elections would be no more judicial in its character than all the other necessary proceedings therein. It is not reasonable to impute to the fundamental law, in view of the declarations therein heretofore noticed, an intention to make the courts subject to have devolved upon them duties so distinct from those pertaining to the exercise of the judicial function, and which could be imposed to such an extent as to seriously interfere with the efficient discharge of the duties of the judicial office. This being so, the provision of the act of 1896, chapter 195, which requires of the circuit court for Wicomico county the duty of ordering elections as therein prescribed is repugnant to the constitution and Bill of Rights and therefore void. As these elections, by the terms of the act, must depend upon the orders from the circuit court the act must fail.

No reference has been made to authorities or precedents in other states among which there is more or less conflict as to 266 the questions herein considered. It is sufficient that the views expressed and the conclusions reached seem to be the logical and inevitable consequence of the principles embodied in our organic law, and of our decisions expounding them. As authorities, however, maintaining similar views in analogous cases we may refer to Dickey v. Hurlbut, 5 Cal. 343, and Case of Supervisors of Election, 114 Mass. 249, 19 Am. Rep. 341.

As a result of our views we must reverse the order of the circuit court for Wicomico county from which the appeal in this case was taken.

Order reversed with costs to the appellants.

A Statute of Massachusetts directing the justices of the supreme court to appoint supervisors of election has been held unconstitutional, because that duty is not a judicial function: Case of Supervisors of Election, 114 Mass. 247, 19 Am. Rep. 341.

INSURANCE

CONNECTICUT FIRE

COHEN.

[97 Md. 294, 55 Atl. 675.]

COMPANY V.

FIRE INSURANCE—Misconduct of Appraiser.-When the amount of a loss is submitted to appraisement, an appraiser is not the agent of the party nominating him, so that he can, without the co-operation or connivance of that party, deprive him of the fruits of his insurance by inaction or bad faith. (p. 448.)

FIRE INSURANCE Misconduct of Appraiser.-The fact that an appraisement of the amount of loss is defeated by the appraiser nominated by the insured does not necessarily bar his right to sue on the policy; it is sufficient to such right that the failure of the appraisement was without fault on the part of the insured, and for that purpose it is unnecessary to ascertain that the insurer was the cause of the failure. (p. 450.)

George Whitelock and John B. Deming, for the appellant. Jacob J. H. Mitnick and Charles F. Harley, for the appellee.

297 SCHMUCKER, J. This is an appeal from a judgment of the Baltimore City court in favor of the appellee in an action of assumpsit against the appellant company on a policy of fire insurance. The policy is in the standard form, insuring to the extent of two thousand dollars merchandise located in the appellee's store in Baltimore City. It contains the usual clause providing that in the event of a loss by fire to the insured goods and a disagreement as to the amount of the loss it shall be ascertained by two competent and disinterested appraisers, the insured and the company each selecting one, the two so chosen to first select an umpire and the appraisers then to estimate and appraise the loss, and failing to agree to submit their differences to the umpire, the award in writing of any two to determine the amount of the loss.

298 The policy further provides that the loss shall not become payable until sixty days after due notice and proof "including an award by appraisers when appraisal has been required" and that "no suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements nor unless commenced within twelve months next after the fire."

The insured goods were damaged by fire on August 26, 1901, while the policy was in full force. A disagreement as to the amount of loss caused by it having arisen between the appellee

and the adjuster representing the company, the appellee requested that the extent of the loss be ascertained by an appraisement. The appellee named Louis Applefeld as one of the appraisers and the appellant named Albert H. Likes as the other and a formal agreement for an appraisement was drawn up and signed by the parties on October 29, 1901. This agreement authorized Applefeld and Likes (together with a third person to be first appointed by them as required by the policy of insurance and to act as umpire on matters of difference only) to appraise and estimate the actual cash value of and the loss and damage by fire to the property described in the policy.

The two appraisers failed to agree upon an umpire and as a result no appraisement was made. Each appraiser was a witness in the case and gave his version of the cause of their disagreement. The evidence, although conflicting, tends to prove that the appraisers met promptly after their appointment and three names were proposed, two by Applefeld and one by Likes, of persons from whom to select the umpire, but after taking a day for reflection each rejected the name or names suggested by the other. After that interview no further attempt seems to have been made to proceed with the appraisement. Likes testified that he rejected Applefeld's nominees partly because he had reason to believe that they had sold some of the insured goods to Applefeld, although it does not appear that he informed the latter of his reasons for the rejection. 200 Applefeld gave as his reasons for rejecting Likes' nominee that he did not know him. He further testified that he requested Likes to suggest additional names, but the latter refused to do so. Likes, on the contrary, testified that when no choice of an umpire was made from the three names first mentioned he at that same interview proposed to submit a list of six names of representative business men of Baltimore and let Applefeld select one of them, but the latter rejected the proposition. Applefeld testified that when he declined to accept the person proposed by Likes for umpire Likes said, "If you are not satisfied with him I will get out of it." Likes denied having said so, but he admitted having told Mr. Deming, the company's adjuster, that he would prefer to step out, and let them get another appraiser in his stead. There was also testimony tending to show that after the failure of the appraisers to select an umpire, the company's adjuster called on the appellee's attorney and told him that Likes would resign as an appraiser and that the company was considering whether they would name an

other appraiser in his place, and that he, the adjuster, would let the attorney know in a few days, but he never gave him any further information on the subject.

The effort at an appraisement which was initiated on October 29, 1901, having produced no practical result up to December 24, 1901, the appellee on that day brought the present suit on the policy. The appellant filed the general issue pleas and also a special plea setting up the terms of the policy in relation to an appraisement of the amount of loss in case of a fire and a disagreement as to the extent of the loss resulting therefrom and averring that a disagreement as to the amount of the loss by the fire had occurred and that appraisers had been selected, the agreement for an appraisement had been executed and that the defendant had in good faith done all in its power to procure the making of the appraisement but that the appraisement was still pending and unconcluded.

To this plea the appellee replied: 1. That the appraisement had been abandoned by the appellant; 2. That the failure to appraise was not caused by the fault of the appellee; and 300 3. That the failure of the appraisers to select an umpire and the abandonment of the appraisement had occurred without fault on the part of the appellee. The issue was made up by rejoinders to these replications.

There is but one bill of exceptions in the record and that brings up for our review the action of the court below in rejecting the defendant's first and second prayers. The prayers are as follows:

1. If the jury shall find that the plaintiff's appraiser Louis Applefeld prevented the selection of an umpire on matters of difference between the appraisers named in the agreement of October 20, 1901, offered in evidence, and that there has been no appraisement and estimate of the actual cash value of, and the loss and damage by fire to, the property of the plaintiff described in the defendant's policy of insurance as stipulated in said agreement then the verdict of the jury must be for the - defendant.

2. If the jury shall find that the failure to reach an appraisement and estimate of the actual cash value of and the loss and damage by fire to the insured property of the plaintiff in accordance with the agreement of October 29, 1901, offered in evidence was due to the failure of Louis Applefeld, the plaintiff's appraiser, to do in good faith all that he could reasonably be expected to do to agree with the defendant's ap

praiser Albert H. Likes upon a suitable umpire in accordance with said agreement then the verdict of the jury must be for the defendant.

These two prayers plainly present the proposition that an appraiser, named in such an agreement as appears in this record, is to be regarded as the agent of the party who nominated him in so far at least that he can, without the co-operation or connivance of that party, deprive him of the entire fruits of his insurance by pursuing a policy of inaction or bad faith in performing the duties of the appraisement. To that proposition we cannot give our assent. It is fundamental to the conception of such an appraisement, which is in effect an arbitration, that the persons selected to make it should be free from the control or direction of the respective parties whose interests have been confided to them and should act independently and upon their own judgment. If it could be shown that an appraisement 301 had been arrived at through pressure or control exercised over the appraisers or any of them by one of the parties to the submission that fact would be sufficient to avoid the appraisement. This is equally true whether an entire contreversy is covered by the arbitration or, as in the present case, only a single element of it is submitted for determination. It being thus the duty of the parties to the submission to abstain from all interference with the appraisers it would be manifestly unjust, when they have observed such abstinence, to hold them responsible for the negligence or misconduct of the appraisers. In order to defeat the rights of a party to a submission to an appraisement by reason of the conduct of the appraiser the evidence should connect the party himself with that conduct. The legal principles involved in this case have already been passed upon by this court in Caledonian Ins. Co. v. Traub, which three times has been before us, in 80 Md. 214, 30 Atl. 904, 83 Md. 533, 35 Atl. 13, and 86 Md. 86, 37 Atl. 782. The policy of insurance which formed the subject of that suit was similar in its terms to the one now under consideration and contained a like provision for an appraisement of the amount of loss in case of a fire. After a fire had occurred, appraisers to determine the amount of loss were appointed, under that provision, and they selected an umpire, and the three had partly done their work when the appraiser who had been nominated by the assured withdrew without any apparent good reason. The other appraiser and the umpire then completed the appraisement. It therefore became necessary for the court to pass