Shriver v. Hering

²⁰ Pearce, J., delivered the opinion of the Court. Robert Shriver, a citizen and taxpayer of Allegany county, on May 15th, 1902, filed a petition in the Circuit Court for Anne Arundel county against Joshua W. Hering, Comptroller of the State of Maryland, praying for a writ of mandamus commanding said Comptroller, in the distribution to be made December 15th, 1902, and at each succeeding quarterly distribution, to apportion the State school tax levied in each county and in the city of Baltimore, for the support of public schools therein, in proportion to ther respective white population between the ages of five and twenty years, instead of apportioning the same according to their respective entire population between said ages, as had always been the method of apportionment since the institution of the public school system in eighteen hundred and sixty-five. The defendant answered alleging that the method of apportionment pursued was that required by the statute regulating the same, and that he proposed to observe the statute as heretofore. The petitioner demurred to this answer; issue was joined on the demurrer, and after argument the writ was refused and the petition dismissed, from which order this appeal was taken.

The case was very earnestly and zealously argued in behalf of the petitioner, but we do not think there should be any hesitation in affirming the order of the Circuit Court. Counsel on both sides unite in stating that the question at issue is simply the construction of sections 98 and 102 of Art. 77, of the Code of Public General Laws, which are as follows : Section 98. “ The Comptroller shall apportion the sum appropriated for the support of the colored schools of the several counties and the city of Baltimore, in proportion to their respective population between the ages of five and twenty years ; said apportionment to be made at the time he apportions the levy for the white schools.” Section 102. “As soon as the Comptroller shall have received from the city of Baltimore and the several counties, returns of the amount of the State school tax, levied in each ²¹ county and the city of Baltimore, he shall immediately thereafter apportion the amount of the whole levy to the several counties and the city of Baltimore, in proportion to their respective population between the ages of five and twenty years.” The petitioner’s counsel was explicit in his oral argument, in declaring that these sections of the law are valid and constitutional enactments, and in his brief says they “are word for word the same and the plaintiff merely asks that they be given the same construction.” The construction for which the petitioner thus asks, we must understand to be purely a judicial construction since that is the only one we have the power to make, and such construction must be made upon the language of these sections, and not upon the practice which may have been pursued by the Comptroller in the absence of a previous judicial construction. Now looking to the language of these two sections as they stand, it cannot be doubted that they should, and must, receive the same construction, and that the only construction that can be placed upon them by a Court, which is precluded from the exercise of legislative power, is that placed by the Comptroller upon section 102. The word “their” which in each of these sections precedes the words “respective population,” grammatically and logically can only relate to their immediate antecedents, “the several counties and the city of Baltimore.” No sound argument to the contrary can be based upon anything to be deduced from either of these sections, and accordingly the petitioner has been forced to resort to what he regards as equitable grounds for a different construction of section 102, based upon alleged unequal and unfair results from the method of distribution directed therein.

But however his proposition may be disguised in the fervor of argument, it resolves itself, when analyzed, into this, that the Court should lead the word “white” into section 102, and this we cannot do. The petition alleges, and the answer admits, that in distributing the sum appropriated to colored schools, it has been the Comptroller’s practice to make the apportionment in proportion to the respective col ²² ored population of the several counties and the city of Baltimore between the ages of five and twenty. This the petition does not ask us to change, and if we should grant the writ prayed for here, we should be compelled in order to give the same construction to the same language in both sections, to read into section 98, the word “colored” and thus to impose an erroneous judicial construction upon both these sections, because another department of government, possessing no power to make a judicial construction, had