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DELEGATE MOSER: It would, Mr.
Chairman, if this is truly a state function.
THE CHAIRMAN: Is not the exercise
of police power a state function?
DELEGATE MOSER: I suppose it is,
and I would have to say yes to your ques-
tion.
THE CHAIRMAN: Delegate Raley.
DELEGATE RALEY: Would Delegate
Moser yield to a question?
THE CHAIRMAN: Delegate Moser.
DELEGATE MOSER: I yield.
THE CHAIRMAN: Delegate Raley.
DELEGATE RALEY: Under the local
government article, could each county not
set up a sheriff under its own inherent
power given it if it so desired? Could it
set up a sheriff in each county if it so de-
sired, through its instrument of govern-
ment?
THE CHAIRMAN: Delegate Moser.
DELEGATE MOSER: Yes.
THE CHAIRMAN: Delegate Grant.
DELEGATE GRANT: Will Delegate
Moser yield to a question?
THE CHAIRMAN: Delegate Moser.
DELEGATE MOSER: I continue to
yield.
THE CHAIRMAN: Delegate Grant.
DELEGATE GRANT: In the granting
of power to the counties, judicial power is
excluded. They may exercise every power
except judicial power. If there is anything
judicial that this office would apply, it
would be beyond the power of the county
to grant it, would it not?
THE CHAIRMAN: Delegate Moser.
DELEGATE MOSER: Your suggested
answer is correct, that the counties could
not provide for judicial power in the sheriff.
However, presumably the court by rule
could do this, even if the sheriff is a county
office. The court could assign judicial func-
tions to the office.
THE CHAIRMAN: Delegate Willoner.
DELEGATE WILLONER: I do not
want to debate the local government article.
The police power is part of the shared
powers of counties isn't that correct?
THE CHAIRMAN: Delegate Moser.
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DELEGATE MOSER: That is correct.
THE CHAIRMAN: Delegate Case.
DELEGATE CASE: Mr. Chairman, I
am probably out of order here, but you are
so adept at doing this, could the Chair
state for the benefit of the Committee just
how he understands the powers of the local
government versus the state, vis-a-vis the
creation of the office of sheriff?
I must confess Delegate Moser got me
so confused I do not know whether the
state can or cannot do it.
THE CHAIRMAN: The Chair will be
glad to state it with one qualification. The
Chair has views on one aspect of the law
he happens to know is not in accord with
all other delegates. Feel free to dissent, and
I will indicate the area in which I think
that such a dissent could occur.
Under the local government article
adopted by the Convention to the extent
that the sheriff is designated as a state
agent or agency performing state func-
tions, he could clearly be brought into ex-
istence by an act of the legislature and
the act of the legislature could provide for
his appointment, or his election, or, if
there is some other way of election, could
provide for his selection in any other way.
DELEGATE JAMES: A point of in-
quiry. Would it not have to be a uniform
law?
THE CHAIRMAN: That is what I am
coming to. To the extent that it is a state
agency, in the opinion of the Chair under
section 7.06 which I have read, it would
not have to be a public general law, that
is one of uniform application.
To the extent that it was deemed not to
be a state agency, and hence not within the
exception of section 7.06, it is the opinion
of the Chair, and this is just a private
opinion as a lawyer, that a public general
law need not necessarily have absolute uni-
form application in every county.
I think you could have a public general
law providing for sheriffs that would pro-
vide a different salary for sheriffs in locali-
ties of different populations for instance.
There are some who do not agree with that
view. There are some who feel that a pub-
lic general law must apply without devia-
tion in every county in the State. In other
words, to sum it up, in my personal opin-
ion, what is sought to be accomplished by
this section could be accomplished by the
legislature in the absence of this section.
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