22 Md. 121 | Md. | 1864
delivered the opinion of this Court.
The relators were incorporated by the Act of 1198, ch. 58, by the name of the Visitors of Allegany County School. Their corporate name was changed by an Act of December session 1824, ch. 4, to the Trustees of Allegany County School. The sum for which they pray a mandamus, commanding the appellee, to issue his warrant to the Treasurer, is claimed under three distinct Acts of Assembly. Two hundred dollars, part thereof, is alleged to have been granted by the 8th sec. of their Act of Incorporation, which enacts, that — “the Treasurer of the Western Shore shall pay to the aforesaid trustees, or their order, annually, as a public donation, the sum of two hundred dollars
The petitioners charge: .that “the old academy building” was found too small to accommodate the pupils, and in 1849 they applied to the county commissioners, who appropriated to their use, a lot of ground in perpetuity, of the public ground of the city, for the purpose of erecting a large and commodious academy; “that having no funds belonging to the institution wherewith to erect said building, by holding out to the citizens of the county, the rights, powers, and privileges granted them by the State, and the annual donations to tbe petitioners in their corporate character, the citizens of the county were induced to subscribe .large sums, by which the petitioners were enabled to build, and did build a large and spacious academy on said lot, at a cost of nearly $5,000,” etc.; and that the Comptroller has refused his warrant for the donations, and prays a mandamus.
The answer admits most of the matters of fact charged in the petition, but denies the right of the petitioners to the mandamus, for the reasons assigned, — among others,
The traverse to the answer presents several issues which may he reduced to two questions. 1st. Was there any sum of money due from the State to the petitioners? 2nd. If any was due, was there any appropriation to pay the amount? It is admitted that Resolution No. 50, 181 i, and Resolution No. 34, 1831, were passed, but it is contended, that the latter made no specific appropriation for the use of the relators, and that sec.' 8th of the Act of 1798, ch. 58, as well as the Resolutions aforesaid, were temporary and revocable, and were repealed by the Act of I860, ch. 335, sec. 13.
The Act of 1860, ch. 335, sec. 13, incorporated into the Public Local Laws of Allegany County in Art. 1, sec. 155 of the Code, does not expressly, or by necessary implication, repeal the Act a,nd Resolutions before cited; The language of that section, as far as necessary to be quoted, is: “The present school fund of Allegany County, and all other funds which may be applied to the purposes of education in said county, shall be paid directly to the Treasurer of the Board of Commissioners of Public Schools of Allegany County.” The word “fund” is used figuratively. The cause is put for the effect. The meaning is, the dividends, or interest accruing from the funds or capital invested for the use of Allegany County, and the dividends or interest upon all other funds which may be thereafter applied to the purposes, of education, should be paid directly to the Treasurer of tho Board of Commissioners of Public Schools of Allegany County.
The “Free School Fund,’’’ was the only fund then applied for the purposes of education in said county. The origin and character of this fund, is well known, and constitutes a distinct source of revenue, applied to the purposes of education in certain ratios among all the counties in the State. Donations to academies are. a distinct and separate class of appropriations, to be paid out of any un-expended money in the treasury. The charter and resolutions making these donations, being, in our judgment, unrepealed, and not affected by the Act of 1860, ch. 335, sec. 13, it is unnecessary to enter into the consideration of the question so elaborately argued by the counsel, whether such donations are revocable or not. The appropriations for the benefit of academies, appear to be as large, if not larger, since the passage of the Act of 1860 as before. There can be no- doubt therefore of the right, power and duty of the Comptroller to issue his wan ant as prayed. There is no discretion vested in the Comptroller in this case, as there was in that of Green vs. Purnell, 12 Md. Rep., 333. In that case this Court held there was no appropriation for the benefit of the relators, but for a specific purpose, involving the exercise of the judgment of the Comptroller in adjusting and settling an account, in which case no mandamus would lie.
The defendant in this case, having died and ceased to be in office, a question arises which has not been argued, viz: whether the mandamus should go against his successor. The Court will forbear to pass a final order, that counsel may be heard on this point, if they desire it.
