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Proceedings and Acts of the General Assembly, 1870
Volume 188, Page 1090   View pdf image (33K)
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1090 JOURNAL OF PROCEEDINGS [Mar. 29,

commence and prosecute or defend any suit or action in any
of said Courts on the part of the State, which the General
Assembly or the Governor, acting according to law, shall
direct to be commenced, prosecuted or defended." And by
the same section, the Governor is prohibited from employing
additional counsel in any case, unless authorized by the Gen-
eral Assembly. It is well known that proceedings by scire
facias at common law, to enforce the forfeiture of a charter,
can, in Maryland, only be instituted by the express direction
of the General Assembly.

Your Committee are aware that the general corporation
Act of 1868, provides for a new and peculiar statutory pro-
ceeding against corporations at the instance of the Governor
for abuse of their charter privileges, that they are of opinion
that the provisions of that statute regulating the judgment
to be pronounced in such cases, to wit: the 179th and 181st
Sections, which direct the Courts after after ascertaining a
legal cause of forfeiture, to consider whether the public inter-
ests require a forfeiture to be desired or not, are in violation
of the eighth Article of the Declaration of Rights, which de-
clares: "that the Legislative, Executive and Judicial powers
of Government ought to be forever separate and distinct from
each other."

Now, if any class of questions can be said to belong to the
political departments of government, and not to the Judicial
department, it is that class of questions which involve an
inquiry into the public interest.

Deeply impressed with the necessity of adhering to the
fundamental principles of our political system, your Commit-
tee would be unwilling at any time to imperil the recognized
distinctions between judicial and political functions. But,
particularly unfortunate would it be to make the experiment
in a case surrounded by such large pecuniary interests, and
calculated to awaken so many passions, as would be a contest
between the State and the Baltimore and Ohio Railroad cor-
poration before a Court over the question whether public
policy demanded a vacation of its charter. Considerations
of this nature controlled your Committee and the House of
Delegates itself in proposing the common law remedy of scire
facias, which proposition, the Senate, in the exercise of its
judgment, has declined to sanction.

Efficient as your Committee believe that remedy would
have proved for the enforcement of the present demands of
the State, and still more efficient as a means through which
control might have been obtained over the charter of the
Company for the purpose of securing the rights of the State
against future encroachment, and the welfare of the citizens

 

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Proceedings and Acts of the General Assembly, 1870
Volume 188, Page 1090   View pdf image (33K)
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