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The court went on to say:
"The early fears of the bar and bench
have largely disappeared with experience."
Yet, in this same case one of the five
judges in the Court of Appeals hearing
this case said the separation of powers as
written in the constitution means what it
says.
It so happens I agree with Judge Hen-
derson and with Delegate Macdonald when
they say it just is not true, and therefore
I shall vote against the Committee Rec-
ommendation.
THE CHAIRMAN : Does any other dele-
gate desire to speak in favor of the rec-
ommendation?
DELEGATE ANDERSON: Mr. Chair-
man, I rise to speak in favor of the Com-
mittee Recommendation, notwithstanding
the distinguished spokesman against this
provision.
As you know, this came up in the Decla-
ration of Rights provision, and I think I
spoke then and pointed out at that time
that forty states have such a provision
providing for the separation of the power.
Secondly, I think some people misunder-
stand this provision. To start with, our
Court of Appeals has repeatedly stated it
does not apply to municipal corporations. I
read only this morning — I cannot think
of the last name, Pressman v. somebody in
Baltimore — where they said it did not
apply, and it was an old case, so it does
not apply to municipal governments at all.
The third point is that it does not say
that the legislature cannot combine all
three of these powers, in a body, such as
the workmen's compensation commission.
There is no question about that
The legislature has the right to put the
power wherever they want it, but the pur-
pose of this separation of powers provision
is to prevent the judiciary from assuming
powers that are delegated to the executive,
to prevent the executive from assuming
powers that are delegated to the legislature.
In other words, it is purposely set up to
keep the constitutional officers from as-
suming power that is not delegated to
them by the constitution, and I think this
is a fundamental principle that should be
continued in this constitution.
THE CHAIRMAN: Delegate Winslow.
DELEGATE WINSLOW: Mr. Chair-
man, I shall be very brief. We were re-
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minded a few minutes ago that we should
go and do our homework. I suggest as the
homework for the delegate that he go
and read the Constitution of the United
States. No place in American constitutional
history have the courts been so careful to
hold the various departments of govern-
ment to their constitutional duties as at the
federal level. Still you may read the Con-
stitution of the United States from cover
to cover and find no mention of the sepa-
ration of powers doctrine.
THE CHAIRMAN: Delegate Willoner.
DELEGATE WILLONER: I wish to
speak in opposition to this proposal. As I
spoke to it the other day, I would like to
point out there is a major change in this
proposal in that the word "ought" is
changed to "shall".
As pointed out in the opinion read by
Judge Sherbow, the present language is
oratorical in the first part of it; the sec-
ond part of it is mandatory.
I would also like to point out in section
60 of Article III, which the Committee did
not even consider — that is, giving the
General Assembly the power to suspend
a sentence or to have an indeterminate
sentence or to release on parole — was put
in the constitution to get around this pro-
vision, and this provision has been left out
at this point.
Therefore, I would assume that if we
leave it out, the courts will no longer be
able to parole or provide indeterminate
sentences or suspend sentences, which is
the present practice today.
This particular provision has a lot of
problems in it. There are states where
this language has been held to prevent
judicial review of legislative acts, and it
should not be in the constitution, at least
with the "shall" in there.
THE CHAIRMAN: Are you ready for
the question?
(Call for the question.)
The Clerk will ring the quorum bell.
The question arises on the adoption of
Committee Recommendation No. GP-11.
A vote Aye is a vote in favor of the
recommendation. A vote No is a vote
against.
Cast your votes.
Has every delegate voted? Does any dele-
gate desire to change his vote?
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