Thomas v. Field

• Decision Date: 16 March 1923
• Docket Number: 34.
• Citation: 122 A. 25,143 Md. 128
• Parties: THOMAS ET AL. v. FIELD ET AL., BOARD OF SCHOOL COMMISSIONERS, ETC.
• Court: Maryland Court of Appeals

122 A. 25

143 Md. 128

THOMAS ET AL. v. FIELD ET AL., BOARD OF SCHOOL COMMISSIONERS, ETC.

No. 34.

Court of Appeals of Maryland

March 16, 1923

Appeal from Baltimore Court of Common Pleas; Henry Duffy, Judge.

"To be officially reported."

Petition by Catherine B. C. Thomas and others for mandamus against Isaac S. Field and others, constituting the Board of School Commissioners of the Mayor and City Council of Baltimore. From an order overruling a demurrer to the answer and dismissing the petition, petitioner appeal. Affirmed, with costs.

Argued before BOYD, C.J., and PATTISON, URNER, STOCKBRIDGE, and OFFUTT, JJ.

Jacob M. Moses and Wm. Cabell Bruce, both of Baltimore, for appellants.

A Walter Kraus and Wirt A. Duvall, Jr., Asst. City Sols., both of Baltimore (Roland R. Marchant,, City Sol., of Baltimore on the brief), for appellees.

OFFUTT J.

The ordinance of estimates of the mayor and city council of Baltimore for the year 1922 contains the following provision:

"Allowance of fund to the board of school commissioners to be used in their discretion solely for the purpose of equalizing salaries of secondary teachers on the basis of equal pay for equal work without distinction as to sex or color."

The board of school commissioners of Baltimore City, which will be hereafter referred to as the school board, declined to apply the fund thus appropriated to the purpose indicated in the ordinance, or to expend it at all. Thereupon the appellants, all of whom are residents and citizens, and some of whom are taxpayers, of the city of Baltimore, filed a petition in the court of common pleas of Baltimore City asking that court to issue a mandamus commanding the school board of Baltimore City "to exercise the discretion vested in them as aforesaid and to apply the said sum of $40,525.80 to the equalization of the present salaries of said secondary teachers on the basis of equal pay for equal work, without distinction as to sex or color." The respondents, the appellants in this case, filed an answer to that petition in which, after denying the correctness of the legal conclusions upon which the petition rested, and calling for proof of its allegations of fact, they said:

"Under section 99 of the City Charter (edition of 1915) the board of school commissioners of Baltimore City, is given absolute discretion in the matter of fixing the salaries of all officers, teachers, secretaries, clerks, and employees of said board, the only restriction upon said power being that said salaries, in the aggregate, shall not exceed the amount appropriated therefor in the annual ordinance of estimates; that the adoption or rejection of the so-called principle of equal pay for equal work in the administration of the public schools of Baltimore City is a matter committed solely to the discretion of these defendants, and that mandamus will not lie to compel them to adopt said principle in the management of said public schools; that under the law, as it exists, no such appropriation item can be mandatory in its nature and that, even if this were not true, there was no attempt on the part of the board of estimates or the mayor and city council of Baltimore to make this item mandatory, as will fully appear by reference to the section of said ordinance appropriating said fund, which specifically states that said fund is to be applied in the discretion of the board of school commissioners."

They also denied that the appellants had any right to maintain the action on the ground that they had no interest in its subject-matter. A demurrer filed to that answer was overruled by the court and the petition dismissed. From that order the present appeal was taken.

The principal question presented by the appeal is whether that provision of the ordinance of estimates to which we have referred was mandatory in its nature and amounted to a command to the school board to apply the fund appropriated to the equalization of the salaries of secondary teachers in Baltimore City, or whether it gave them the right to decide in their discretion, whether it should or should not be so applied.

Another question raised by the pleadings in the case is whether the mayor and city council of Baltimore, hereinafter referred to as the mayor and city council, had the power to adopt an ordinance carrying such a command, but that question can only become relevant in the event that it is decided that the direction to the school board as to the expenditure of the fund is mandatory. For, if the right to use it or not to use it was committed to their discretion, obviously the court had no power to review the manner in which they exercised that discretion. Miles v. Bradford, 22 Md. 170, 85 Am. Dec. 643; Devin v. Belt, 70 Md. 354, 17 A. 375; McCrea v. Roberts, 89 Md. 250, 43 A. 39, 44 L. R. A. 485.

Before considering the question first stated, we will advert briefly to the circumstances out of which it grows, and refer to such parts of the several ordinances and statutes defining the relative powers and duties of the board of estimates, the school board, and the mayor and city council, as relate to the question before us.

In addition to what has been stated above, the appellants in their petition allege:

"That, for some years, a persistent effort, attended by only a partial and fluctuating measure of success, was made by the public school teachers of Baltimore City, and a large body of citizens of said city, in sympathy with their just and generous aspirations, to secure the equalization of the salaries, payable to the public school teachers of said city, upon the fundamental principle of equal pay for equal work, without distinction as to sex or color; and that this effort resulted in the actual adoption and application of that principle by the mayor and city council of Baltimore, and its board of school commissioners, so far as the public schools of Baltimore City, other than its secondary schools, viz., the Teachers' Training Schools, the Eastern High School, the Western High School, the Colored Teachers' Training School, and the Colored High School, were concerned; and that finally the mayor and city council of Baltimore, acting through its proper agencies, the board of estimates and the city council, made the necessary provision for the application of said principle even to said secondary schools, in the annual ordinance of estimates of the mayor and city council of Baltimore for the year 1922 (ordinance No. 663), which was approved on the 19th day of December, in the year 1921, by appropriating to the board of school commissioners of Baltimore City the sum of forty thousand five hundred and twenty-five dollars and eighty cents ($40,525.80)."

The board of school commissioners instead of applying the fund to the equalization of the salaries of the teachers in the secondary schools, approved and adopted the following report of its committee on rules:

"Special fund in the budget for 1922 for 'equalization of salaries.' In pursuance of the authority delegated by the board, the committee has been considering the adjustment of the total salary allowance in the budget for 1922 to the individual salaries of all the teachers, principals, and other officials of the school system; and in this connection study has been given to the special fund of $40,525.80 added to the budget as an 'allowance to the board of school commissioners to be used in their discretion solely for the purpose of equalizing salaries of secondary teachers without distinction of sex or color.' As this amount of money is entirely inadequate to accomplish the equalization intended, and as the school board's carefully prepared provision for gradual 'equalization,' combined with certain special salary adjustments and the raising of the various salary maxima, particularly the elementary teachers' maximum, was stricken from the budget, the committee recommends that the board of school commissioners shall exercise its discretion by not undertaking any distribution whatever of this 'equalization fund.' "

In its answer in explaining that action it asserts that the secondary teachers employed in the public schools of Baltimore City have no just cause to complain of the manner in which the appellee has dealt with them in regard to increasing their salaries, and further answering it says:

"That from the year 1918 to the year 1922 they have allowed increases in the salaries of said secondary teachers (except in the case of principals), amounting to at least 100 per cent., and they attach hereto, as part hereof, a schedule showing the salaries allowed the various groups into which said secondary teachers are divided, covering the years 1918, 1919, 1920, 1921, and 1922."

Section 99 of the Revised Charter of Baltimore City (1915) in part provides:

"There shall be a department of education of the mayor and city council of Baltimore. The head of said department shall consist of a board of school commissioners composed of nine persons, who shall serve without pay, and who shall be appointed by the mayor in the mode prescribed in section 25 of this article, and removable as therein provided. * * * The salary of all officers, teachers, secretaries, clerks and employees shall be fixed by said board, not to exceed in the aggregate the amount appropriated by ordinance."

Under section 6, subsec. 22, the mayor and city council are given full power and authority:

"To establish in the city of Baltimore, in conformity with the provisions of this article, a system of free public schools. * * * To levy and collect, upon the assessable property in the city of Baltimore, as other taxes are levied and collected, such amount of taxes as may be necessary to defray all expenses incurred for educational purposes."

By section 36, Id., it is...