School Com'rs of Baltimore City v. State Board of Ed.

• Citation: 26 Md. 505
• Parties: THE SCHOOL COMMISSIONERS OF BALTIMORE CITY v. THE STATE BOARD OF EDUCATION.
• Decision Date: 12 March 1867
• Court: Court of Appeals of Maryland

26 Md. 505

THE SCHOOL COMMISSIONERS OF BALTIMORE CITY v. THE STATE BOARD OF EDUCATION.

Court of Appeals of Maryland

March 12, 1867

Appeal from the Superior Court of Baltimore City.

This was a petition filed by the appellees praying for a mandamus against the appellants, commanding them to use in the public schools and high schools of Baltimore city such text-books as had been or might be prescribed by the State Board of Education, as the uniform series of text-books to be used in the schools of the State.

The allegations of the petition and answer are briefly stated in the opinion of this court.

There was no dispute as to the facts of the case. And after final hearing of the cause the court below, (Martin, J.,) filed the following opinion and order:

"In this case I will sign an order making absolute the rule to show cause why a mandamus should not issue, as prayed for in the petition, on the ground that upon the true construction of the Act of 1865, ch. 160, the Legislature of Maryland, in the exercise of its paramount police power over all the municipal corporations of the State, in connection with the high purpose of establishing in each county, and in all the cities, a system of free public schools, is to be considered as having confided to the State Board of Education the important duty of selecting and prescribing the kind of text-books to be used in all the public schools, and in the high schools of the State, including the City of Baltimore; and having determined on the character of the books proper to be adopted as text-books, then to impart to the series uniformity; and that the constitutional right of the Legislature to pass an Act conferring the authority on the State Board of Education belongs to that department of the government as the parent power from which all the political corporations of State derive their existence, and is recognized and retained under the grant of power to be found in the 3rd section of the 8th Article of the Constitution of 1864. 15 Md. 380. Assuming that the allegations contained in the petition are true, and they are not controverted by the answer of the defendants, then it is clear, on the cases of Rex v. Barker, 3 Burr. 1268; Kunkel v. Winemiller, 4 H. & McH. 429, and Harwood v. Marshall, 9 Md. 83, that the petitioners are entitled to the writ of mandamus, as affording the only specific and adequate remedy through the instrumentality of which they can be placed in a position to discharge the duties and perform the services imposed upon them by the Act of Assembly to which I have referred.

It is thereupon this 2nd day of January, 1867, by the Superior Court of Baltimore City, adjudged and ordered, that no sufficient cause having been shown, nor any reason appearing why a mandamus should not issue as prayed, that the rule be made absolute, and that a mandamus issue as prayed."

From this order the respondents appealed.

The cause was argued before BOWIE, C.J., and BARTOL GOLDSBOROUGH, COCHRAN and WEISEL, JJ.

Wm. Price, City Counsellor, and C. L. L Leary, City Solicitor of Baltimore City, for the appellants, argued:

1st. That the Act of 1865, ch. 160, entitled "An Act to add a new Article to the Code of Public General Laws, to be entitled 'Public Instruction,' providing a uniform system of free public schools," etc., so far as the same may conflict with the Acts of the General Assembly of the State, and the ordinances of the City of Baltimore existing and in force at the time of the adoption of the new Constitution of the State, is repugnant thereto, and therefore null and void.

Under the last clause of the 3rd section of Article 8, of the new Constitution, the School Commissioners of Baltimore City irrespective of the Act of 1865, ch. 160, "remain" as they were "constituted" when the Constitution was adopted. The School Commissioners of Baltimore City and the system of public instruction administered by them were organized and their powers defined by the ordinances of the Mayor and City Council of Baltimore, passed in pursuance of the following Acts of Assembly: Acts of 1825, ch. 162, sec. 21; 1827, ch. 183; 1836, ch. 220; 1837, ch. 285; 1845, ch. 120; 1849, ch. 146; 1852, ch. 287; 1858, ch. 295.

Ordinance No. 40, of Revised Ordinances of 1858, provides for the organization of the Board of School Commissioners of Baltimore City, and by sec. 6, of said ordinance, it is made the duty of said Board "to employ teachers and determine their salaries; to prescribe the courses of study, and the books to be used; to make all such by-laws for their own government, and all such rules and regulations for the management of the schools as they may deem expedient," etc.

Under the last clause of the 3rd section of the 8th Article of the Constitution above referred to these Acts of Assembly and the above-mentioned city ordinances, under and by virtue of which the Board of School Commissioners of Baltimore City were "constituted" and "appointed," remain in full force, and are intended to operate as constitutional provisions. The system of public instruction administered by said board is designed to "remain" as it was organized under said laws and ordinances, and as a separate and distinct system; and the Legislature, in providing by law for a uniform system of free public schools, at its first session after the adoption of the Constitution as required by sec. 4, of Art. 8, is bound to recognize the separate existence of the school system of the City of Baltimore, and is prohibited from interfering with it.

The last clause of the 3rd section of Article 8, by which the constitution of the Board of School Commissioners of Baltimore City is made subject to such alterations and amendments as may be made from time to time by the General Assembly, etc., confers authority on the Legislature to make such alterations and amendments only after a general system shall have been established for the State as required by the 4th section of Article 8. It was the intention of the framers of the Constitution that the city system of public instruction, as it existed when the Constitution was adopted, should be incorporated into the State system, and its efficiency or inefficiency tested and determined, and that the Legislature afterwards should be at liberty to alter or amend it, as circumstances might require. See 2 Debates, Maryland Convention of 1864, pp. 1227, 1228.

For the rules of construction of the Constitution, we refer to Bandel v. Isaac, 13 Md. 223. State v. Mace, 5 Md. 351. Manly v. State, 7 Md. 147.

2nd. Even if the above construction of the present Constitution be not affirmed by the court, we contend that the provisions of the Act of 1865, ch. 160, in relation to the use and selection of text-books, are inapplicable to the public schools of Baltimore City, and they are excluded from its operation. Act, 1865, ch. 160; title 1, sub-ch. 2, sec. 2, p. 270; title 1, sub-ch. 3, sec. 7, p. 273; title 2, sub-ch. 7, sec. 1, p. 285.

Wm. Schley and John M. Frazier for the appellee.

The petitioner is a public body, created by the second section of the 8th Article of the Constitution. The defendant is a public body, recognized by the third section of the same Article of the Constitution.

By the Act of 1865, ch. 160, it was enacted that there shall be a uniform system of free public schools in each county of the State and in every incorporated city, and that the supervision and control of public instruction should be in the State Board of Education, in the State Superintendent of Public Instruction and in Boards of School Commissioners for the City of Baltimore and for each county, and that the State Board of Education should select a uniform series of text-books, for use in every public school and high school established or aided under said Act, etc., secs. 2-5.

The petition states that the State Board of Education established a uniform series of text-books, and notified the several Boards of City and County School Commissioners that they had done so; but the Board of School Commissioners of Baltimore City declined and refused to recognize the right of the State Board of Education to prescribe a uniform series of text-books to be used in the public schools and the high schools of Baltimore City; and claim the right to use in the public schools and in the high schools of Baltimore City such books as they consider proper to be used in said schools, and have adopted for use, and are using in said public schools and in the high schools of Baltimore City, certain books, not included or embraced in the uniform series of text-books, selected by the State Board of Education; and have not introduced, and are not using in said schools, certain of the text-books selected by the State Board of Education, as part of the uniform series of text-books, etc.

The petitioner prayed for a rule requiring the defendant to show cause why a mandamus should not issue, commanding the defendant to use in the public schools and in the high schools of Baltimore City such text-books only as have been, or may be prescribed by the State Board of Education, as the uniform series of text-books to be used in the schools of the State.

An answer was filed to said petition on the 18th of May, 1866, admitting the allegations of the petition, but insisting that, upon the true construction of the Constitution and the Act of 1865, the State Board of Education has no control over the School Commissioners of Baltimore City. And the answer further insists that defendant is not a corporation.

There being no controversy as to facts, the inquiry is limited to the true construction of the Constitution, said Act of 1865, and the ordinances of the City of Baltimore.

On the part of the appellees it is insisted that:

1st "The ...