Thomas v. Field

Offutt, J., delivered the opinion of the Court. 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, ail 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 appellees in this 'caso, filed an answer1 to that, petition in which, after denying the correctness of the legal conclusions upon which the petition rested, and calling for proof of its ¹³⁰ 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, secret taries, 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 ¹³¹ 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 no1 power to review the manner in which they exercised that discretion.

Miles v. Bradford, 22 Md. 170 ; Devin v. Belt, 70 Md. 354 ; McCrea v. Roberts, 89 Md. 250 . 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 ¹³² (Ordinance Ho. 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 Buies: “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 Oomissioners 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 one hundred per cent., and they attach hereto, ¹³³ 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 bo 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, Sub-section 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, Ibid., it is provided: “The Board of Estimates shall be the head of the third Sub-Department of Finance, and shall consist of the Mayor, City Solicitor, Comptroller, President of the Second Branch City Council and President of the Board of Public Improvements. * * * The said Board shall have power at any time to summon before it the heads of the departments and sub-departments and all municipal officers and special commissions or boards.

The said Board shall annually, between the first day of October and the first day of Hovember, meet, and ¹³⁴ by an affirmative vote of a majority of all the members make out the following three lists of moneys to be appropriated by tbe City Council for the next ensuing year: First, a list to be-known as tbe ‘Departmental Estimates’ of the amounts estimated to be required to pay tbe expenses of conducting tbe public business for the next ensuing fiscal year, including tbe expenditures for tbe City Council for tbe salaries of its members, officers and expenses; said list shall be prepared in such detail as to the aggregate sum and the items thereof allowed to the two Branches of the City Council, each department, sub-department, municipal officers not embraced in a department and special commissioners and boards as tbe said Board shall deem advisable. In order to enable said Board to make such list, the Presidents of the two Branches of the City Council, the heads of the departments, heads of sub-departments, municipal officers not embraced in a department, and special commissioners or boards shall, at least thirty days before tbe said list is hereby required to be made, send to the said Board in writing estimates of tbe amounts needed for tbe conduct, respectively, of tbe City Council, departments, sub-departments, municipal officers not embraced in a department, commissioners or boards for the next ensuing fiscal year. * * * Tbe said estimates shall specify, in detail, the objects thereof, and the items required for the expenses of the City Council and the respective departments, sub-departments, municipal officers not embraced in a department, and special commissioners or boards, as aforesaid, including a statement of each of tbe salaries of the members of the City Council and its officers and clerks, and the salaries of tbe deputies, assistants, clerks, employees and subordinates in each department, sub-department, municipal office or special commission or board.” It then provides that an ordinance shall he drafted for submission to the City Council providing appropriations ¹³⁵ sufficient to meet the amounts called for hy the estimates thus made, and that when the ordinance thus submitted shall have been adopted by the City Council and approved by the Mayor it shall be known as the Ordinance of Estimates, and “said several sums shall he and become appropriated, after the beginning of the next ensuing fiscal year, for the several purposes therein named, to be used by the City Council, departments, sub-departments, municipal officers not embraced in a department, and special commissions or boards therein named, and for no other purposes or uses whatever,” and also that no “appropriation provided for in said ordinance shall be diverted or used under any circumstances for my purpose than that named in said ordinance.” It was under the authority of the several statutes to which we have referred, and under the circumstances narrated in the pleadings from which we have quoted, that the Mayor and City Council of Baltimore included in its Ordinance of Estimates for the year 1922 the item which is the basis of this proceeding. Much of the very able argument addressed to the Court on behalf of the appellants was directed to the proposition that the Mayor and City Council have, by virtue of the Constitution of Maryland and laws passed in pursuance' of powers therein contained, the power to amend or repeal any provision of the city