Borders v. Board of Ed. of Prince George's County

• Decision Date: 15 October 1970
• Docket Number: 241,Nos. 182,s. 182
• Citation: 269 A.2d 570,259 Md. 256
• Parties: Eugene BORDERS et al. v. BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY et al.
• Court: Maryland Court of Appeals

Page 256

259 Md. 256

269 A.2d 570

Eugene BORDERS et al. v. BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY et al.

Nos. 182, 241.

Court of Appeals of Maryland.

Oct. 15, 1970.

Charles A. Dukes, Jr. Hyattsville, (Green, Swingle, Dukes & Mann and Paul E. Rosenberg, Hyattsville, on the brief) for appellants.

Paul M. Nussbaum, Mt. Rainier, for Board of Education for Prince George's County, part of appellees and by Gene J. Tischer, Associate County Atty., (Lionell M. Lockhart, County Atty., and Harry L. Durity, Deputy County Atty., Upper Marlboro, on the brief) for other appellees.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

PER CURIAM:

The present appeals represent the combination of two similar challenges to the redrawing of school district lines in Prince George's County, Maryland. The complainants are the parents of school age children in the Cheverly and Radiant Valley sections of this county. They have alleged in petitions for declaratory and injunctive relief that through redistricting, their children, 'solely because of their race,' are being transferred to different schools than they rpeviously attended. This redistricting by the Board of Education of Prince George's County, they claim, is in violation of the 14th Amendment to the United State Constitution, 'Article 2, Maryland Declaration of Rights, 20 U.S.C., Section 884, and Title IV '1964 Civil Rights Act,' Sec. 601, et seq.' The appellees, the Board of Education and the Board of County Commissioners for Prince George's County, responded to these allegations by way of demurrer and motions raising preliminary objections claiming 1) that the laws of Maryland give the county board of education absolute authority to determine geographical attendance areas and 2) that the laws of the United States give a board of education the right to establish such attendance areas upon factors that include the racial balancing of pupils.

Facing these narrow legal questions the Circuit Court for Prince George's County (Dorsey, C. J., Powers and Meloy, JJ.) with Chief Judge Dorsey dissenting, ruled that the redistricting in question was constitutionally permissible and within the discretion vested in the Board of Education. The court sustained the demurrer without leave to amend. In the second case, because of the identity of the parties and issues, Judge Powers granted motions raising preliminary objections. We conclude that it was error to dismiss the bills of complaint in both cases.

These actions were brought under the Declaratory Judgment Act, Code (1957, 1967 Repl.Vol.), Article 31A, and it is well settled in this State and elsewhere that the only place a demurrer has in declaratory judgment is to challenge the appropriateness of the remedy. Merc.-Safe Dep. & Tr. Co. v. Reg. of Wills, 257 Md. 454, 263 A.2d 543 (1970); Garrett Co. Sanitary Dist., Inc. v. Mayor and Town Council of Oakland, 249 Md. 400, 240 A.2d 228 (1968); Hunt v. Montgomery County, 248 Md. 403, 237 A.2d 35 (1968); Md. Committee for Fair Representation v. Tawes, 228 Md. 412, n. 4, 180 A.2d 656 (1962); Reed v. Pres. and Commissioners of Town of North East, 226 Md. 229, 172 A.2d 536 (1961); John B. Robeson Associates, Inc. v. Gardens of Faith, Inc., 226 Md. 215, 172 A.2d 529 (1961); Shapiro v. Board of County Com'rs, 219 Md. 298, 149 A.2d 396 (1959); Case v. Comptroller of State of Maryland, 219 Md. 282, 149 A.2d 6 (1959). This same conclusion was expressed in Shapiro v. Board of County Com'rs, supra at 302-303, 149 A.2d at 398 where Judge, later Chief Judge, Prescott said for the Court:

'It should be borne in mind that a demurrer is rarely appropriate in a declaratory judgment action. * * * The test of the sufficiency of the bill is not whether it shows that the plaintiff is entitled to the declaration of rights or interest in ...