73 Md. 521 | Md. | 1891
delivered the opinion of the Court.
This is an appeal from an order refusing a mandamus. The Board of County School Commissioners of Anne Arundel County filed a petition against the County Commissioners and County Treasurer of that county, praying that a mandamus might issue commanding . the respondents to pay over to the relators the full amount of taxes levied in eighteen hundred and eighty-nine for the use of the' public schools, without abatement or diminution. The County Commissioners claimed the right to deduct from the sum so levied the amounts of the treasurer's commissions for collecting, and the amounts allowed to tax-payers by way of discount for prompt payments. The ma/tidamus was refused, and hence this .appeal.
It appears by the record that on the twenty-first day of May, eighteen hundred and eighty-nine, the County Commissioners levied upon the taxable property of the county that year, for the use of the public schools, twenty cents on the hundred dollars, which levy yielded the sum of $21,596.31. By the general school law, Code, Art. TT, sec. 22, it is provided, in substance, that if the apportionment of the State school fund be insufficient for the needs of the public schools of any county,
Sec. 228 of the same local article, in defining the duties of the County Treasurer, provides that “ he shall reserve out of the money collected by him for county purposes generally and public schools, a sufficient sum to pay the amount levied in each current year by said Commissioners, for public schools, and shall pay the same over to the Board of County School Commissioners of said county ” in-Tour equal instalments. The mode of compensating the treasurer for his services is prescribed by sec. 235, which enacts that “ the said treasurer shall he entitled, as compensation for his services, to a commission, to be fixed by the county commissioners, of not more than two and a half per centum on the amount of taxes levied for county purposes and actually collected, * * * *’ and the said commissioners are authorized and directed in their several annual levies to levy an amount sufficient to pay the commissions and salaries so allowed.”
From these several provisions of the general and local laws it is quite apparent that when the Board of School Commissioners make demand upon the county commissioners for an appropriation it becomes the duty of the latter to levy, under Art. 77, sec. 22, the amount re
We do not mean to say that as to the ten cents on the hundred dollars, which the county commissioners may in their discretion levy over and above the first ten cents
We’ have said that the treasurer was made a party respondent in this case. In Annapolis Savings Institution vs. Bannon, et al., 68 Md., 462, it was held that the treasurer was the mere servant of the county commissioners. It was consequently, as is well settled, an error to make him a party to this proceeding.
The amount levied for the schools stands to the credit of the appellants on the hooks of the appellees. That amount is fixed and ascertained, and the plain duty of the county commissioners is to pay it over. For a breach of that duty mandamus is the appropriate remedy. An action at law could accomplish nothing more than to reduce to a judgment the claim confessedly levied hy the county commissioners, and a refusal to pay that judgment would warrant the issuing of a mandamus to compel the commissioners to make a levy for its payment. They have, in fact, made the levy already, and their refusal to turn over the money thus levied can only be remedied hy a mandamus requiring them to do so. But, as the writ can only issue against them, and not against their subordinate- officer, it would have been error to have granted it according to the prayer of the petition.
For this misjoinder the Court below, was right in refusing the writ, and upon that ground its order must he affirmed.
Order affirmed.