County Commissioners v. Mitchell , 97 Md. 330 ( 1903 )

This is an appeal from a decree overruling a motion to dissolve an injunction, issued against the appellants at the instance of the appellee, and making the injunction perpetual. Chap. 455 of the Acts of 1902, provides "that the court house and grounds attached thereto of Upper Marlboro, Prince George's County, Maryland, be and the same are hereby placed under the care, custody and control of the crier of the Circuit Court for said county, who shall be at said court house daily to see that it is properly cared for" and allows him a compensation of $200.00 to be annually levied by the County Commissioners of that county in addition to the eighty dollars now paid him for his services as crier. The appellee is the crier of the Court and the bill prays that the County Commissioners be enjoined and prohibited "from in any manner interfering with your orator in the discharge of the duties imposed upon him by the Act of Assembly herein mentioned, or from repairing or in any way exercising control over the court house and grounds attached thereto, in Upper Marlboro, Prince George's County, Maryland, and from refusing to give your orator free access to all portions of said court house necessary for him in exercise of his duties, as aforesaid, and from refusing to deliver to your orator any and all keys necessary for him to have, in order that he may fully do his duty as custodian of said court house and grounds." The injunction was issued as prayed.

The appellants contend that the Court below erred, first, because the complaint of the appellee involves the title to a public office, which is not cognizable by a Court of equity, and, second, because the Act of Assembly is unconstitutional. The latter question being the more important one, we will proceed at once to the consideration of that. No point was made at the argument about the language of the statute which refers to the "court house and grounds attached thereto of Upper Marlboro," etc., but it seemed to be assumed that it referred to the court house of the county, and hence we will not stop to discuss that language. Section 1 of Article seven of the Constitution, as amended, after providing for the election of County Commissioners in 1891, reads "their number in each county, their compensation, powers and duties, shall be such as now or may be hereafter prescribed by law; they shall be elected at such times, in such numbers and for such periods not exceeding six years, as may be prescribed by law." Section 1 of Article 25 of the Code of Public General Laws provides that "The County Commissioners of each county in this State are declared to be a corporation, and shall have full power to appoint judges of election, road supervisors, collectors of taxes, trustees of the poor, a clerk to their board, and all other officers, agents and servants required for county purposes, not otherwise provided for by law or by the Constitution, and they shall have charge of and control over the property owned by the county," etc. Under the above section of the Constitution, there is no doubt that the Legislature may pass laws changing the powers and duties of the County Commissioners so long as such laws do not conflict with some other provision of the Constitution, and there have been many changes since the section of the Code just quoted was adopted. They no longer appoint judges of election and in may of the counties some of the other officers named are otherwise selected. It may therefore be conceded for the purposes of this case (although we do not so determine, it not being necessary) that the Legislature could commit a county building, such as a court house, to the "care, custody and control" of some one other than the County Commissioners, but the question is whether it can confer such powers and impose such duties on the crier of the Court as are attempted by this statute. Since the decision in Beasley v.Ridout, 94 Md. 641, it could not be contended that a statute which provided for the appointment by the Circuit Court of some one to have the care, custody and control of the court house and grounds attached, would be valid. The statute then under consideration provided for the appointment, by the Judges of the Fifth Judicial Circuit, of visitors to the jail in Anne Arundel County, and this Court held that the provision requiring such appointment was unconstitutional because in violation of the Declaration of Rights, Article 8, which declares that no person exercising the functions of the legislative, executive or judicial department of the government shall assume or discharge the duties of any other. In speaking of that statute the Court said: "No argument is needed to show that the duty thus sought to be imposed is not judicial, and that in making these appointments the Judges were not performing a judicial function." See also the recent case of Board of Supervisors v. Todd et al., ante p. 247. Those cases and others cited in them leave no room to doubt that the Judges of the Circuit Court could not properly be required or authorized to appoint a person to discharge the duties contemplated by this statute, and the question is, can they be required or authorized to do indirectly what they cannot do directly?

The office of crier has always been deemed one of some importance in this State. It is said in Evans' Practice, 33, that "The duty of the crier is to make proclamation, to assist in administering oaths, and generally to give facilities to the business of the Court during its actual session." He is usually required to be present during all the sittings of the Court, to formally announce the opening and adjournment of Court for the day or the term, as the case may be, by statute is required to give notice to the members of the bar of the time and place of drawing juries, and performs other important duties under the direction of the Judges. Each county Court of the judicial system of Colonial Maryland had a crier, as did the Provincial Court,Thomas' Chronicles of Colonial Maryland, 121, 145. As early as chapter 25 of the Laws of Maryland, 1779, his fees were regulated by statute, (Dorsey's Laws of Maryland, 152,) and although they were then payable in tobacco, most of the services for which the statute thus provided compensation are still enumerated in the Code of Public General Laws now in force, Art. 36, § 18. In many of the counties his compensation is fixed by local laws, and in some of them he is required to perform duties that were not originally imposed on him, but so far as they have been brought to our attention, they have not attempted to go to the extent that the one under consideration has gone. The present Constitution in sec. 9 of Art. 4, provides that "The Judge or Judges of any Court may appoint such officers for their respective Courts as may be found necessary; * * * * It shall be the duty of the General Assembly to prescribe by law a fixed compensation for all such officers; and said Judge or Judges shall from time to time investigate the expenses, costs and charges of their respective Courts, with a view to a change or reduction thereof, and report the result of such investigation to the General Assembly for its action." Without that provision the Judges would undoubtedly have the power to appoint such officers as are necessary for the proper conduct of the business of their respective Courts, but it shows that the subject was regarded by the framers of the Constitution as of considerable importance, as they inserted an entire section in reference to it. It was not intended that such an officer of the Court as a crier was to have "the care, custody and control" of the court house and grounds attached thereto. To impose such duties on him would necessarily require some of his time that the Court would be entitled to, as crier. In that way his usefulness as crier might be seriously interfered with. If he had simply been required to attend to the courtroom and other rooms connected with the Circuit Court, it would have been more in line with his other duties, but the record shows that this building is not only used by that Court but by the Orphans' Court, the County Commissioners and the treasurer, and in most, if not all, of the counties of this State, the court house is used by most of the county officers. The general law gives the County Commissioners "charge of and control over the property owned by the county" (sec. 1 of Art. 25); "they may sue for any injury done to the property of the county, or to recover possession thereof, or may be sued by any claimant of such property," (section 4), they are required to "provide for the support of the Courts * * * * and pay and discharge all claims on or against the county which have been expressly or impliedly authorized by law," (sec. 7) but under the interpretation placed on this statute by the appellee and the Court below, they are prohibited "from repairing, orin any way exercising control over the court house and groundsattached thereto." With that injunction in force they could not insure the building or institute proceedings to eject a trespasser from the grounds, and cannot even have control of their own room, although the legal title to the property is vested in them. If the statute must be so construed, it would unquestionably be invalid, irrespective of the question whether it imposes non-judicial functions on the judges, and inasmuch as the injunction granted does contain such prohibitions the decree would have to be reversed for that reason.

But we are of the opinion that it is unconstitutional because it does require the Judges to discharge non-judicial functions — indirectly it is true, but just as objectionable as if directly done, and possibly more so. The Judges alone have the power to appoint criers of their respective Courts. If there was ever any question about that, the Constitution has settled it. The Legislature cannot compel them thus indirectly to appoint the custodian of the court house and grounds, by providing that the crier shall be such custodian, nor can it interfere with the Court by requiring its officer to discharge other duties which may prevent him from properly performing the duties that belong to the office of crier. A person may be well qualified to act as crier, but may be utterly unfit to be custodian of the court house and grounds, or one who may be competent to have the care, custody and control of that property might not be at all suited to the discharge of the duties of a crier. Yet if this statute is to be enforced, whenever the Court is called upon to appoint a crier, it must select one who is qualified for both positions, which certainly could not always be done for such compensation as this statute fixes.

Without discussing the other grounds relied on by the appellants we must for the reasons given reverse the decree, but as the record does not disclose that the appellee was in anywise responsible for the passage of the statute, we think that the county should pay the costs.

Decree reversed, and the bill of complaint dismissed, theappellants to pay the costs.

(Decided June 29th, 1903.)