Duer v. Dashiell

This is an appeal from an order of the Circuit Court for Somerset County, directing a mandamus to issue requiring the appellant, who had been the secretary, treasurer and examiner of the former Board of County School Commissioners, to deliver the books and papers of the office to the appellee, who was elected to the same office by the present board.

Sec. 6, of Art. 77, of the Code, as it stood in the year 1898, directed the Governor by and with the advice and consent of the Senate to appoint a Board of School Commissioners for each county in the State. Sec. 18 of the same Article, directs every such board to meet for organization on the first Tuesday in August next succeeding their appointment and elect a person not a member of the board to serve as its secretary, treasurer and examiner, but is silent as to his tenure of office.

On August 2d 1898, the Board of School Commissioners of Somerset County, then in office, elected the appellant as their secretary, treasurer and examiner, and undertook to fix the duration of his term of office in the definite period of two years. He accepted the office and duly qualified by filing his bond as required by law and continued to discharge his official duties until that board of commissioners were legislated out of office by the Act of 1900, ch. 29. That Act repealed sec. 6, of Article 77, of the Code, under which the commissioners held office at the time of the appointment of the appellant to the office in question, and re-enacted it in such form as to require the Governor, by and with the advice and consent of the Senate if in session, to appoint a new Board of School Commissioners, for each county in the State, to go into office on the 1st Monday in May next, succeeding their appointment.

A new Board of School Commissioners for Somerset County were promptly appointed and confirmed under the Act of 1900, ch. 29. At their first meeting, which was held on the 1st Monday in May, 1900, they elected the appellee as their secretary, treasurer and examiner. He duly qualified and then demanded of the appellant the books, vouchers and other papers in his possession relating to the office, but the latter refused to deliver them, claiming that he was still in office and therefore entitled to their possession.

The appellee thereupon filed his petition in the Circuit Court setting out his election and qualification, the demand made by him upon the appellant for the books, vouchers and other papers relating to the office and the refusal by the appellant to comply with the demand, and praying for a mandamus to compel the delivery to be made to him. The appellant answered the petition admitting the demand and refusal, denying the title of the appellee to the office and insisting that his own election to the office on August 2d 1898, and his acceptance thereof and qualification constituted a contract between him and the Board of School Commissioners by virtue of which he was entitled to hold the office and receive its emoluments for the full term of two years, ending on August 2d 1900. The appellee demurred to the answer of the appellant and the Court sustained the demurrer and passed the order, from which this appeal was taken, directing the mandamus to issue.

Neither the former board of commissioners nor the present one, ever made any removal of the appellant from the office in question, but the present board treated the position as vacant when they came into office and they elected the appellee to fill it.

The first and fundamental question presented by this record is, did the appointment of the appellant as secretary, treasurer and examiner on the 2nd of August, 1898, by the Board of School Commissioners then in office and his acceptance thereof and qualification, give him a contractual right to hold the office for the full term of two years?

We have no hesitation in answering this question in the negative. It has long been settled that public officials are merely agents of the State for the carrying out of public purposes and that their selection and the fixing of the length of time for which they shall serve are matters of public convenience or necessity, and do not fall within the scope of the termcontract as applied to transactions between individuals out of which definite and vested rights of property arise. Crenshaw v.U.S., 134 U.S. 99; Newton v. Mahoning County Commrs.,100 U.S. 548; Hall v. Wisconsin, 103 U.S. 5; Regents v.Williams, 9 G. J. 635; Davis v. State, 7 Md. 150;Warfield v. County Commrs., 28 Md. 84.

The Boards of School Commissioners for the several counties of this State are quasi corporations of a public nature charged by law with "the general supervision and control of all schools in their respective counties," and are required "to build, repair and furnish the school houses," "pay the salaries of teachers," "purchase and distribute text-books," and generally secure an efficient administration of the public school system. It is requisite for the effectual discharge of this important public duty that, except in so far as restrained by law, each board of commissioners should have the power to select the agents designated by the statute for doing its work. This essential independence of action on the part of an incoming board composed, as in the present case, of entirely different persons from their predecessors would be unreasonably restrained and its usefulness greatly impaired if it were compelled to accept for the important office of secretary, treasurer and examiner a person not of its own selection who had been appointed by the outgoing board for such term of office as it saw fit to adopt.

We think it clear in this case first, that the former Board of School Commissioners who elected the appellant in August, 1898, had no power to fix the duration of his office for an indefeasible term of two years, secondly, that when the term of office of the former board was itsel vacated and destroyed by the Act of 1900, ch. 29, the appellant's term of office also came to an end except to the extent of his right to hold over until the appointment of his successor, and thirdly that his holding over ceased on May 6th, 1900, when the appellee was elected as his successor by the present board of commissioners and had duly qualified.

There having been no direct attempt by either the former or the present board of commissioners to remove the appellant from his office, the question of the nature and extent of the right of County School Commissioners to remove their secretary, treasurer and examiner, which was much discussed upon the briefs and in the argument of counsel, is not presented by the record in this case. His term of office was it is true brought to a close but that was in consequence of the passage by the Legislature of the Act of 1900, ch. 29, which resulted in the election, by the new board, of the appellee as their secretary, treasurer and examiner, upon the happening of which event the appellant's tenure ended.

The right of the appellee to the office being clear, has he adopted the appropriate remedy for its enforcement? It is admitted that mandamus is ordinarily the proper proceeding to try the title to an office but it is contended that in view of the decision of this Court and in the cases of Wiley et al.,Trustees, v. Board of School Commissioners of Allegany County,51 Md. 401, and Shober v. Cochrane, 53 Md. 544, the controversy in this case must be regarded as lying exclusively within the jurisdiction conferred upon the State Board of Education by sec. 11, of Art. 77, of the Code.

The powers and duties of the State board are defined in sections 8 to 17 inclusive of Art. 77. Briefly stated, that board are to have the general care and supervision of the public school interests of the State. They are to act as assistants and advisers to the various county boards, and. from time to time, issue circular-letters to teachers and commissioners on topics connected with the administration of the public schools, and they are given power to suspend or remove an examiner or teacher for certain specified causes. They are to use their best ability to cause the provisions of Art. 77 to be carried into effect, and to enact by-laws not in conflict therewith for the administration of the public school system. It is further provided that "they shall explain the true intent and meaning of the law, and shall decide, without expense to the parties concerned, all controversies and disputes that arise under it." The nature and extent of the jurisdiction thus conferred upon the State board to decide controversies and disputes arising in the administration of the public school system, as far as it applied to the facts of the two last mentioned cases, has been considered and passed upon by this Court. Wiley's case was a dispute between two sets of education officials, i.e., the trustees of a district school in Cumberland and the School Commissioners of Allegany County, in reference to the proper use of a certain schoolhouse. The issue there presented was held to fall within the scope of the power conferred by law upon the State board to decide all controversies and disputes arising under the provisions of Art. 77. That power was held to be summary and exclusive in its nature in controversies between those entrusted with the administration of our system of education or between the functionaries and the patrons or pupils of the schools; and as the power was comprehensive enough to deal with the issue in that case, it was held that a Court of equity should not interfere with its exercise.

In Shober's case the Board of School Commissioners held over after the expiration of their term of office because the Circuit Court, in which the power of appointment was at that time lodged, failed to appoint their successors. The board at their organization had appointed Cochrane as their secretary, treasurer and examiner, and after their term had expired and while they were holding over a dispute arose between them in reference to their right to elect a new secretary, treasurer and examiner. The dispute ended by two of the three commissioners proceeding to make the election. A contest also occurring between the old and the new examiners over the possession of the office, the whole controversy was submitted to the State Board of Education before whom all parties concerned, including the school commissioners appeared, and were heard. The State Board assumed jurisdiction of the controversy and "adjudged and determined" it in favor of Cochrane the old appointee. Shober, who was the new appointee, then applied for a mandamus to prevent his competitor from interfering with the office, and the Circuit Court refused to issue the writ. Upon an appeal, this Court in a short percuriam order affirmed the order of the Circuit Court upon the ground "that the power to decide the matter in dispute was vested in the State Board of Education, and that its decision thereon was final and conclusive."

Both Wiley's and Shober's case were disputes between functionaries of the department of public education over which it was the purpose of sec. 11, of Art. 77, of the Code, to give the State Board of Education jurisdiction. Neither of those cases involved, as the one now before us does, the important legal question of the effect of an Act of the Legislature repealing the law, under which a Board of School Commissioners were appointed, upon the tenure of office of a subordinate official appointed by the board while they were still in office. We do not think that it was the purpose of the Legislature in enacting sec. 11, to withdraw the determination of purely legal questions like this from the Courts and commit them to the board of education for decision. The real issue in this case is not one involving the proper administration of the public school system, but it is a question of the legal effect of the passage by the Legislature of the Act of 1900, ch. 29, upon the status of subordinate officials appointed by a school board which that Act legislated out of office.

The Circuit Court, therefore, had jurisdiction to entertain and pass upon the application for the mandamus and its order directing the writ to issue will be affirmed.

Order affirmed.

(Decided November 15th, 1900.)