions of fact affecting any claimant to the benefits of parts II, III or IV of this chapter (compensation, treatment, insurance and vocational rehabilitation), shall be conclusive except as otherwise provided herein.” The decisions cited by the majority opinion, that Congress had the authority to pass such an act, are not disputed, as the state courts are bound by such decisions affecting the validity of any federal statute. Intending to aid in the administration of the World War Veterans’ Act, the Legislature of Maryland passed the Act of 1929, chapter 74, providing for the appointment of guardians for those who in the judgment of the director of the Veterans’ Bureau were incompetent to receive benefits under the federal act by reason of age or mental incapacity.

With the purposes of the act there can be no difference of opinion, and, if it violates no constitutional right of a citizen or confers no judicial power on an administrative official or legislative ⁶⁶⁴ agent or unlawfully interferes with the powers and functions of the courts of the state as an independent branch of the state government, there would be no cause of complaint with the majority decision. As was so well said by the chancellor in this case: “It is a rule of constitutional law that the grant of judicial power to the department created for the purpose of exercising it must be regarded as an exclusive grant covering the whole power, subject to the limitations which the constitutions impose, and to those exceptions which are incidental, necessary or proper to the exercise of legislative or executive function. Cooley on Constitutional Limitations (5th Ed.), 176. “In complete harmony with this statement of the law is the Constitution of Maryland, which creates a judicial system and makes it the repository of all judicial power and then assures its complete independence and freedom in the determination of justiciable questions by declaring that ‘The Legislative, Executive and Judicial Powers of government ought to be forever separate and distinct from each other, and no person exercising the function of one of said departments shall assume and discharge the duties of any other.’ Maryland Declaration of Eights, art. 8. This language is explicit and mandatory, and the courts, obedient to its command, have intervened whenever an encroachment came to their attention.

Beasley v. Ridout, 94 Md. 641 ; Crane v. Meginnis, 1 G. & J. 463 ; The Chancellor’s Case, 1 Bland, 595 , 672. “So it is a commonplace of our jurisprudence that the Legislature may not assume judicial power. Miller v. Fiery, 8 Gill, 145 ; Baltimore v. Horn, 26 Md. 194, 206, 207 ; Dorsey v. Gary, 37 Md. 64, 79 ; Roche v. Waters, 72 Md. 264, 272 ; Queen Anne’s County v. Talbot County, 108 Md. 196, 199 ; Harris v. Allegany County, 130 Md. 488, 491, 494 . “As a necessary corollary to this constitutional provision, the Legislature may not delegate a judicial function to an executive or administrative department, nor encroach upon the province of the judicial branch of government by de ⁶⁶⁵ priving a court of the jurisdiction conferred by tbe Constitution. Tbe plenitude of the judicial power in protecting tbe individual in bis life, liberty or property is not to be impaired by legislative usurpation. “It was early stated in Prout v. Berry, 2 Gill, 147, 150 , tbat tbe Legislature must leave tbe mode or manner of administering justice untrammeled. State v. Northern Central Ry.

Co., 18 Md. 193, 210 ; Dorsey v. Dorsey, 37 Md. 64, 77 . Since it is a judicial function to bear and determine those matters which affect tbe liberty or property of a person within tbe state, it follows tbat tbe Legislature of Maryland cannot empower a federal executive or administrative bureau or any of its officers to determine by a ruling tbe minority or incompetence of a citizen of Maryland, and thus deprive tbe state courts of Maryland of their jurisdiction in such justiciable matters. Xor can tbe General Assembly make tbe efficacy and operation of a judgment or decree of tbe court of competent jurisdiction depend upon tbe sanction, or concurrence of any executive or ministerial officer, or of any class of persons charged with tbe performance of nonjudicial duties. Tbe judicial power granted by tbe Constitution to designated tribunals of its own creation, or inherent from tbe nature of their functions, can neither be abrogated nor abridged by legislative enactment.

Any legislative device is void if it thwart or impair tbe jurisdiction of a constitutional court. If this were not sound legal doctrine, tbe three-fold separation of governmental power would be swept away and there would be no check upon tbe supreme, arbitrary and unmeasured power of tbe legislature. Supra; and State v. Mace, 5 Md. 337, 349 ; Declaration of Rights, articles 5, 19, 20, 23; Constitution, art. 4, secs. 1, 20, 29; Flanigan v. Guggenheim Smelting Co., 63 N. J. L. 647, 650; Smith v. Livesey, 67 N. J. L. 269; Public Service El. Co. v. Board of Public Utility Comrs., 88 N. J. L. 603; Ex parte Thompson, 85 N. J. Eq. 221, 290; In re Walker’s Estate, 95 N. J. Eq. 619; Adams v. State, 156 Ind. 596 ; State v. Noble, 118 Ind. 350 ; Greenough v. Greenough, 11 Pa.

St. 489; Flynn ⁶⁶⁶ v. Central Ry. Co., 142 N. Y. 439 ; Alexander v. Bennett, 60 N. Y. 204 ; Marvis v. Marvis, 215 N. Y. Supp. 43 ; Dexter Yarn Co. v. Amer. Fabric Co., 192 Conn. 529 ; Kilbourn v. Thompson, 103 U. S. 168 , 26 L. Ed. 377, 387 ; Murray v. Hoboken Land & Imp. Co., 18 How. 272 , 15 L. Ed. 372, 377 ; Denny v. Mattoon, 2 Allen (Mass.) 361, 378.” It is provided by section 56D of the Act of 1929 that, “in the case of a mentally incompetent ward, the petition shall show that snch a ward has been rated incompetent on examination by the bnrean in accordance with the laws and regulations governing the burean,” and by section 56F, that “Where a petition is filed, for the appointment of a guardian of a mentally incompetent ward, a certificate of a director or his representative setting forth the fact that such person has been rated incompetent by the bureau on examination in accordance with the laws and regulations governing such bureau; and that the appointment of a guardián is a condition precedent to the payment of any moneys due such person by the bureau shall be prima facie evidence of the necessity for such appointment.” There would be little room for criticism of the act from a state point of view, if.it merely provided for payment to a guardian after a determination of the competency of the soldier by an inquisition, and then left the guardian or committee under the untramm’eled direction of the court.

This was the condition under which the Civil War Pension Act, in the cases of the mentally deficient and minor dependents, was satisfactorily administered for more than sixty years. Hnder the Act of Congress and the Act of 1929, the determination of the soldier’s competency is made by the director of the Veterans’ Bureau, and nowhere in the Act of 1929 does it appear that his action is subject to review. Section 56E does not say that the certificate of the director shall be prima facie evidence of the ward’s incompetency, which would ordinarily mean that it might be rebutted, but that it “shall be prima facie evidence of the necessity for ⁶⁶⁷ such appointment.” The soldier has already been declared or rated incompetent, and the appointment of a guardian is a condition precedent to the payment of any money. Before the petition is filed every question necessary to the appointment is settled and determined by the director.

The mere appointment of a guardian is a perfunctory act which does not call for the decision of any hum&n rights. To have the power, however, to appoint such a custodian of one’s property must be predicated on some act or proceeding the effect of which is to preserve or take away one’s liberty and the right to enjoy or to take away the possession and control of his property. That this is a judicial act requires the citation of no authority. Whether it can or cannot be done without notice, an opportunity to be heard, and the judgment of a jury, is an irreconcilable difference between those who support the accepted opinion and those who disagree with it.

The only support cited for the decision is the case of Rebecca, Owings’ Case, 1 Bland, 272, where Chancellor Bland said: “Generally and technically speaking, those only are called lunatics who have been so found and returned. Without an inquest and return" thereon no one can be judicially treated as a lunatic and be debarred of his liberty, or have the management of his property taken from him. * * * But, although this court will in no case undertake to go all lengths and to confine or dispose of the person of anyone as a lunatic until he has, upon solemn inquisition, been found to be non compos mentis, yet it will grant relief and protection to such persons without and previous to their being adjudged to be non compos.” The only application of the last clause quoted to the facts was that the chancellor permitted the proceedings to go on with Rebecca Owings’ sister, ITrath Cromwell, and brother-in-law, John Cromwell, as coplaintiffs, they having joined with her to recover for her the funds left for her benefit by her mother and father, the exception to the rule as stated having no application to the merits of the case or the facts decided. Samuel Owings had died leaving by will a large portion of ⁶⁶⁸ his real estate to Lis son, William Owings, to “hold tLe same to Lim;, tLe said William Owings, Lis Leirs and assigns forever, upon these express conditions, that Le or they, or the person or persons to whom the estate devised to the said William Owings may eventually pass, maintain my daughter Rebecca, or pay sixty pounds current money a year for Ler maintenance during Ler natural life.” TLe suit was brought to recover from William Owings the annual sums of money which Le Lad failed to pay for or on account of Lis sister Rebecca, and which were decreed to be paid by Lim to John Cromwell and Urath Cromwell, who were appointed trustees to carry out the provisions of the will of John Owings because William Owings Lad failed to do so, the Cromwells already acting under a similar trust mjade by the will of the motLer, an appointment confirmed by the chancellor. TLat was a situation which could not Lave been affected by any lunacy proceedings, as the status of Ler property rights Lad been determined by the wills of Ler father and motLer, and all that was said in the opinion of the chancellor about the appointment of trustees for the protection of Ler estate without an inquisition de lunático was -superfluous and aside from the purpose of the proceeding, which was for the appointment of trustees to execute a trust which to that time Lad failed because the trustee named in the will of the father Lad not performed the duties required of Lim.

Although the dictum of Chancellor Bland Las been stated as a rule in several cases which Lave come to this court, it has_ never been applied in any of them until its citation in the present case as authority for the appointment of a committee or guardian of an incompetent without an inquisition. In Hamilton v. Traber, 78 Md. 26, 29 , this court, in an opinion by Judge MeSherry, wherein the history of the law applicable to such a case as this was reviewed, said. “Lunacy or mental unsoundness did not give the English Court of Chancery jurisdiction over the person or "estate of a lunatic until after an inquisition of a jury adjudging the person to be non compos mentis Lad been regularly found.” In Ex ⁶⁶⁹ parle Estate of Bristor, 115 Md. 614, 619 , it is said: “A finding of insanity by the jury is advisory and is a prerequisite to an adjudication by the court to that effect, but it is not conclusive as against the objection of the party protesting his competency and invoking the court’s own judgment upon this vitally important question.” The case of Royal Arcanum v. Nicholson, 104 Md. 472 , had in it every element which is present in this. Edwin 0. Nicholson, who was a member of the Royal Arcanum, had died leaving a three thousand dollar benefit certificate wherein his wife, Camilla D. Nicholson, was named as beneficiary.

She had been adjudged insane by a jury. Her committee sued the Royal Arcanum to recover the amount of the policy. Mrs. Nicholson and the Royal Arcanum filed a petition in the lunacy case praying that the writ de lunático inquirendo and the return thereon be quashed on the ground that the alleged lunatic had been ad judged, without notice or an opportunity to be heard, and this court, in answer to that proposition, said: “We are clearly of the opinion that upon the general principles of law the supposed lunatic is entitled to reasonable notice. If he be in fact a lunatic, the notice would be undoubtedly useless, but that is the very question to be tried and until a regular trial is had and inquest made, the presumption is in favor of sanity.

The consequences resulting from the determination are of the most momentous character, both personally and pecuniarily, and so long as it is possible that a sane person might, upon an ea; parte examination, be found to be insane, every principle of justice and right requires that he should have notice and be allowed to make manifest his sanity and to refute and explain the evidence tending to prove the reverse,” pages 482, 483. Hamilton v. Traber, 78 Md. 26, 29, 34, 35 . In Royal Arcanum v. Nicholson, there was just as sound a reason for invoking the dictum, of the 0 wings case as there is in the instant case. In that case there was a fund, just as there is here, provided for the benefit of the alleged incom ⁶⁷⁰ petent, and without the intervention of a jury this court could have said a jury was not necessary and have said it should have been paid to the committee for her protection.

But no! Judge Burke, speaking for this court, said: “Until a regular trial is had and inquest made, the presumption is in favor of sanity,” and if found sane the beneficiary would be entitled to the proceeds of the certificate. The Act of 1929, chapter 74, by section 56G- does say: “Upon the filing of a petition for the appointment of a guardian under the provisions of this sub-title, the court shall cause such notice to be given as provided by law.” Notice of what ? That a petition has been filed and that the .appointment of a guardian is prayed for the soldier.

No opportunity or right here to the soldier to ask for a jury to adjudge him sane or insane. An administrative official at Washington has already determined that, and his acts are not subject to review by our courts. If the court conducts an inquiry into the mental competency of the ward, and decides that he is sane, it might mean that the soldier’s compensation would be withheld by the director and the purpose 'of the law defeated, as the court could not tolerate the administration of a sane man’s estate by a committee in lunacy. Greenwade v. Greenwade, 43 Md. 313, 315 .