Board of Ed. of Montgomery County v. Montgomery County

• Decision Date: 07 December 1964
• Docket Number: No. 93,93
• Citation: 237 Md. 191,205 A.2d 202
• Parties: BOARD OF EDUCATION OF MONTGOMERY COUNTY v. MONTGOMERY COUNTY, Maryland.
• Court: Maryland Court of Appeals

Page 191

237 Md. 191

205 A.2d 202

BOARD OF EDUCATION OF MONTGOMERY COUNTY v. MONTGOMERY COUNTY, Maryland.

No. 93.

Court of Appeals of Maryland.

Dec. 7, 1964.

Charles W. Prettyman, Rockville, and James C. Christopher, Bethesda, for appellant.

Thomas B. Finan, Atty. Gen. and Mathias J. DeVito, Asst. Atty. Gen., Baltimore, on the brief amicus curiae.

Robert G. Tobin, Jr., County Atty., for Montgomery County (Lawrence E. Speelman, Asst. County, Atty., on the brief), Rockville, for appellee.

Before HENDERSON, C. J., and HAMMOND, PRESCOTT, MARBURY and OPPENHEIMER, JJ.

OPPENHEIMER, Judge.

This is an appeal by the Board of Education of Montgomery County (the Board) from an order of the Circuit Court for Montgomery County dismissing the Board's petition for a writ of mandamus against Montgomery County (the Council). ¹ The Board's petition sought the following relief: (1) that the Council be directed to pay over to the Board all monies collected from the school tax levies and not appropriated at the end of the fiscal year 1962-63 (the surplus); (2) that the Council be directed to approve the Board's request for certain professional and clerical assistants; (3) that the Council be directed to furnish reasons in writing for its refusal to approve certain of the Board's requests in its 1963-64 annual budget, and (4) that the Council be directed to eliminate from the then current school tax levy an item representing a tax for debt service. The Council demurred to and answered the petition.

The Council has filed a motion to dismiss this appeal on the ground that the questions presented are moot. We reserved our ruling on that motion pending argument on the merits.

The Motion to Dismiss

The Council contends that all the relief prayed by the Board pertains to the fiscal year 1963-64, which ended on June 30, 1964, and that therefore any action taken by this Court on this appeal can have no effect. It invokes the rule that the writ of mandamus, if issued, must be issued as prayed, and that it will not be issued at all where it will be nugatory. Board of County Commissioners of Howard Co. v. Moxley, 222 Md. 113, 158 A.2d 895 (1960); Pennington v. Gilbert, 148 Md. 649, 652, 129 A. 905 (1925).

That rule is clearly not applicable as to the prayer for relief in the Board's petition in respect of the surplus. If the surplus, under the law, should have been paid to the Board in the fiscal year involved but was improperly withheld by the Council, the Council can not, by its own act, make moot the judicial grant of relief. In the issuance vel non of the writ of mandamus, courts invoke equitable principles to reach the real merits of the controversy. Ipes v. Board of Fire Com'rs of Baltimore, 224 Md. 180, 183, 167 A.2d 337 (1961); Ghinger v. Fanseen, 166 Md. 519, 526, 172 A. 75 (1934). As in a bill for specific performance with which the writ has been compared, Ipes, supra, the petitioner's right to relief can not be defeated by the delay of the opposite party. See Budacz v. Fradkin, 146 Md. 400, 408, 126 A. 220 (1924). If the surplus should have been paid to the Board in the fiscal year 1963-64, it is money to which the Board is still entitled.

The other three matters as to which the Board's petition prays relief pertain directly to the fiscal year involved, which is now past. They involve issues of important public concern not only in Montgomery County but to the State as a whole, in respect of the scope of the legal power of the county authorities and the local school board. The questions involved are likely to recur frequently and there is a general interest in the establishment of rules of conduct as to the disputed matters for the guidance of all concerned. It was pointed out in Lloyd v. Board of Sup'rs of Elections of Baltimore County, 206 Md. 36, 42-43, 111 A.2d 379 (1954), that many courts regard the doctrine of mootness as a rule of decision rather than a question of jurisdiction, and hold that where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest, a departure from the general rule and practice of not deciding academic questions may be justified. This question was referred to but left open in State Board of Public Welfare v. Myers, 224 Md. 246, 251, 167 A.2d 765 (1961). However, as was noted in Lloyd, we have decided important recurring questions which otherwise would not have been heard on appeal merely because the current year to which the case pertained had expired, on the ground that otherwise the determination of the recurring question might be indefinitely delayed. Lloyd v. Board of Supervisors of Elections of Baltimore County, supra, and cases therein cited. See also Frostburg v. Jenkins, 215 Md. 9, 13, 136 A.2d 852 (1957).

The question as to the surplus is not moot, and to prevent future recurring controversies on questions of public interest which, in all probability, could not otherwise be decided, we will consider the other issues involved.

For these reasons, the motion to dismiss is denied.

The Surplus

As provided by Code (1964 Supp.), Article 77, Section 68, the Board has annually submitted its proposed budget to the Council requesting funds for the coming year. Based upon his budget and under the authority of the same statute, a levy known as the school tax levy was made on the assessable property in the county for the purpose of meeting the budget. On many occasions, the county collector of taxes received more monies from a given school tax levy than had been requested by the Board or approved by the Council. These surpluses have accrued because of the impossibility of predicting at the time of the levy the exact amount of money a given tax rate will produce during the fiscal year. The surplus amounts have not been segregated but have been placed in the general treasury account of Montgomery County. These amounts have at all times been under the control and in the custody of the Council. The Board received from the school tax levy only such sums as were requested in its annual budget and approved by the Council.

Testimony adduced at the hearing showed that on June 30, 1963, the close of the year during which the petition was filed, there was in the treasury of Montgomery County over one million dollars, representing the accumulated surplus from school tax levies. It has been the practice of the Council to advance to the Board portions of its approved budget before collection of the entire school levy for the current year, but these advances were made from the Council's general funds and did not constitute an appropriation or payment of the accumulated surplus. The Council did not appropriate that surplus to the Board in order to maintain a reserve.

The Board contends that it is entitled to the surplus under the clear language of Section 68, which provides that 'Taxes so levied shall be collected as other taxes and shall be paid monthly to the treasurer of the county board of education * * *.' (Emphasis supplied.) The Council contends that because this language in the Section is preceded by the requirement that the Board's annual budget must be approved by the Council before the date for levying taxes, the Council's obligation to pay the funds raised by the school levy is limited to the funds actually requested in the Board's budget, even though the levy raises more money than that requested.

Section 68 is not an ad hoc enactment; it is part of a carefully conceived legislative structure in which the respective powers and limitations of local school boards, the State Board of Education and county governments are delineated and balanced. The board of education is not a part of the executive branch of the county government nor an agency under its control. It is an agency financed wholly or in part by county funds, but, like bi-county commissions such as the Maryland-National Capitol Park and Planning Commission and the Washington Suburban Sanitary Commission, it is not subject to the charter budgetary requirements. Montgomery County v. Yost, 223 Md. 150, 162 A.2d 462 (1960). The State Board of Education has important supervisory powers over the local boards. Wilson v. Board of Education of Montgomery County, 234 Md. 561, 200 A.2d 67 (1964); Zantzinger v. Manning, 123 Md. 169, 90 A. 839 (1914); see also School Com'rs of Caroline County v. Breeding, 126 Md. 83, 94 A. 328 (1915). While the county government has power to reduce amounts requested in the local school board's budget, that power does not run to the minimum tax, now forty cents on each one hundred dollars of assessable property; as to the minimum, the county government is under the imperative duty to levy the amount requested. Board of School Commissioners of Anne Arundel County v. Gantt, 73 Md. 521, 21 A. 548 (1891).

Viewed within this framework, the clarity of the statutory mandate that all the amounts collected on taxes for the school levy shall be paid to the Board is emphasized. In Gantt, the question was whether the County Commissioners could deduct from the school levy the treasurer's commissions for collecting and the amounts allowed to the taxpayers for prompt payment. The order of the lower court refusing a mandamus to pay over the full amount without the deductions was reversed. Judge McSherry, for the Court, said:

'From these several provisions of the general and local laws it is quite apparent that when the board of school commissioners make demand upon the county commissioners for an appropriation it becomes the duty of the latter to levy under article 77, § 22, the amount required by the school board up to 10 cents on the $100 of taxable property. This duty is an imperative one. It is equally clear that when more than 10 cents on the $100 is required, the county commissioners have, under section 123, art. 2, of the Local Code, a discretion to levy not exceeding 10 cents additional. But when the levy is actually and unconditionally made, the...