Board of Commissioners of Public Schools v. County Commissioners

Bowie, C. J., delivered the opinion of this Court: The application, for the mandamus in this case, was resisted and refused, upon the ground that, ccthe Act of the Genera] Assembly of Maryland, requiring the Commissioners of Allegany County to levy the balance estimated by the Board of Commissioners of Public Schools, and reported to the commissioners of the'county, as necessary for the support of the. schools of the county, is unconstitutional and void; because contrary to Art. 7, sec. 8, of the State Constitution, which ordains, “that the County Commissioners shall exercise such powers and duties only as the Legislature may from time to time prescribe, but such powers and duties, and the tenure of office shall be uniform throughout the State.” It is said, there is no law conferring on the commissioners of the counties generally, power to make provision for public .schools, and therefore the Act for Allegany County, is special, local and unequal, contrary to- the letter and spirit of the Constitution, which designed all parts of the State, should bo subject to the same taxation, for the .same objects. When the organic law, imposed this feature of uniformity upon the County Commissioners and other county officers, it chunot be supposed it was designed to ignore the varieties of situation and condition of the people of the several counties, and the different institutions established among them. The levy courts for which the County Commissioners were substituted, had exercised from the organization of the State Government, the power of levying taxes for every local purpose which the peculiar wants of each county might require, under the sanction of general or special Acts of Legislature. The legislation of the State exhibits various systems of internal regulation in respect to roads, schools, paupers and criminal trials, in the several counties, all of which ultimately involve the exercise of the power of taxation.

Some of these systems, since the adoption of the New Consfcitu ⁴⁵⁸ tion, have been codified as part of the Public Local Law of the State. If the position assumed by the appellees in this case be correct, the laws requiring provision for the support of the poor, repairs of county roads, or the support of paupers, which are not uniform throughout the State, and require the levying of taxes for such purposes, are “ipso fado” void, because not within the powers legitimately granted by the Constitution. Uniformity of power does not necessarily imply identity of purpose or object. The difference between power and object is, that, the one is an attribute, faculty or means; the other, an end, or fact to be accomplished.

Power, is general, object is special. As in mechanics, the motive power may be applied to an almost infinite variety of uses; so in politics, the power of taxation, which is the great motor of government, may be exercised for the promotion of every object of society, among the chief and noblest of which is, the diffusion of knowledge and education of the people. The “power to levy all needful taxes and to pay and discharge all claims on or against the county, which have been expressly or impliedly authorized by law,” (conferred by Art 28, sec. 3, Code of Maryland,) conveys authority and imposes the duty of providing for any local object sanctioned by the Legislature. “It is a well settled principle that, when a statute confers a power upon a corporation, to be exercised for the public good, the exercise of the power is not merely discretionary, but imperative; and the words power and authority in such case may be construed duty and obligation.” Dwarris on Statutes, 712. Mayor & C. C. of Balto. vs. Marriott, 9 Md. Rep., 174 .

In this instance, the commissioners of the county are not left to inference, as to their duty and obligation to exercise the power of taxation, but are expressly enjoined to exert it for the most salutary public purposes. The power here called into requisition, is uniform, vested in the com ⁴⁵⁹ missioners of all the counties in the State, as is indicated in the Public General Laws. Its application to various specific objects, is shown by the Public Local Laws. If the object of the Constitution in requiring uniformity in the powers, duties and tenure of the commissioners of the county, and other local officers was, as has been suggested, to suppress a species of local legislation, which had grown up under the former Constitution, the means adopted, were very inadequate to the end.

It would violate the independence of the several departments of Government, and disturb the constitutional distribution of power among them, if the judiciary should intervene and arrest the exorcise of wholesome legislative authority upon the ground of repugnance to the Constitution, unless the usurpation of power was clear and indisputable, not merely inferential and argumentative. State use of Wash. Co. vs. The Balto. & Ohio R. R. Co., 12 G. & J., 438 . 15 Md. Rep., 477 . For these reasons we think the Act of 1860, ch. 335, codified among the Public Local Laws, Art. 1, secs. 142 to 157, inclusive, is constitutional and valid.

The 155th section of that Article enacts, “that the balance necessary for the support of the schools, shall be annually estimated and determined by said Board of Commissioners of Public Schools, who shall report the same to the County Commissioners, who are hereby authorised and required to levy annually, the sum so estimated and reported upon the assessable property of Allegany County, to be collected in the same manner as other taxes now are or shall be hereafter collected.” The prayer of the appellants’ petition, filed on the 20th of February 1862, and founded on this section, is for a writ of mandamus, directing the County Commissioners of Allegany County, at their next levy of taxes in the year 1862, to levy for the use of the petitioners the sum of ten thousand dollars, so estimated and determined by the school board, and so refused by said County Commissioners ⁴⁶⁰ and which they still refuse to levy, (being the estimate for the balance due for the support of schools for the year ensuing the 1st of July 1861,) and if such relief additional to the above is deemed proper, to order said County Commissioners to levy at their next meeting for the annual levy of taxes for the yéar then next ensuing, such sum as the petitioners may estimate and determine to be the necessary balance for the support of the public schools of the county for the year ensuing the next annual levy of taxes,” provided it does not exceed the limit fixed in said section 155, of the-Public Local Laws. The relief prayed, is both prospective and retrospective. The appellants anticipate, because the County Commissioners have refused to assess the sum estimated and reported in the year 1861, they will refuse to assess that which might be estimated and reported in the year 1862, and pray a mandamus to compel the appellees to do an act which they had not refused to do. However natural and strong the presumption, that the ajrpellees would refuse in the then current year, to levy the sum to be estimated, as they had done in the year preceding, to levy the sum estimated and reported, this Court cannot act upon such presumptions.

A mandamus will not be granted in anticipation of a defect of duty or error in conduct. Tapping on Mandamus, 63. The other aspect of the prayer, requires a mandamus to enforce a levy for a past year, which the law requires to be assessed within certain definite periods then passed. The estimates, it has been seen, were required by law to be annual, and the levies to be annual.

Is it competent for a judicial tribunal, to direct a board of commissioners to impose a tax for special or particular purposes after the time prescribed by law ? This question occurred very early in our judiqial history, and was decided adversely to the petitioner, a decision which has been generally acquiesced in ever since. In Ellicott vs. The Levy Court, 1 H. & J., 360 , the peti ⁴⁶¹ 'cioner prayed for a mandaimts, to compel the Levy Court to assess a sum of money required by a special law to be levied at the same time with other county charges, and those charges were, by general law, directed to he laid within certain periods then elapsed. Judge Chase said: “The Act of Assembly directs the money to be levied by a particular day — this is a special authority, and as the time has elapsed, the Court thinks it would be improper to order the mandamus, as the Levy Court would have no authority under the law, to make the levy.” For the same general principles as to the exercise of specially delegated powers.

See Kerr vs. The State, 3 H. & J., 560 . The State vs. Merryman, 7 H. & J., 79. The object of granting the writ of mandamus, being to prevent a failure of justice, and to provide an immediate and efficacious remedy, it follows, that it will not be granted, if, when granted, it would be nugatory, in accordance with the maxim' “lex non eogii inuiilia.” Tapping on Mandamus, 67. Hence, although, we differ with the learned judge below, on the constitutional question, wre are obliged to concur in refusing the mandamus for the other reasons assigned.

We have less reluctance in reaching this conclusion, as we are satisfied, the appellees acting upon constitutional scruples as to their power to assess the sums required for the public schools, will, upon having their doubts removed, be as ready to execute the law, as they were before resolute in opposing it. [Note. The following is the opinion of the Court below, (Weisel, J.,) filed with the order dismissing the petition.) “The plaintiffs in this case filed their petition on the 20th February 1B62, praying that the writ of mandamus might ⁴⁶² be issued requiring the defendants to levy on the assessable property of Allegany County the sum often thousand dollars, to gratify the estimate made by the plaintiffs of the balance due for the support of the common schools of Allegany County for the year ensuing- the 1st day of July 1861, and also the estimate that might be made for the same purpose for the year ensuing the first day of July next, claiming this right and duty under the 155th section of Article 1 of the Public Local Laws of Maryland. “The answer to the petition denies this right and claim, and resists the application for the writ, on the ground that the law under which it is claimed, so far as it purports to impose this duty on the County Commissioners, is unconstitutional and void, and not obligatory upon them. “The argument on the motion to show cause why the writ should not issue, has been confined to this constitutional question, and without adverting to the other questions which might arise on this application, I will at once direct my attention to the consideration of the constitutionality of the law, in the particular referred to, the importance of which is readily perceived and acknowledged. “The Constitution of the State, Art. 7, sec. 8, provides, that the County Commissioners ‘shall exercise such powers and duties only, as the Legislaturemay from time to timeprescribe,’ ‘but such powers and duties, and the tenure of office, shall be uniform throughout the State, and the Legislature shall, at or before its second regular session, after the adoption of this Constitution, pass such laAvs as may be necessary for determining the number for each county and ascertaining and defining the powers, duties and tenure of office of said commissioners; and until the passage of such laws the commissioners elected under the Constitution shall have and exercise all the powers and duties in their