(108 A.)

It may be that it might still be raised by an [or writ of error, or of its own motion, and it indictment for violation of that section, but is not necessary that the question of juristhat would probably result in bringing the diction shall have been raised below, as secquestion back to this court for determination, tion 9 of article 5 of the Code does not apply if a grand jury would, or properly could, in- to such question: Kinnear v. Lee, 28 Md. dict the appellee under the circumstances. 488, Armstrong v. Hagerstown, 32 Md. 54, The appellants did everything they could to Travers v. Dean, 98 Md. 72, 56 Atl. 388; U. have the case heard by us before the expira- S. Express Co. v. Hurlock, 120 Md. 107, 87 tion of the 15 days, and the appellee opposed Atl. 834, Ann. Cas. 1915A, 566, and cases rethe application to have the case advanced. ferred to in them. On the general question of the right of appeal, see, also, Hendrick v. State, 115 Md. 552, 81 Atl. 18, and Stephens v. Crisfield, 122 Md. 190, 89 Atl. 429; and in Beasley v. Ridout, 94 Md. 641, 52 Atl. 61, in which article 8 of Declaration of Rights was involved, this court acted sua sponte.

But beyond what we have said, the lower court can still grant another license during this year, and continue to grant them from year to year, as long as the present statute remains in force, and it would not be just to it to leave the question undetermined, if there be no other reason why we cannot review the decision of that court. The reply of the appellee to the motion of the appellants to advance the hearing states that in the fall of 1917, the spring of 1918, and again in the fall of 1918, applications were made by the appellee for licenses, and after protests they were granted, but no appeal was taken. If the appellee's position is correct, the same objection might have been urged in those cases, if appeals had been taken, as they probably could not have been heard before the expiration of the times fixed for racing, unless the appellee consented to having them advanced. It might therefore go on indefinitely, without giving those claiming to show cause an opportunity to have the decision of the lower court reviewed, which, if they are otherwise entitled to appeal, ought not to be denied them on the theory that it becomes a moot question after the races are

over.

The main question in this case is an important one-not, however, for all of the reasons given by the appellants, some of which their attorneys must know, if the other appellants do not, that we cannot properly consider, and some of the statements made in their brief, as well as in the protest against the license, should not have been made. There is not a word in the record to justify them, and, while there is no evidence on the subject, several of the incorporators of the appellee are members of this bar in good standing, and there is no reason whatever for this court to assume that the other incorporators of the appellee, or those who signed the recommendation, are not good citizens and honorable men, and entitled to as much consideration by the court as the appellants are. The question before us is purely one of law, and we have no right to be governed by anything else, whatever our individual views may be as to betting on horse races, or the wisdom of such legislation as is before us.

[2] There would seem to be no doubt about this court having jurisdiction to hear the ap- In Ag. Soc. of Mont. County v. State, 130 peal. The answer by the appellee to the ap- Md. 474, 101 Atl. 139, Judge Constable repellants' contention that the lower court was viewed the legislation in this state in refprohibited by the Constitution of the state erence to gaming on races, and hence we need from granting the license is that the court not do so again. In that case we did not acted judicially, and not merely in a minis- deem it necessary to decide whether the terial capacity, and that hence article 8 of present statute imposed a judicial or a nonthe Declaration of Rights ("that the legisla- judicial duty upon the courts, because it was tive, executive and judicial powers of govern- shown that the society had not made appliment ought to be forever separate and dis- cation to the court for a license for the time tinct from each other; and no person exer- involved, and hence it became immaterial to cising the function of one of said departments decide that question. But it is now before shall assume or discharge the duties of any us in a way which requires us to determine other") was not infringed upon by the action it. We can appreciate the feeling that all of the court. If that be correct, then the ap- judges have when called upon by statute to peal in this case will not lie, as no appeal do some act which is alleged to be nonjuis provided for in the statute, under which dicial, or when there is a question as to the the proceeding was taken, and no other right to perform the duties imposed on them ground for the appeal is relied on; but, if by the statute. They do not want to disthe action of the lower court was prohibited regard the provisions of a statute, if they can by the Constitution, then it had no jurisdic- constitutionally perform the duties, and they tion to grant the license, and this court can naturally hesitate about declining to act until entertain an appeal from its action. We the question is definitely settled. They theremight refer to many more cases, but the fol- fore sometimes do act and, it may be, feel lowing are sufficient to show that, if the low-bound to act until this court passes on the er court is without jurisdiction to act, this validity vel non of the statute. When then court can review its action, either on appeal such a question can properly be determined

by us, it is not only our right but generally our duty to do so, and it is only just to the judges who have been, or may be, called upon to act under this statute to pass on its validity.

"Nothing in the next preceding section shall render it unlawful in any county of this state, other than Baltimore City, for any person or persons to make a pool or a book, or to bet within the ground of any agricultural association, race course or driving park, upon the result of any trotting, pacing or running race of horses which shall be held within the same grounds, race course or driving park upon which said person shall so make a pool or book, or shall so bet upon the same day on which said race shall be held; provided, the grounds of such agricultural association, race course or driving park be licensed in the manner set forth in the next succeeding section by the circuit court for the county within which such grounds or track may be located."

regulating the sale and granting of licenses for the sale of spirituous and fermented liquors in Carroll county. The applicant for a license was required to file his application "with the clerk" of the circuit court, setting The present law was passed in 1898, and out various things specified, and annexed to now embraces sections 217 to 221 of article the application there was required to be a 27, in third volume of Code, to which we certificate signed by at least nine reputable will refer. By section 217 it is provided that freeholders, bona fide residents of the neighit shall not be lawful for any person, asso-borhood, certifying to certain facts and recciation, or corporation "to bet, wage or ommending the issuing of the license. The gamble in any manner, or by any means, or clerk was required to give notice in a newsto make or sell a book or pool on the result paper that the application had been made, of any trotting, pacing or running race of and stating that unless cause to the contrary, horses or other beasts, or race, contest or in writing, was shown on or before a day contingency of any kind," etc., concluding by named, the license applied for would be isimposing a fine or imprisonment, or both, in sued, provided the applicant complied with the discretion of the court if convicted. But the requirements of the law. It was then by section 218 it is provided thatprovided that if any one filed with the clerk, in writing, and within the time specified, any reason why the license should not be granted, the clerk should forthwith present the application and certificate and the objection to a judge of the circuit court of the county, and that such judge should proceed to hear and determine the question as to whether the license applied for should be issued or not, after giving such notice to the applicant and the objector as the judge should deem reasonable, and should award the costs of such hearing as he should deem equitable and just. The statute then provided that if no cause be shown to the contrary, or if cause be shown and the judge should direct in writing that the license be issued, the clerk should issue the license upon receiving the fee required. McCrea filed an application for a license, and an objection was filed. The *application and objection were presented by his petition for such a license, and before the clerk to Hon. Charles B. Roberts, chief granting the said license the said court shall judge of the circuit court for Carroll county, cause notification of said petition to be pub- who set the case for hearing. At the hearlished," etc. Section 220 states what the pe- ing both sides were represented by counsel tition shall contain, "and there shall be an- and witnesses were examined, resulting in nexed to this petition a certificate signed by an order being passed by the court dismissat least twenty-five respectable qualified ing the application for a license. The applivoters of the election district of the county cant then applied for a writ of mandamus in which such grounds are located, praying against Judge Roberts, commanding him to the court to grant the said license." Section 221 prescribes what shall be stated in the license, "and the said court shall not grant in the aggregate license for more than thirty days in any year, nor more than fifteen days in any one month in any county in this state," etc. It then provides that there shall be paid to the clerk of the court granting the same the sum of $5 for each and every day for which said license shall have been granted, etc.

Section 219 provides that any person applying for a license as required by section 218 shall file "with the circuit court

The important question, therefore, is whether the statute imposes such nonjudicial duties on the courts as to prohibit them from performing them. The case of McCrea v. Roberts, 89 Md. 238, 43 Atl. 39, 44 L. R. A. 485, is very much relied on by the appellee.

pass an order rescinding and annulling the former order and directing that the application of McCrea be granted by the clerk. From an order overruling a demurrer to the defendant's answer and dismissing the peti tion, the appeal was taken.

Judge Briscoe delivered the opinion of the court, and, after citing a number of authorities and pointing out what Judge Roberts was required to do, held that the act was not unconstitutional, as requiring the performance by a judge of a duty not judicial in its nature, but that the order was passed in the performance of a judicial function and in the exercise of a sound judicial discretion. But a distinction between that case and the one now before us is so well shown that we will

(108 A.)

"But it will be observed that under the act [ power to grant a license, and it would seem of 1894, the license is not issued by the judge, to be equally clear that the court could not but when an objection is made to an application, be required to publish the notice. Can it be the duty of the judge is merely to determine, possible that the court can, notwithstanding upon a case at issue, whether the clerk shall issue the license, or not, according as the appli- article 8 of the Declaration of Rights, be recant is or is not found by him to be qualified quired to start a proceeding of this kind, under the law. In this respect, the case at bar which may or may not become judicial, even is clearly distinguishable from those cited in if it be conceded that there may be judicial argument by the learned counsel for the appel- functions if a protest be filed, depending upon whether somebody may object? Under such a statute as was involved in McCrea v. Robdo with the license, unless there was an oberts, the court would never have anything to jection, and a case was made up by reason of the objection; but in this case when the petition was filed the court, and not the clerk,

lant."

In the brief the appellant in that case cited the decision of Chief Justice Taney in U. S. v. Ferreira, 13 How. 47, 14 L. Ed. 42, Houseman v. Kent Circuit Judge, 58 Mich. 364, 25 N. W. 369, Supervisors of Election, 114 Mass. 247, 19 Am. Rep. 341, and other cases. The last two are particularly applicable to this case in some respects.

Judge Roberts did what many other judges have done in liquor remonstrance cases, which have arisen in counties where liquor was sold and similar provisions were con

tained in the local laws of those counties.

was to act.

county commissioners resisted the payment on the ground that the account had not been approved by the judges of the circuit court, as provided for in the statute. The judges of the court were divided as to the constitutionality of the law, imposing that duty on them, This court held that the statute, which reand hence the accounts were not approved.

If it can be done in this case, the Legislature can require the court to grant any other kind of license which for some reason it chooses to refer to the court. In Robey v. County Commissioners, 92 Md. 150, 48 Atl. 48, there was an application for a writ of But in the statute now before us the "judge," to compel them to take action and pay the mandamus against the county commissioners and not the "clerk," grants the license, and relator certain accounts for sums of money the distinction is directly within that made claimed by him as fees due for services renin McCrea v. Roberts. It is true that the ordered by him as sheriff of the county. The der appealed from in this case directed the clerk to issue the license, although it is not so provided in the statute; but the court simply had the clerk act for it, and the statute throughout refers to the granting of the license by the court, as shown by reference to the provisions referred to above. But if it could be conceded that in what was done after notice was given and cause was shown the court acted judicially, suppose no objec-quired the judges to approve the accounts tion had been made, the court would doubtless have granted the license as a matter of course, just as the clerk does in the liquor cases when no objection is filed. Can it be said that that is a judicial act? Did Mr. Belt, in Devin v. Belt, 70 Md. 352, 17 Atl. 375, act judicially when, as the court said in the opinion, "in the performance of a duty imposed on him by law [he] had to determine, before he issued a license, that the appellant was recommended by five persons; that those five persons lived in the immediate vicinity of his place of business; that they were freeholders; and that

before payment, imposed upon them a duty not judicial in its nature, and hence was unconstitutional under article 8 of the Declaration of Rights. In Beasley v. Ridout, 94 Md. 641, 52 Atl. 61, a statute provided that the control and supervision of the jail of Anne Arundel county and of the prisoners therein should be taken from the sheriff of the county and committed to a board of visiitors, three of whom were to be appointed by the judges of the court. This court held that the appointment of visitors by the judges was a nonjudicial function, and hence they the provision requiring such appointment was

See, also, Prince George's County v. Mitchell, 97 Md. 330, 55 Atl. 673, in which it was held that appointing a custodian of county property was not a judicial function.

were respectable freeholders?" It required in violation of the Declaration of Rights. judgment and discretion, and hence a mandamus could not be issued; but those things were not judicial functions, and if they had been the law there involved would have been invalid for imposing judicial duties on the clerk.

But beyond what we have said, the whole foundation for the proceedings which are claimed to have been judicial, determining between the appellants and the appellee whether the court would issue a license, was the court causing notification of the petition to be published. Was that a judicial act? Unless that was done, clearly the court had no

In Board of Supervisors v. Todd, 97 Md. 247, 54 Atl. 963, 62 L. R. A. 809, 99 Am. St. Rep. 438, the Act of 1896, c. 195, was before the court. It provided that whenever half of the registered qualified voters of Wicomico county, or of any election district thereof, who voted for Governor at the last election, petitioned to the circuit court to submit the question of granting or not granting licenses for the sale of liquor at the next congression

The court further said:

al election, the court should order the sher-[ iff of the county to give notice of the election, "That counting the names upon a petition, etc. Todd and others presented to the circuit ascertaining whether the names appended therecourt a petition praying it to submit the ques- to are those of voters at the last election for tion to the voters of the district, and, upon Governor, and ordering an election, is not a the hearing of the petition and the objections, judicial function, is a proposition that would the court passed an order submitting the seem to be too plain to need argument to enquestion to the voters of the district. But force it. The order, which by the statute here the supervisors of election refused to adver- under consideration, the court is required to tise the election and were preparing the bal-pass, is not to be the result of any judicial inquiry."

lots without any provisions for the submission of the question. A writ of mandamus was prayed for, and an answer was filed by the supervisors alleging that the act was unconstitutional and void, and making other defenses. Judge Jones, in speaking for this court, said on page 262 of 97 Md., on page 964 of 54 Atl. (62 L. R. A. 809, 99 Am. St. Rep. 438:

"The inquiry as to this is whether it is within the constitutional power of the Legislature to impose upon the judiciary, or invest them with, a function of this character, and whether the judiciary in the attempt to discharge such a function are not acting without constitutional warrant."

He referred to the case of State v. Chase, 5 Har. & J. 297, where Judge Buchanan said: "New judicial duties may often be unnecessarily imposed, and services, not of a judicial nature, may sometimes be required. In the latter case, a judge is under no legal obligation to perform them"-to which Judge Jones added, "which was to say that the opinion of the court was that duties, 'not of a judicial nature,' could not legally and constitutionally be imposed upon the courts or the judges."

[3] After referring to the fact that in the Constitutions of 1851, 1864, and 1867 there had been added to the provision of the Declaration of Rights in the Constitution of 1776, which was in force when State v. Chase was decided, the last clause of what is now article 8, and that there was the further declaration (article 33) that "no judge shall hold any other office, civil or military or political trust, or employment of any kind whatsoever, under the Constitution or laws of this state, or of the United States, or any of them," the court used this emphatic language:

"It would seem thus to be made evident in our fundamental law that the policy and intent of that law is that the courts and judges provided for in our system shall not only not be required but shall not be permitted [italics ours] to exercise any power or to perform any trust or to assume any duty not pertaining to or connected with the administering of the judicial function; and that the exercise of any power or trust or the assumption of any public duty other than such as pertain to the exercise of the judicial function is not only without constitutional warrant but against the constitutional mandate in respect to the powers they are to exercise and the character of duties they are to

And it was held that the act requiring of the circuit court the duty of ordering elections was repugnant to the Constitution and Bill of Rights and therefore void, and reversed the order of the lower court which had ordered the writ of mandamus to issue. In that case it was, not only held that the act was unconstitutional, but that the court was not permitted to exercise such powers. In Beasley v. Ridout and Prince George's County v. Mitchell, supra, the court in effect decided the same thing. It seems clear therefore that under our decisions it is not left to the discretion of judges whether they will or will not perform nonjudicial duties, but they are not permitted to do so.

[4] We cannot agree with the attorney for the appellee that there is no real distinction between the character of duties to be performed under this statute and those which would be in an injunction case involving the same facts, or in a proceeding by a guardian of an infant to sell the property. Injunctions and the protection of infants are peculiarly within the province of courts of equity, just as are reports of sales by mortgagees, trustees, and others; but granting licenses, especially such as those provided for in this statute, cannot be said to be within the ordinary or recognized powers of our circuit courts in the counties.

This statute has several striking peculiarities. Although it provides that "before granting the said license the said court shall cause notification of said petition to be published," etc., it does not in terms provide for an order to show cause; but, if that be implied, it does not prescribe what shall be sufficient cause. If the petitioner complies with all of the requirements of the statute, what is there for the court to try? If it is a valid statute, what sort of cause would be sufficient to justify the court in refusing a license? Surely the court, if acting judicially, cannot be governed by the individual views of the judges as to betting, or pool selling or bookmaking on horse races. There is nothing in the statute to be determined, excepting the name of the applicant, the name of the grounds, a definite description of the place where such grounds are located, whether the certificate is signed by at least 25 respectable qualified voters of the election district, and the number of days and months within which the license shall be operative,

(108 A.)

be passed. All those things can be done by [ by providing that section 217 should not the clerk of the court. Devin v. Belt, supra; Fooks v. Purnell, 101 Md. 321, 61 Atl. 582.

action. For reasons we have given, we feel constrained to hold sections 218-221 invalid and must reverse the order appealed from. Order reversed, the appellee to pay the costs.

(93 N. J. Law, 396)

STATE V. YOUNG.

Nov. 17, 1919.)

apply to them; but, instead of that, it undertook to authorize the circuit courts of the If the statute was valid, it would clearly counties to do so. Is not that in effect legbe the duty of the court to satisfy itself that islation by the court? It is for the Legisthe applicant had complied with it before lature, and not for the courts, to pass statcausing the notification to be given, as it un-utes, and yet this statute undertakes to auquestionably has no power to act at all until thorize the courts to exempt those who comit is at least substantially complied with. Al- mit the acts on the grounds of agricultural asAl-mit though the circuit court for a county is a sociations, etc., by granting them licenses. court of general jurisdiction; yet, when it Such exemptions from the operation of statacts in the exercise of a special statutory utes must be by legislative and not judicial jurisdiction, the mode prescribed must be substantially followed. If, for example, the certificate was not signed by at least 25 respectable qualified voters, the court would be without jurisdiction to act in the beginning, and hence we say that the court should satisfy itself that the statute had been complied with before it causes the notification to be given. It would seem to be impossible to even contend, under our decisions, that up to that point the court was engaged in (Court of Errors and Appeals of New Jersey. any judicial function, and to say that if, after the notice was given, other parties appeared and undertook to show that the stat- 1. CRIMINAL LAW ute had not been complied with, the proceedings then became of a judicial nature, because there was then a controversy between those parties and the applicant, as to whether the statute had been complied with, and the court had thereby acquired jurisdiction, would not be justified. It might as well be contended that, if a court had no jurisdiction over the subject-matter of a suit, it acquired it by the parties appearing before the court to contend that it had no such jurisdiction. The question at a hearing must relate back to the time of causing the notification to be given, and the statute furnishes no ground for objections to granting the license beyond what we have said. It is for the court to act in the first place, and the same court acts if objections are made. It is not like McCrea v. Roberts, where the clerk began the proceedings and the court only acted to settle the questions raised before the clerk.

ING EVIDENCE.

1045-RULING EXCLUD

Where court, on objection to question made

after answer, ruled, "That is proper," there was judicial action, which took the case within the purview of Criminal Procedure Act, § 136, as to the effect of the erroneous admission of testimony.

2. CRIMINAL LAW 400(2)-PAROL TESTIMONY INADMISSIBLE AS TO CONTENTS OF PUBLIC RECORD.

A witness, who was permitted to testify that he was jointly indicted with defendant on another charge, was thus erroneously permitted to testify orally to the contents of a public record.

3. CRIMINAL LAW 369(3)—EVIDENCE OTHER OFFENSE INADMISSIBLE.

OF

Proof of the crime of abortion was not admissible as tending to prove negligence amounting to manslaughter in a surgical operation for a different purpose.

4. CRIMINAL LAW 308-WITNESSES 337 (5)-INDICTMENT FOR ANOTHER CRIME INAD

MISSIBLE TO AFFECT CREDIBILITY.

Evidence that defendant was indicted for another crime was not admissible as an attack upon his credibility, in view of 2 Comp. St. 1910, p. 2217, § 1, since an indictment is a mere charge of crime, and an accused person is presumed innocent. 5. WITNESSES

321-STATE CANNOT IM

PEACH OWN WITNESS.

Another feature of this statute is, to say the least, most unusual in this state. It is in the twenty-seventh article of the Code, entitled "Crimes and Punishments." Section 217 declares to be a misdemeanor the very thing the court granted the appellee a license to do. That section can stand and will be the law of the state, although sections 218-221 be held to be invalid. Ag. Soc. Mont. County v. State, 130 Md. 474, 101 Atl. 139. The provisions for a license by the court, to do what without the license would be a clear violation of the statute, in effect exempt the licensee from the operation of the Where accused in a manslaughter case askstatute. If the Legislature desired to ex-ed witness for the state only as to an indictment empt agricultural associations or others complying with certain requirements, it could have done sc in the usual and regular way,

The state cannot legally impeach its own witness.

6. WITNESSES

TION AS TO BIAS.

376-REDIRECT EXAMINA

against him and a promise of immunity, it was not competent for the state, on redirect examination claimed to be material as explaining

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