Board of Com'rs of Public Schools of Allegany County v. Allegany County Com'rs

• Decision Date: 08 January 1864
• Citation: 20 Md. 449
• Parties: THE BOARD OF COMMISSIONERS OF PUBLIC SCHOOLS OF ALLEGANY COUNTY. v. THE COUNTY COMMISSIONERS OF ALLEGANY COUNTY.
• Court: Maryland Court of Appeals

20 Md. 449

THE BOARD OF COMMISSIONERS OF PUBLIC SCHOOLS OF ALLEGANY COUNTY. v. THE COUNTY COMMISSIONERS OF ALLEGANY COUNTY.

Court of Appeals of Maryland.

January 8, 1864

APPEAL from the Circuit Court for Allegany County:

This is an appeal from an order of the Circuit Court for Allegany County (WEISEL, J.) refusing to grant a mandamus prayed for by the appellant, requiring the appellee to levy on the assessable property of Allegany County, the sum of ten thousand dollars, for the support of the common schools of said county, for the year ending July 1st, 1861, and also the estimate that might be made by the appellant for the same purpose for the year ending July 1st, 1862; and also dismissing the petition of the appellant with costs to the appellee.

The only question raised and determined in the Court below was whether sec. 155, of Art. 1, of the Code of Public Local Laws, authorizing and requiring the County Commissioners of Allegany County to levy annually the sum to be estimated and reported to them by the Board of Commissioners of Public Schools of said county, as stated in said section, (provided the same be within the limit fixed in the section,) is valid and constitutional, and can be enforced, inasmuch as the same is a duty required of the Commissioners of Allegany County alone, and not of all the other counties in the State, the Constitution requiring that the powers and duties of County Commissioners shall be uniform throughout the State.

The appellees in their answer to the petition for a mandamus filed by the appellants, assign the following reasons for which they say the mandamus should not be issued, as prayed:

1st. Because the said sections 142 to 157, so far as the same pretend to confer the power or impose the duty upon them to make the levy referred to, are, and each of them is, in contravention and violation of Article 7, section 8 of the Constitution of this State, and therefore absolutely null and void.

2nd. Because the Act of 1860, ch. 335, (which they say is the original of said sections of Article 1, of the Public Local Laws of this State,) so far as it undertakes to confer the power or impose the duty upon them to make said levy is unconstitutional and void.

3rd. Because by the Constitution of this State, it is provided and declared, that the powers and duties of the County Commissioners shall be uniform throughout the State, and that the Legislature should, at or before its second regular session after the adoption of said Constitution, pass such laws as might be necessary to ascertain and define the powers and duties of the County Commissioners; and that the Legislature did, by the Act of 1853, ch. 239, codified in Article 28 of the Public General Laws, ascertain and define said powers and duties. The Act of 1860, ch. 335, as codified in the Public Local Laws, therefore, as far as the same attempts to confer any special power, or impose any special duty on the defendants, not conferred or imposed upon the County Commissioners of all other counties in the State, is unconstitutional and void.

4th. Because if the Court thinks that the Act of 1833, ch. 239 codified in Article 28 of the Code of Public General Laws confers the general power on all the County Commissioners of the several counties of the State, to levy a tax for school purposes, still, such power is discretionary, and not absolute or obligatory; so far therefore as the Act of 1860, ch. 335, or the codification of it in the sections aforesaid, makes the duty imperative on the defendants, to make any such levy, without leaving it discretionary with them, it is wholly unconstitutional and void, and no writ of mandamus could or ought to be granted as prayed for.

The Court below, (WEISEL, J.,) having ordered and adjudged, that the petition should be dismissed with costs, the petitioner appealed to this Court.

The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH and COCHRAN, J. George A. Thurston, for the appellants:

Conceding the Act to be constitutional, the only remedy is an application for a writ of mandamus to compel the County Commissioners to make the levy, where they refused to do so, and the time prescribed for making it had not passed. Ellicott vs. The Levy Court, 1 H. & G., 359. McKim vs. Oden, 3 Bland, 407.

The appellant has no other adequate remedy, and therefore mandamus is the proper one. Tapping on Mandamus, 66 Law Lib., 3 rd series 142, side p. 93.

When the sum is estimated and reported, as is admitted was done in this case by the appellant, and is less than the extreme amount annually to be levied, the same becomes a debt due from the county, and the only mode in which it can be attested and made available for the purposes for which the appellant was incorporated, where the County Commissioners refuse to make the levy, is by a mandamus compelling them so to do at the first period thereafter, when they can lawfully levy any tax.

If this is not so, then the County Commissioners can defeat and destroy any lawful claim against the county, by refusing to levy the amount necessary to discharge it; and by withholding their action until the time, before which every lawful levy for the year ensuing must be made, has arrived; or by permitting said day (now fixed by Art. 28, section 4, of the Public General Laws, to be the first day of July in each year) to pass, without previously notifying the creditor of their intention not to levy the requisite amount.

Actions against the commissioners individually for neglect of duty, claiming damages, or by indictment, will not necessarily result in obtaining payment, and are therefore not adequate remedies.

And this Court have determined in the case of Ellicott vs. The Levy Court, 1 H. & J., 359, that all levies must be made previously to the day fixed as the period before which in each year they can lawfully make any levy. Again, if a petition be filed before said County Commissioners have refused to make such levy, and before the said period within which they may lawfully make it, it cannot contain the necessary averment to entitle the party to ask for the proper relief, viz: that they have refused to make the levy. Nor can this case be assimilated to that of Ellicott, last referred to, where the levy was required by the law authorising it, to be made at the first or next annual levy of taxes in the county, after the passage of the law.

If we are correct in deeming this estimate, when made by the petitioner and reported to the County Commissioners, as a debt due by the county, then nothing can discharge it but payment or release by the authority of the Legislature, because it is estimated by the petitioner as the sum necessary for the support of the said schools in the ensusing year; it will not do to say, that inasmuch as that year will have expired before the commissioners of the county can by the relief sought for here, be compelled to levy it, that such relief will not be granted, and this for several reasons.

The petitioner may obtain the necessary means elsewhere, to be reimbursed by said levy when made, and to authorise such a conclusion, will be to empower County Commissioners by an omission or refusal to perform their duty, to defeat a great public benefit, in fact, to annul the law.

Again, such a course would wholly defeat the law if admitted to be constitutional and valid; for the question of granting relief prayed for cannot come before this honorable Court for decision, before the period within which such relief, if proper to be granted in all other respects, can be made available.

There is, however, another question involved in the election of remedies, between a suit at law for the amount as a debt, and an application for a mandamus. A suit cannot be reasonably tried at law, and an appeal taken to and heard by this Court before several annual terms, may be demanded under the Act; whilst the application for a mandamus below is required to be heard at a reasonable period after service on the defendants, and an appeal from the order granting or refusing is also to be heard at the first term after the record is transmittted. Code Pub. Genl. Laws, Art. 59, secs. 1 to 5. Code Pub. Genl. Laws, Art. 5, sec. 10. And being of a public nature, the speediest mode for final. adjudication should be preferred. Article 7, section 8, of the Constitution of this State, enacts, that " said County Commissioners shall exercise such powers and duties only as the Legislature may from time to time prescribe, but such powers and duties, and the tenure of office, shall be uniform throughout the State," & c.

It is contended, by the defence, that the duty imposed by section 155 of Art. 1, of Public Local Laws, on the Commissioners of this county is, under the above, unconstitutional and void.

This eighth section of Article 7 of the Constitution, provides, that the Legislature shall prescribe their powers and duties; and at its second regular session, or before, after the adoption of the Constitution, pass such laws as may be necessary for determining the number for each county, and ascertaining and defining their powers and duties, & c.

The Legislature did, subsequently to the adoption of the Constitution, pass several laws defining the powers, & c., of the County Commissioners, all of which are now codified in the Code, at least, all which could bear on this subject. The Code was adopted January 12th, 1860, and the Act incorporating the appellant on March 1st, 1860, now in force only by virtue of sections 142 to 157, both inclusive, of all Public Local Laws to which we can alone look for any legislative incorporation or authority, of and for the appellant.

It is contended that the word " uniform," in said section of the Constitution, plainly...