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Constitutional Revision Study Documents of the Constitutional Convention Commission, 1968
Volume 138, Page 192   View pdf image (33K)
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The constitution will provide that
these courts will have only the jurisdic-
tion that will be stated in law.

3. The constitution will incorporate
a general provision carrying forward the
common law of England as of the time
of the independence of the colony.

Question: Under the above circumstances, must the constitution expressly de-
clare that these courts have the power to issue original writs in aid of their jurisdic-
tion? In other words, is the power of a court, whose jurisdiction is appellate by law,
vested with the inherent power to issue original writs in aid of that jurisdiction?

Case law indicates a differing view as
to whether the writ of error is an avail-
able remedy even in the absence of a
statutory or constitutional provision
therefor. It is clear that the power to
issue a writ of error (considered an orig-
inal writ) may be controlled by statute;
that such power is no longer available
where abolished by statute, either ex-
pressly or by implication; and that the
statutory remedies in nature of appeals
have considerably limited the use of the
Some courts have held that in the
absence of statutory or constitutional
power to issue writs of error, due process
does not require such issuance3 and
there is no inherent right of review.4
At least one court seemed to dictate the
necessity of constitutional authority.5
Most courts, on the other hand, hold
that there can be no denial of the right
of appellate review, even in the absence
of constitutional or statutory authority
to issue original writs.6 One case treated
the absence of a statutory provision
For case references see 4 C.J.S. Appeal &
10 (1957).
3 Patterick v. Carbon, 106 Utah 55, 145,
P. 2d503 (1944).
4 Binklev v. Asire, 335 Mich. 89, 55 N.W.
2d 742 (1952); In re Brewer, 250 Mich.
450,231 N.W. 89 (1930).
5 State v. Harrington, 3 Terry 14, 27 A.
2d 67 (Del. 1942).
6From v. Sutton, 156 Neb. 411, 56 N.W.
2d 441 (1953); Edwards Feed Mill v. John-
son, 302 S.W.2d 151 (Tex. Civ. App. 1957).

authorizing original writs as automati-
cally requiring issuance of a writ of
Maryland seems to waver from one
view to another. One of this State's
earliest cases on the issue held that the
right to an appeal or a writ of error
could not be refused, however indiffer-
ent or baseless the demand on the merits
may have been.8 The most recent case
decided that, unless it is specifically
provided for by statute, an appeal will
not lie from a judgment rendered by a
lower court to a court of special or lim-
ited jurisdiction.9 A number of other
cases indicate variations of the rule.10
Silence on the question of issuance of
writs implies authority to do so largely
because the authority exists in common
law. Consideration of reception statutes
for the common law, and their back-
ground, is important.
Included in the common law of
England, which was received into
Maryland's Constitution, were the fun-
damental courts by the common law,
i.e., courts and their powers which had
Ekendahl v. Svolos, 388 111. 412, 58 N.E.
2d 585 (1944).
8 Thompson v. McKim, 6 Har. & J. 302
9 Hart v. Comm'r of Motor Vehicles, 226
Md. 584, 174 A. 2d 725 (1961).
16 See, e.g., Earth v. Rosenfeld, 36 Md. 604
(1872); Brooks v. Sprague, 157 Md. 160, 145
A. 375 (1929); Travers v. Dean, 98 Md. 72,
56 A. 388 (1903); Johnson v. Bd. of Zoning
Appeals, 196 Md. 400, 76 A. 2d 736 (1950).


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Constitutional Revision Study Documents of the Constitutional Convention Commission, 1968
Volume 138, Page 192   View pdf image (33K)
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