State v. Manly

Eccleston J. delivered the opinion of the court. The 1st sec. of the 8th article of the new constitution, makes Howard District a county, calling it Howard county; and declares that the inhabitants thereof, shall have and enjoy all such rights and privileges as are held and enjoyed by the inhabitants of the other counties in this State; and that is, civil and municipal officers, at the time of the ratification of the constitution, shall continue in office until their successors shall have been elected or appointed, and shall have qualified as such. The meaning of which surely is, that the civil and municipal officers of Howard District, shall continue in officer as such, until the election or appointment of officers under the new constitution. And that portion of the same article [140] which declares, that all rights, powers and obligations, incident to Howard District of Anne Arundel county, shall attach to Howard county, is gratified, so far as relates to the officers, by deciding the new county, to be entitled to their services, although continued in office, as the officers of Howard District, until the election of their successors. Such a construction would make this article harmonize with the 8th sec. of the 10th article, which provides that officers holding commissions, under the State, shall continue to hold and exercise their offices, according to their existing tenure, until they should be superseded. This has been construed to give the judges power to hold the county courts, through the State, and the Baltimore city court, until the election of new judges. But it has not been supposed that the style of either of the courts was changed, whilst the judges under the old constitution continued in office. In the proceedings before us, the court from whence they were removed, or intended to be removed, is called “Baltimore city court,” as late as September 1851. And yet, there would seem to be quite as much propriety, in calling the courts for the counties, circuit courts, and Baltimore city court, the criminal court of Baltimore, in consequence of the names given to the courts, under the new constitution, as to call the court of “Howard District of Anne Arundel county,” Howard county court. The style of the court for that portion of Anne Arundel county, is prescribed in the act of 1838, ch. 22, sec. 4, and there is no change made in it by the new constitution, other than what relates to the courts in other parts of the State. The expression, “all civil and military officers holding commissions under this State, shall continue to hold and exercise their offices, according to their present tenure, until they shall be superseded,” can only be gratified to any practical, useful extent, by giving it the construction, that they had all the powers which were given to them, by the old constitution and the laws under it, to be exercised in the same manner, unless altered by some clear and manifest provision in the new constitution. [141] If the act of 1838, ch. 22, had never been passed, and there never had been a separate court for Howard District, although the convention should have converted that district into a new county, with its present name, still the court of Anne Arundel county would have continued to exercise jurisdiction over the new county, under the new constitution, until the election of judges; but it must have done so, as the court of Anne Arundel county, and not of Howard county. Under this view of the subject, the court in September 1851, in Howard county, was held as the court of Howard District of Anne Arundel county. There was not then, and indeed there never has been, in this State, such a court as Howard county court. The order of Baltimore city court was to remove the case to “Howard county court,” and the recognizance taken was, for the appearance of the party before “Howard county court.” There being no such court in existence, the order of removal and the recognizance were null and void. And consequently the case was not removed from Baltimore city court, but remained in that court as if there had been no order of removal. We therefore think the court were right in refusing to forfeit the recognizance. It was contended in behalf of the State, and admitted by the counsel for the defendant, that this is a case in which a writ of error will lie. The correctness of this position, is sustained by the decision in 10 Gill and John., 365. State vs. Murphy and Thompson. Judgment affirmed.