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power to a third. We are recognizing the
general worth of the principle, but we are
not saying that it is one which has to be
strictly observed.
That is the vice in this proposal which
I see, and I urge you to vote against it. It
will lead to nothing but trouble.
THE CHAIRMAN: Does any other dele-
gate desire to speak in favor of the amend-
ment?
Delegate Singer.
DELEGATE SINGER: Mr. Chairman,
and fellow delegates, the historical perspec-
tive is that the separation of powers has
never been construed to be a separate and
distinct separation of governmental power.
There has always been in the history of
this country a blending and merging of
powers so that there have been, ever since
we have had this principle, examples exist-
ing in which one branch of government ex-
ercised the powers of one or both of the
other branches of government.
We have had a provision similar to this
in all of the state constitutions of Mary-
land from 1776. In the beginning it read
that the legislative, executive, and judicial
powers of government ought to be forever
separate and distinct from each other. In
1851 additional language was added read-
ing identically with what we have in the
present constitution.
There have been several Maryland cases
over the years that have construed this
particular prohibition, even though there
were allocations of power to the three dis-
tinct branches of government.
I think a particularly apt example of
what this does do, and the reason why it
is still needed, is an old Maryland case that
goes back to 72 Maryland, where the legis-
lature passed a statute requiring the courts
to change the effect of certain decrees
which had been final. This was voided
under the provisions of the Declaration of
Rights, Article 8.
I do not feel that if we eliminate this
such acts by the legislature of giving the
courts non-jurisdiction powers or requiring
the courts to act in a non-judicial way
would be prohibited.
The Supreme Court of the United States
as late as 1964 in an opinion by Justice
Warren looked with favor on knocking
down an act of Congress upon this prin-
ciple, stating it was a necessary ingre-
dient to a free government.
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For these reasons I ask that you support
the Committee's Recommendation.
THE CHAIRMAN: Delegate Sherbow.
DELEGATE SHERBOW: Mr. Chair-
man, ladies and gentlemen, I disagree with
Delegate Gleason's results, but I certainly
agree with him when he says you cannot
argue this in the time that is allotted. I
will ask you to bear with me because I do
not want to take additional time.
The Court of Appeals just last week, on
December 13, decided a case which dealt
with this direct situation. I am going to
read you now from the minority opinion,
and bear in mind that if the minority
should ever become the majority, what you
will have in the event this stays in the
constitution, the judge in the minority
opinion, Judge Wilson Barnes, said, "Ar-
ticle 8 of the Declaration of Rights of the
Maryland Constitution provides that the
legislative, executive and judicial powers
of government ought to be forever separate
and distinct from each other", etc. Then he
goes on to say that, "It will be observed
that although the doctrine of separation of
government powers between the three great
divisions of government is stated in lauda-
tory terms, the implementation of that
great principle to insure the freedom and
liberty of the individual citizen is in man-
datory terms addressed to each official of
the state government."
Now, it so happened that what was be-
fore the Court was a situation dealing
with no provision for review of a decision
by a state official acting as an administra-
tive officer.
Now, the rest of the Court of Appeals,
the majority, said this:
"In the earlier days of the exercise
of governmental powers by administra-
tive bodies, there was widespread fear
that the delegating of administrative,
legislative and judicial powers or func-
tions to a single agency not only vio-
lated the theory of separation of powers
but spelled its death knell. Emotional re-
sentment against the rise of administra-
tive power by lawyers and judges rose
and resulted in efforts to thwart or de-
stroy this veritable fourth branch of gov-
ernment by invoking the separation of
powers theory or using the non-delega-
tion doctrine or requiring a full and
complete de novo judicial determina-
tion ......."
These efforts had no more success than
had the plaintiff in the case of King
Kanntc v. The District of Columbia.
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