State v. Shillinger , 6 Md. 449 ( 1854 )

Tuck, J.,

delivered the opinion of this court.

Philip Shillinger was indicted in the criminal court of Baltimore city for selling liquor on Sunday. Upon his suggestion and affidavit, the criminal court ordered the record of proceedings to be transmitted to the circuit court for Howard county. The traverser, by his counsel, moved “that the cause be remanded to the criminal court of Baltimore city,” upon the ground “that the circuit court for Howard county had no jurisdiction — Howard not being an adjoining county to Baltimore city.” Upon this motion the circuit court ordered the record to be returned to the criminal court, “being of opinion that the said court had no jurisdiction in said cause.” The ca^e is now in this court on a writ of error.

It has been decided by this court, in Wright vs. Hamner, 5 Md. Rep., 370, that Baltimore city and county are separate and distinct parts of (he State for purposes of government. The city is no longer a part of the county for such purposes, but must be regarded as an adjoining jurisdiction. Upon this' view of the relation of the city and county to each other it was held, that a civil case might be removed from the Superior Court of Baltimore city to the circuit court for the county. It cannot, be maintained, that the city is separate from the county as to the civil jurisdiction of its courts, and a part of it as to the administration of criminal law. The proviso in the 28th section of the 4th article of the constitution does not affect the point before us. The power of removal to any adjoining county in criminal causes is general. In civil cases it is restricted to an adjoining county within the circuit, except as to the city of Baltimore, whose courts arc authorised to remove' such cases to an adjoining county, because otherwise there could be no removal in these cases, inasmuch as the city of Baltimore is a distinct jurisdiction and does not form a part of any judicial circuit. The removal cannot be sustained under this section of the constitution.

But it is said on the part of the State, that because Baltimore and Howard counties adjoin, the removal may he made in virtue of the 13th section of the 4th article, which confers on the criminal court all the jurisdiction exercised by the former Baltimore city court, and, without doing violence to the 28th section, limiting removals to adjoining counties in criminal cases. It is true, that under the constitution and laws prior to the present constitution, Baltimore city court had power to remove indictments to counties adjoining Baltimore county and to Howard District. Price vs. State, 8 Gill, 308. Stewart vs. State, 1 Md. Rep., 134. But the question here is, whether that power has not been restricted by the constitution? If we give this construction to the 13th section, we should nullify that provision which expressly limits temovals to adjoining counties; whereas, by interpreting it as restrictive of the right previously exercised, and as placing causes in the ciiminal court on the same footing with indictments in other courts, both clauses may well stand together, and be more consonant with the separate and distinct character which the city of Baltimore now sustains towards the counties of the State under other clauses of the constitution.

It is immaterial whether the right is founded on the common law, or derived from the constitution, so far as concerns this question. Its exercise by the courts is regulated at present by the constitution, and until some “further remedy in the premises be provided by Jaw,” the courts must be governed by its provisions.

Concurring with the court below in its opinion that the record was improvidently transmitted to Howard county, we affirm the j udgment. Judgment affirmed.