Board of County School Com'rs of Worcester County v. Goldsborough
| Decision Date | 09 December 1899 |
| Citation | 44 A. 1055,90 Md. 193 |
| Parties | BOARD OF COUNTY SCHOOL COM'RS OF WORCESTER COUNTY et al. v. GOLDSBOROUGH, Comptroller. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Anne Arundel county; James Revell and I Thomas Jones, Assistant Judges.
Mandamus by the board of county school commissioners of Worcester county against Phillips Lee Goldsborough, comptroller, etc to compel the payment of county school funds. From an order refusing the writ and dismissing the petition, relator appeals. Affirmed.
Gans & Haman, W. Calvin Chesnut, and Adlai P. Barnes, for appellant. Atty. Gen. Gaither and John H. Hardy, for appellee.
The ultimate question for decision on the record before us is this: Has the governor, under section 15, art. 2, of the state constitution, the power to remove a county school commissioner from office for incompetency or misconduct? That question comes up in the following way: Laban T. Quillin, one of the three school commissioners of Worcester county, after due notice and opportunity to be heard, was removed by the governor on the 16th of August, 1899. On the same day the governor appointed Harry P. Dale in place of Quillin. On the next day Dale qualified, and a meeting of the school board was held. Quillin attended the meeting, and refused to recognize the validity of his removal by the executive. Under the statute the board consists of three members. Edgar W McMaster, who had in August, 1898, been elected president of the board, and Asbury C. Riley, were, with Quillin, the members of the board when the last named of the three was removed. At the meeting on August 17th, Riley and Dale acting together, deposed McMaster as president, and elected Riley in his place. They continued in office Straughn, who had been elected secretary, treasurer, and examiner the preceding year. McMaster recognized Quillin as a member, and Riley recognized Dale. There were thus two hostile boards, each claiming to be the rightful board, and both having the same secretary, treasurer, and examiner. In this situation, Riley, acting as president, and Straughn, acting as secretary, drew a draft on the comptroller of the state treasury for the funds apportioned by him to the school board of Worcester county; but the comptroller, not recognizing Riley as president, refused to pay the draft. Thereupon a petition was filed in the name of the board of county school commissioners against the comptroller, praying that he might by mandamus be required to pay the draft. The comptroller filed an answer, to which the relator demurred. This demurrer was overruled, and the petition was dismissed, and hence this appeal.
If the governor had no authority to remove Quillin, his appointment of Dale in the place of Quillin was a nullity, and Dale did not by that appointment become a member of the board. If Dale did not become a member of the board, the deposing of McMaster as president by Riley and Dale was futile and of no effect, and the election of Riley by Dale and Riley to succeed McMaster as president was no election at all; and, if Riley was not president, then the draft drawn by him as president was a draft that the comptroller was not bound to pay. If the comptroller was not in law bound to pay that draft, then a mandamus compelling him to pay it cannot be issued. Thus the controversy reaches back to the inquiry which was stated at the beginning of this opinion. On the one hand, it is contended that the governor has, under section 15, art. 2, of the constitution, the power to remove a school commissioner. On the other hand, it is maintained that a school commissioner can only be removed under section 25, art. 77, of the Code of Public General Laws. Section 15, art. 2, of the constitution provides: "The governor may suspend or arrest any military officer of the state for disobedience of orders or other military offence; and may remove him in pursuance of the sentence of a court martial; and may remove for incompetency or misconduct, all civil officers who received appointment from the executive for a term of years." Section 25, art. 77, of the Code enacts: This section of the Code provides in terms for the removal of a school commissioner. It professes to deal with that subject, while section 15, art. 2, of the constitution does not expressly include a school commissioner, and is applicable to him only in the event that he is a "civil officer," within the meaning of that phrase as used in that and other sections of the organic law.
The public school system, as it now exists, was framed by the legislature pursuant to the requirements of article 8 of the state constitution. By the statutes at present in force on that subject, as embodied in article 77 of the Code, the school commissioners are appointed by the governor, with the approval of the senate, for a term of six years; the beginning of the term being fixed in the month of August following the appointment. By section 19 of the article just named, it is expressly declared that the school commissioners for each county shall be and constitute a body corporate; and all the property, funds, and effects belonging to the public schools of the respective counties are declared to vest in these boards or bodies corporate. To these boards, to these corporations, and not to the individual school commissioners are committed the whole management and control of the public schools. Now, the question is, are these school commissioners "civil officers," within the meaning of section 15, art. 2, of the constitution, or are they merely members of public corporations, exercising not personally, as civil officers, the duties imposed upon the boards of school commissioners, but discharging those duties solely through and in the name of the corporate entity of which by their appointment they become members? There is a sense in which, if they are officers at all, they may be said to be civil officers, and that is as contradistinguished from military officers; but still the question recurs, are they civil officers within the meaning of the constitution, when all the provisions of that instrument bearing upon the inquiry are brought together and interpreted, not in the way a statute would be read, but in the way those provisions must have been understood by the people who adopted them? Mayor, etc., of City of Baltimore v. State, 15 Md. 376. If we turn to section 13, art. 2, of the constitution, we find that the terms of "all civil officers appointed by the governor and senate *** except in cases otherwise provided for in this constitution, shall commence on the first Monday of May next ensuing their appointment and continue for two years (unless removed from office)." Now, if the phrase "civil officers," used in section 15, is to be understood as meaning the officers which the same phrase employed in section 13 applies to, then, if a school commissioner is, under section 15, a "civil officer," Act 1892, c. 341, which created a term of six years, to begin in August, is void, under section 13, because section 13 limits the term to two years, and fixes its beginning in May. Thus, the alternative is presented of declaring the act of 1892 unconstitutional, and striking down with it the present organization of the public school system, or of treating the school commissioners as not being civil officers, within the meaning of section 15. In the face of such an alternative, a strict, rather than a liberal, construction must be placed on section 15. The term "civil officers" obviously cannot have different meanings in these two closely-connected sections of the same article of the constitution, nor can it be construed more rigorously in the one than in the other. "Where the same language is used in different clauses of the constitution, upon the same or similar subjects, it must receive the same construction, unless some particular reason to the contrary can be assigned." Roberts v. Gibson's Ex'r, 6 Har. & J. 116. No satisfactory reason can be given for assuming that the people, who adopted the constitution as a whole, understood that the term "civil officers" was to have a wider signification in the fifteenth than in the thirteenth section. Originally the school commissioners were, under Act 1865, c. 160, named by the state board of education; and their terms, beginning in June, were fixed at four years. Then, under Act 1868, c. 407, they were elected by the people for a term of two years, commencing in January. Afterwards they were selected by the judges of the circuit courts, and finally the power to appoint them was conferred upon the governor. However chosen, they were clothed with no power to be exercised by them as individuals. With the single exception of the authority given to them to administer an oath in matters pertaining to public schools, every duty to be performed is imposed, and every power to be used in respect to the public schools is conferred, not upon the persons appointed commissioners, but upon the corporate entities of which those persons are merely the members. In defining and prescribing the duties imposed and the powers given,...
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