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Hornbeck v. Somerset County Board of Education

Decided: April 5, 1983.

DAVID W. HORNBECK ET AL.
v.
SOMERSET COUNTY BOARD OF EDUCATION ET AL.



Appeal from the Circuit Court of Baltimore City; Ross, David, J., pursuant to certiorari to the Court of Special Appeals.

Murphy, C. J., and Smith, Cole, Davidson and Couch, JJ., and*fn* J. Dudley Digges and Charles E. Orth, Jr., Associate Judges of the Court of Appeals retired, specially assigned. Murphy, C. J., delivered the opinion of the Court. Cole, J., dissents and filed a dissenting opinion at page 659 infra.

Murphy

This case involves a challenge to the constitutionality of Maryland statutes which govern the system of financing public elementary and secondary schools in the State's twenty-four school districts, i.e., in the twenty-three counties of Maryland and in Baltimore City. The litigation focuses upon the existence of wide disparities in taxable wealth among the various school districts, and the effect of those differences upon the fiscal capacity of the poorer districts to provide their students with educational offerings and resources comparable to those of the more affluent school districts.

I

Maryland's public school system is administered pursuant to the provisions of the Education Article of the Maryland Code (1978). The State Board of Education, as head of the State Department of Education, is entrusted with the general care and supervision of the public elementary and secondary schools of the State; it is empowered to determine and carry out the State's public school policies and to adopt bylaws, rules and regulations for the administration of the system. Subject to the general authority of the State Board, the State Superintendent of Schools is responsible for the administration of the Department. A county Board of Education in each county and a Board of School Commissioners in Baltimore City, together with their local school superintendents, are vested with control over educational matters in their respective school districts. Subject to applicable bylaws, rules and regulations of the State Board, the local authorities are empowered to determine the educational policies within their own school districts.

The State's public school system is primarily financed by a combination of State and local tax revenues.*fn1 Section 5-201 of the Education Article provides (with certain exceptions) that all State funds appropriated by the General Assembly to aid in support of the public schools shall be included within the General State School Fund. Section 5-201 (c) directs payment of monies from the State School Fund for a number of specified public school expenses, including in subparagraph (12), the State share of "basic current expenses," a term defined in § 5-202 (a) (3) to mean (with designated exceptions) "the expenditures made by a county from State and county revenue for public elementary and secondary education." Section 5-202 (b) (1) provides that each school district shall receive from the State an amount for each school year representing the "State share of basic current expenses." Section 5-202 (b) (2) provides that the annual expenditure for "basic current expenses" in which the State will share is $690 (the statutorily prescribed "foundation" amount at the time suit was filed in this case) multiplied by the number of students enrolled. Section 5-202 (b) (3) specifies that to be eligible to receive the State share of basic current expenses, the subdivision's governing body "shall levy an annual tax sufficient to provide an amount of revenue for elementary and secondary public education purposes equal to the product of the wealth of the county and a uniform percentage determined for each fiscal year." (Emphasis added.)*fn2 Section 5-202 (b) (4) provides that the State share of basic current expenses for each school district "is the difference between the county share calculated under paragraph (3) of this subsection and the basic current expense to be shared [$690], as indicated in paragraph (2) of this subsection." Section 5-202 (a) (7) defines a subdivision's "wealth" to mean the sum of the assessed valuation of real property, public utility operating property, and net taxable income.

The present financing formula for "basic current expenses," as provided in § 5-202 (b), is popularly known as the Lee-Maurer formula, after its originators, then Lieutenant Governor Blair Lee and Delegate Lucille Maurer. The formula is intended to "equalize" for differences in local wealth by providing a larger amount of basic current expense aid to school districts with lesser wealth per pupil than to those with greater wealth. In operation, the formula works as follows: It sets a per pupil statutory "foundation" level ($690) which is the minimal base amount that each school district must spend annually per pupil. Of this amount the State pays 55 percent of the first $624 and 50 percent of the remaining $66. The local districts as a group pay the remaining 45 percent of $624, and 50 percent of $66. The actual distribution of the State share among local districts and the percentage of the foundation amount that each must provide from local tax revenues varies in accordance with the district's "wealth" as defined by § 5-202 (a) (7). The amount that each local district contributes is computed as follows: The total number of public school students enrolled in the State is multiplied by $624, and the product of that calculation by 0.45, yielding the first-tier share for all school districts. The total number of students is then multiplied by $66, and that product is multiplied by 0.50, yielding the local districts' second-tier share. The sum of the two -- the total contribution of all 24 districts -- is then divided by the total wealth of all 24 districts. The resulting percentage is a "uniform tax rate" to be applied by each district to raise its share of the $690 per pupil expenditure. The tax rate applied to each district's wealth per pupil yields the amount per pupil it must contribute toward the basic current expense of $690; the State pays the balance. Thus, the greater a district's wealth the more the uniform tax rate will raise, and the smaller the State's per pupil contribution; conversely,

the less its wealth, the less the uniform rate will yield, and the larger the State's contribution. Each district's share is only the minimum mandated by the State, and each expends considerably more per pupil than the foundation amount. These additional expenditures by the local districts may be made without limitation as to amount without affecting the level of State aid received under the formula.

In addition to the State share of basic current expenses under § 5-202 (b), the State provides an amount equivalent to $100 per student to a school district having a population density of over 8,000 persons per square mile ("density aid"), a criterion met only by Baltimore City. Two-thirds of this amount must be used for certain programs for students with special educational needs that have resulted from educationally or environmentally disadvantaged environments. § 5-202 (c). This subsection also authorizes a State expenditure of $45 per student to qualifying school districts for the same purpose where eligibility for funds is established under Title I of the Elementary and Secondary Education Act of 1965. Other State aid is specially "targeted" to the twelve poorest school districts in the State for use in operating their local systems.

In addition to these appropriations from the State School Fund, the State provides substantially full funding for "categorical aid" to school districts (without adjustment for subdivision wealth) for various educational purposes, including payments for teachers' retirement and social security, educating handicapped children, vocational education and rehabilitation, student transportation costs, school construction costs, and other programs. § 5-201 (c) et seq.

The State share of basic current expenses in fiscal year 1980 amounted to $331,880,120, or 54 percent of the total; the local school districts appropriated $283,281,866, or 46 percent of the total basic current expenses for the 1980 fiscal year. State "categorical aid" to the school districts in the 1980 fiscal year amounted to $480,000,000 and density, compensatory and targeted aid amounted to $26,000,000.

In addition to these educational expenditures, each local subdivision spends substantial sums of money for the support of its local schools. Because of differences in assessed property valuations among the subdivisions, the amounts raised through local taxation and spent per pupil vary from district to district, depending upon the district's tax wealth and/or inclination to spend money to enhance the educational resources and opportunities available to its students. These discretionary local expenditures result in substantial spending imbalances between the districts -- imbalances which are only partially offset by the State's equalization and other aid. Educational offerings in some school districts are therefore considerably greater than in others. That Maryland's system of financing its public schools is dependent in considerable part upon tax revenues raised by the local subdivisions and expended for the support of their local public school systems is thus entirely clear.

II

On February 15, 1979, the Boards of Education of Somerset, Caroline and St. Mary's Counties, and the School Commissioners of Baltimore City, together with taxpayers, students, parents, public officials and the school superintendents in each subdivision (collectively the plaintiffs), filed a declaratory judgment action in the Circuit Court of Baltimore City. Characterizing their respective school districts as fiscally distressed, the plaintiffs claimed that the State's public school financing system violated (a) the Equal Protection Clause of the Fourteenth Amendment, (b) the equal protection guarantee of Article 24 of the Maryland Declaration of Rights, and (c) § 1 of Article VIII of the Maryland Constitution, which commands the General Assembly to "establish throughout the State a thorough and efficient System of Free Public Schools; and [to] provide by taxation, or otherwise, for their maintenance."*fn3 Named as

defendants in the action were the Comptroller of the Treasury, the State Superintendent of Schools, and, by intervention, Montgomery County, Maryland.

The complaint alleged that because of the insufficiency of school funds caused by the State's discriminatory, unequal and inadequate school financing system, the plaintiff school boards were unable to meet their constitutional obligations under state and federal equal protection guarantees or under the "thorough and efficient" clause of § 1 of Article VIII of the Maryland Constitution. In four separate causes of action, the plaintiffs alleged that the State's public school financing system unconstitutionally discriminates against and disadvantages all students in the State's fiscally distressed school districts by providing them lesser and inadequate educational opportunity; that the system unconstitutionally operates to the particular disadvantage of poor children attending public schools in the fiscally distressed school districts; that Maryland unconstitutionally discriminates against poor school children throughout the State by systematically denying equal educational opportunity to most of them; and that the State's public school financing system unconstitutionally discriminates against residents and taxpayers of Baltimore City by compelling them to impose unparalleled tax rates while still offering only a reduced level of education, a duality which promotes continuing "out-flight" of the City's tax base and threatens the City's fiscal vitality.

In support of their action, the plaintiffs asserted in their complaint that Maryland's school districts vary widely in their taxable wealth and in their fiscal ability to support public education; that under the State's system of financing its public schools, the local school districts are required to raise from local tax revenues approximately two-thirds of the current expenses needed to operate their school systems; that wealth disparities between the school districts are such that the plaintiff districts are unable to raise revenues comparable to those of the wealthier districts because, at any given tax rate, the revenue yielded per child is substantially less than that yielded in the more affluent school districts; that this is so even if the poorer subdivisions tax at rates higher than those of the wealthier districts; that an aggravating cause of the reduced school funding capacity of Baltimore City results from its "municipal overburden" -- a factor endemic to large cities having extreme population densities, great poverty and high crime rates, which necessitates expenditures of local revenues greater in amount than any other Maryland school district for non-school governmental services, such as police and fire protection; that the necessity for these greater expenditures for nonschool needs sharply limits the proportion of every locally raised revenue dollar which remains available for public schools; and that the Lee-Maurer equalization formula does not take Baltimore City's municipal overburden into account but instead erroneously assumes that local tax revenues are equally available for public schools in each school district. The complaint alleged that even though the Lee-Maurer formula undertakes to equalize for differences in local wealth by providing a larger amount of basic current expense aid to school districts with lesser wealth per pupil, the equalization occurs only up to the foundation level of $690 per pupil, which is less than one-half the State-local revenue per child of the average school district in the State; that because of their lower revenue and spending capacity educational offerings in the fiscally distressed school districts, e.g., quality and quantity of professional staff, class sizes, school facilities, equipment and supplies, are considerably

less than those offered by school districts which are not fiscally distressed; that as a result of the fiscal incapacity of the plaintiff school districts, their students suffer from a diminished level of educational resources; that the State's public school financing system's heavy dependence on disparate local taxable wealth results in substantial differences in educational offerings and resources among the school districts.

The complaint also asserted that poor children in the plaintiff school districts require extra educational assistance to overcome learning disadvantages but receive less as a result of the State's discriminatory public school financing system; that families in poor school districts more often suffer low income, low educational attainment and higher unemployment than in the wealthier districts; that as a result children in poor school districts have learning deficiencies that can only be overcome by costly programs of compensatory education; that conditions associated with poverty impede learning progress; that the Lee-Maurer equalization formula fails to take into account that it costs substantially more to provide learning opportunities for poorer children; that these needs are not accommodated under the State's system of financing its public schools; that instead the system yields reduced and below average educational resources to the economically and educationally disadvantaged public school students; that the plaintiff school districts suffer from "educational overburden" in their higher concentration of poor children with special and greater educational needs; that 70 percent of the State's poorest children reside in fiscally distressed school districts with below average taxable wealth, with the result that these children are systematically relegated to below average wealth schools with reduced, unequal and inadequate educational offerings; and that although Baltimore City levies taxes at a rate higher than any other subdivision in Maryland, it provides below average public school funding to its students.

Plaintiffs sought a declaration of the finance system's unconstitutionality, together with injunctive relief if the General Assembly failed to enact a school finance system that comported with constitutional precepts.

The trial before Judge David Ross consumed over four months and produced a voluminous record, numbering many thousands of pages. Believing that the decisive issue in the case rested upon virtually undisputed facts, Judge Ross limited his formal findings of fact essentially to the following: He first found from the evidence that substantial disparities existed in tax wealth among the school districts. Judge Ross set forth a few comparisons to show the extent of the problem:

"While Calvert County had $138,318 of property wealth behind each pupil enrolled on September 30, 1979, St. Mary's County, Somerset County, Baltimore City and Caroline County had respectively only $34,939, $32,151, $28,375 and $27,762. The ratio of disparity between Calvert County and Caroline County was 5 to 1. In 1978, Montgomery County had a net per capita income of $7,059, while Somerset County had $2,408. Thus, the maximum fifty percent 'piggyback' income tax the subdivisions are permitted to impose raises in Somerset County only about one-third of the per capita amount it raises in Montgomery County. When wealth is measured by a combination of property and income per pupil enrolled on September 30, 1979 as defined by the Lee-Maurer formula, Worcester County had $129,850 per pupil while Somerset County, its contiguous neighbor, had only $39,107 per pupil, a disparity ratio of more than 3 to 1. If taxable wealth is defined as total property taxable for county purposes plus net taxable income, the disparity between Calvert County with $127,556 per pupil and Caroline County with $39,229 is also more than 3 to 1."

Judge Ross found from the evidence that the plaintiff subdivisions were able to raise far less in revenues per pupil than the affluent school districts; that if each subdivision were to tax its property at a rate of $2 per $100 of assessed valuation, Calvert County would raise $2,766 per pupil enrolled on September 30, 1979 while its contiguous neighbor St. Mary's County would raise only $699 per pupil; that Worcester County would raise $2,397 per pupil while its neighbor Somerset County would raise only $643 per pupil; and that Baltimore City and Caroline County would raise only $568 and $555 per pupil, respectively.

Judge Ross found as a fact that although the Lee-Maurer "basic current expenses" formula creates a perfect inverse relationship between wealth per pupil and State aid per pupil, State aid under the formula was insufficient to overcome the substantial disparities in local tax wealth. He explained:

"First, the current expense expenditure level specified in the Lee-Maurer formula is less than half the actual State average level of current expense. For example, in the 1978-79 school year, the average current local and State expense per student was $1,979, while the formula amount was $690. The formula amount was approximately one-fourth of the amount spent per pupil for current expenses in Montgomery County that year. Secondly, the use of categorical aid undercuts the equalization which the Lee-Maurer formula achieves. Although Somerset County received more than six times the basic current expense aid that its neighbor Worcester County received in fiscal year 1981, the former got a total of $595 in categorical aid and the latter $524. The disequalizing effect of categorical aid is obvious. The resulting total State aid to Somerset County was only twice that given to Worcester County despite an equalization effort under the Lee-Maurer formula of more than 6 to 1."

In finding from the evidence that spending disparities among the school districts were substantial and closely related to the disparities in subdivision wealth, Judge Ross, by way of example, indicated that in fiscal year 1979 Montgomery County spent $2,328 per pupil while Caroline County spent only $1,498 per pupil. Judge Ross set forth other examples of spending disparities among the school districts, from which he concluded that "a child in the wealthiest subdivision has approximately twice the amount spent on his education as a child in the poorest subdivision."

The trial judge further found from the evidence that the majority of indigent pupils in Maryland are clustered in the poorest subdivisions. He observed:

"The plight of plaintiffs' subdivisions is exacerbated by the fact that they have large numbers and concentrations of poor children who have special educational needs. For example, only 6% of Montgomery County students are eligible for federal Title I funds compared to 42%, 39%, 28% and 21% in Baltimore City, Somerset County, Caroline County and St. Mary's County, respectively."

Finally, as to Baltimore City, Judge Ross said:

"In addition, Baltimore City has less local revenue available for school funding than do the other subdivisions, because it must devote a greater portion of its tax base and its locally raised revenues to nonschool services. For example, in fiscal year 1979 although the two subdivisions raised approximately the same total local revenues per capita, Baltimore City spent $357 per capita for non-education expenditures, while its neighbor Baltimore County spent only $235 per capita. For Baltimore County this represented 47% of its total per capita revenues and left $1,549 to be spent per pupil for education. In contrast, Baltimore City spent 69.5% of its total per capita revenues for

non-education expenditures, which left only $789 per pupil for education. The State average for non-educational expenditures is 50% of total local revenue. Although the effective property tax rate in the City is almost twice that of the County (11.89 and 6.02 respectively), the County has almost twice as much in revenues available per pupil for educational expenditures after funding non-educational services."

Judge Ross held that the State's scheme of financing its public school system violated Article VIII of the Maryland Constitution and Article 24 of the Maryland Declaration of Rights but that it did not offend the Equal Protection Clause of the Fourteenth Amendment. The trial judge first observed that the Supreme Court in San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973), had considered whether the Texas school financing system, which was similar to the Maryland system, violated the federal equal protection guarantee. The Court in that case, as Judge Ross found, held that the plaintiffs had failed to establish financial need as a suspect class and that because education was not explicitly or implicitly guaranteed by the federal constitution, it was not a fundamental right, i.e., it was not a right which requires application of a strict scrutiny analysis for purposes of determining whether there had been a denial of the federal equal protection guarantee. In holding that the Texas system did not violate the federal equal protection clause, the Court applied the rational basis standard of equal protection analysis; it concluded that the system furthered the legitimate state purpose of preserving local control. Judge Ross found no basis for distinguishing Rodriguez from the present case. He held, however, that Rodriguez did not resolve the plaintiffs' state equal protection claim since in Attorney General v. Waldron, 289 Md. 683, 426 A.2d 929 (1981), this Court held that the equal protection guarantees of the federal constitution and of Article 24 of the Maryland Declaration of Rights were independent of each other and capable of divergent effect.

Judge Ross held that the State's public school financing system did not comply with § 1 of Article VIII of the Maryland Constitution which requires that the General Assembly, by law, establish throughout the State a "thorough and efficient" system of free public schools and provide by taxation, or otherwise, for their maintenance. After extensively reviewing the history underlying the establishment and financing of Maryland's public school system, Judge Ross concluded that the "thorough and efficient" language of Article VIII was straightforward and unambiguous; that it required a system which by contemporary standards was "full, complete and effective in every part of the State and not just in those subdivisions which for whatever reason happen to have the revenue wealth to provide such." The court said that the words "thorough and efficient" denote "a level of quality and that standard must be established and maintained in every subdivision"; that the General Assembly must provide the funds to achieve this end; that more was required than "a bare framework for delivering a minimum basic education." Judge Ross opined that the public school system could not at the same time be thorough and efficient throughout the State when substantial disparities in spending existed between school districts, particularly when the only explanation for the disparities was the availability of funds. He said:

"If it takes $2,328 per pupil to provide full and complete schools in one county, it would seem that it would cost substantially the same to do so in the others. On the other hand, if $1,498 per pupil provides full and complete schools in one subdivision it can hardly be said that a system which permits expenditure of $2,328 and comparable amounts in other subdivisions is efficient. This is certainly true if one attributes to 'efficient' the concept of using the least wasteful means which is clearly a part of the current meaning of that word. It would seem that the system is either not full and complete in

the low spending subdivision or it is wasteful in the high spending one."

For reasons extensively outlined in his opinion, Judge Ross next concluded that even if the language of Article VIII was ambiguous and required construction, its history and contemporaneous construction dictated the same interpretation, i.e., that a statewide free public school system be established which is full, complete and effective by contemporary standards throughout the State.

In summary, Judge Ross found from the evidence:

"that the present financing scheme significantly underfunds the plaintiffs' schools whose requirements are at least as great as any in the State, while it permits virtually unlimited spending in other subdivisions. As a result the quality of the schools in the plaintiffs' subdivisions is inferior to those in the wealthier subdivisions with respect to buildings, equipment, materials and staff."

Consequently, the court found that because the existing system failed to set a qualitative standard of education and to provide equal funding across the State, it was not "thorough and efficient" within the meaning of § 1 of Article VIII of the Maryland Constitution.

Judge Ross next considered whether Maryland's statutory scheme of financing its public school system violated the equal protection guarantee of Article 24 of the Maryland Declaration of Rights.*fn4 He determined that § 1 of Article VIII of the Maryland Constitution, unlike the federal constitution, explicitly guarantees the right of students and their

parents to have the State establish and fund a thorough and efficient statewide system of free public schools; that because the right is constitutionally guaranteed, it is fundamental; that any system which discriminates invidiously with respect to furnishing a thorough and efficient system of free public schools necessarily impinges upon and interferes with that fundamental right and, for purposes of equal protection analysis, must be adjudged by the most rigorous standard, i.e., strict scrutiny, which requires the proponents of the statute to demonstrate that the unequal treatment is necessitated by a compelling governmental interest. Judge Ross held that Maryland's system of financing its public schools provides unequal funding and unequal distribution of State revenues. He then noted that the specific complaint of the plaintiff school districts was not that the State has failed to offer each pupil the probably unachievable ideal of equal educational opportunity, but rather "that in establishing and maintaining the system of public schools mandated by Article VIII the State has done so unequally." The only question, he said, is whether unequal funding is constitutionally permissible. He explained:

"The question is not whether the State is obliged to equalize the educational opportunities of all its children, but whether the State in establishing a statewide system in response to the constitutional mandate can do so unequally."

Judge Ross noted that "tax resource wealth" is public and is within the entire control of the General Assembly "in trust for all citizens of the State." He believed that all such revenue sources must be considered in determining how much money will be allocated to the public school system, stating that "[t]he State's revenues can be collected and spent locally only by express grant of power from the General Assembly."

Judge Ross said that because of naturally occurring disparities in wealth, local taxation and expenditure will frequently result in unequal distribution of the State's

assets. But, he said, "when the Constitution itself mandates establishment and maintenance of a statewide system, unequal distribution of the State's revenues can be justified only for the most compelling reason and as all agree there is none with respect to school finance." In summary, Judge Ross reiterated that "Article VIII requires the school system to be full and complete by contemporary standards throughout the State"; that Article 24 "requires equality for each pupil in the State"; that the "key determinant in achieving these mandated goals is funding"; and that

"[t]he only practical and realistic way of determining and achieving equality is with respect to the division of the funds committed to education. Each pupil is entitled to a fair share of the funds available for education. This can be accomplished only by dividing the money equally on an accurate per pupil basis across the State."

Judge Ross recognized that the total amount to be spent on education is limited by the finiteness of revenues and the competing demands on those revenues. It is for the General Assembly, he repeated, which has control over all revenue sources within the State, to consider all such sources "in determining how much will be allocated to public schools." Judge Ross cautioned:

"The General Assembly may not limit its ability to adequately fund education by permitting the subdivisions to have or retain excessive revenue collecting power nor may it permit unequal distribution of any revenues for public schools."

The trial judge held that Article 24 "requires mathematical equality among pupils with respect to distribution of funds," with some variations from exact dollar per pupil equality being permitted if "tailored with mathematical precision to a clearly demonstrated difference in cost."

Judge Ross deemed it unnecessary to determine whether the Lee-Maurer formula was unconstitutional for failure to

take Baltimore City's "municipal overburden" into account since he held "the entire system . . . unconstitutional quite apart from that possible shortcoming in the Lee-Maurer formula." He nevertheless concluded that for purposes of meeting constitutional requirements with respect to funding education, "it is irrelevant who pays the taxes" since the State Constitution requires "adequate and equal funding for each pupil in the State"; and "[a] plan which relies on illusory revenue sources and as a result fails to adequately fund will not satisfy the requirements of equal protection."

All parties appealed from the trial court's decree. We granted certiorari prior to decision by the Court of Special Appeals to pass upon the issues of public importance raised in the case.

III

We first consider the meaning of § 1 of Article VIII of the Maryland Constitution which requires that the General Assembly establish "a thorough and efficient" system of free public schools throughout the State and "provide by taxation, or otherwise, for their maintenance." Of course, if the provisions of this section are clear and unambiguous, as the trial judge held, no construction or clarification is needed or permitted. See Brown v. Brown, 287 Md. 273, 412 A.2d 396 (1980); Johns Hopkins Univ. v. Williams, 199 Md. 382, 86 A.2d 892 (1952). Contrary to the position taken by Judge Ross, however, the provisions of § 1 do not, in our view, clearly and unambiguously compel the enactment of a statute mandating exact equality in per pupil funding and expenditures among the State's school districts as the constitutionally required means of establishing and maintaining a "thorough and efficient" statewide system of free public schools. The meaning of § 1 is by no means free from doubt; the language of that section, on its face, is plainly susceptible of more than one meaning. Accordingly, to ascertain and effectuate the intent of the framers of the organic law and the people adopting it, it is essential that we consider

the history underlying the enactment of § 1 and its contemporaneous construction by officials charged with administration of the government, including the legislature. See Kadan v. Bd. of Sup. of Elections, 273 Md. 406, 329 A.2d 702 (1974); Johns Hopkins Univ. v. Williams, supra; Johnson v. Duke, 180 Md. 434, 24 A.2d 304 (1942). In this regard, it has been held that a contemporaneous construction placed upon a particular provision of the Maryland Constitution by the legislature, acquiesced in and acted upon without ever having been questioned, followed continuously and uniformly from a very early period, furnishes a strong presumption that the intention is rightly interpreted. See Wyatt v. State Roads Commission, 175 Md. 258, 1 A.2d 619 (1938); Humphreys v. Walls, 169 Md. 292, 181 A. 735 (1935); Trustees of the Catholic Cathedral Church of Baltimore v. Manning, 72 Md. 116, 19 A. 599 (1890). And, in considering contemporaneous exposition in construing the meaning of a constitutional provision, Maryland courts have always afforded great weight to debates and proceedings held in the course of constitutional conventions. See State v. Canova, 278 Md. 483, 365 A.2d 988 (1976); Johns Hopkins Univ. v. Williams, supra; McMullen v. Shepherd, 133 Md. 157, 104 A. 424 (1918); Baltimore v. State, 15 Md. 376 (1860). Of particular importance in this connection are the proceedings of the 1867 Constitutional Convention, as reported in P. Perlman, Debates of the Maryland Constitutional Convention of 1867 (1923). See Kadan, supra, 273 Md. at 412.*fn5

(A)

Although the Maryland Constitution of 1776 did not contain any provision relating to public school education, the General Assembly manifested its concern for educational matters in the early days of statehood. See Page 621} McCarthy v. Bd. of Education of A. A. Co., 280 Md. 634, 374 A.2d 1135 (1977). Chapter 122 of the Acts of 1813 created a fund to establish a general system of free schools throughout the State; the proceeds of the school fund were to be divided equally among the counties. Chapter 256 of the Acts of 1816 directed the appointment of commissioners in each county to superintend the expenditure of the county's proportion of the State school fund. Chapter 162 of the Acts of 1825 undertook to establish a statewide system of free primary schools, under the supervision of a State Superintendent of Public Instruction. The counties were divided into school districts managed by district trustees. School construction was to be funded by local property taxes. State school fund revenues were to be apportioned in part on an equal basis among the school districts and partly on a school-age population basis. See Resolution 47, enacted by the General Assembly at its 1833 session. The 1825 Act permitted Baltimore City to establish its own separate school system, and it authorized any county, by vote of its electorate, to decline to establish any public school system.

Prior to 1864, the legislature's efforts to establish a statewide public school system were ineffective. Under the 1825 Act, Baltimore City maintained its own system and a number of counties voted not to establish public schools. Numerous public local laws were enacted by the General Assembly pertaining to public school education in various of the school districts. See, e.g., Acts of 1827, ch. 173; Acts of 1830, chs. 14 and 160; Acts of 1837, chs. 306 and 353; Acts of 1847, ch. 279. The development of public schools was a matter left largely to the counties and to Baltimore City. See L. Blauch, Education and the Maryland Constitutional Convention of 1864, 25 Md. Hist. Mag. 169 (1930). An effort to include a provision in the Maryland Constitution of 1851 for a "uniform system of common school education" did not succeed. See 2 Maryland Constitutional Convention Debates 339 (1851). A bill to accomplish the same result was introduced in the 1853 session of the General Assembly but was not enacted.

It was not until adoption of the Maryland Constitution of 1864 that a statewide system of free public schools was established in this State. Article VIII, § 1 of that document required the Governor to appoint a State Superintendent of Public Instruction with responsibility to develop "a uniform system of free public schools." Section 2 of the article required the creation of a State Board of Education. Section 3 directed the appointment of school commissioners in each county in such numbers as the State Superintendent determined, the commissioners to be appointed by the State Board and to perform duties as directed by the State Superintendent or by the General Assembly. Section 4 directed the General Assembly to "provide a uniform system of free public schools, by which a school shall be kept open and supported free of expense for tuition in each school-district, for at least six months in each year." Section 5 required the General Assembly to levy an annual tax of not less than ten cents on each one hundred dollars of taxable property throughout the State, for the support of the free public schools, the funds to be distributed among the counties and Baltimore City in proportion to their respective population between the ages of five and twenty years. This section prohibited the General Assembly from levying "any additional school-tax upon particular counties, unless such county express by popular vote its desire for such tax." Section 5 also authorized Baltimore City "to provide for its additional school-tax as at present, or as may hereafter be provided by the General Assembly, or by the mayor and city council of Baltimore." Section 6 directed the General Assembly to provide "a fund for the support of the free public schools of the State, by the imposition of an annual tax of not less than five cents on each one hundred dollars of taxable property throughout the State," the proceeds thereof to be known as "the public-school fund," and invested until the fund amounted to six million dollars, after which the ten cent tax required by § 5 could be discontinued, if the General Assembly so determined. Section 6 further provided that the school fund would remain "forever inviolate as the free public-school fund of the State," the interest therefrom

to be disbursed for educational purposes only, as prescribed by law.

Article VIII of the Constitution of 1864 was fully implemented by ch. 160 of the Acts of 1865, which made comprehensive provision for a uniform system of free public schools throughout the State, including the imposition of a fifteen cent tax on each one hundred dollars of assessable property throughout the State, to be disbursed to the counties and Baltimore City in proportion to population between the ages of five and twenty years. Although the 1864 Constitution did not prohibit school districts from raising additional funds through the imposition of local subdivision taxes to supplement grants from the State school fund, the 1865 statute provided that after January 1, 1867, no county or Baltimore City could impose taxes for the support of the public schools in their respective subdivisions.

The "uniform" public school system established by Article VIII of the Constitution of 1864 was of short-lived duration.*fn6 At the Maryland Constitutional Convention of 1867, a new Education Article was reported to the Convention by its twenty-five member Education Committee; it was adopted by the Convention without amendment and was identical in form and wording with what later became Article VIII of the Maryland Constitution of 1867. See Perlman, Debates, at 148. As proposed, the new Education Article did not contain any provision, as then existed in the 1864 Constitution, for the appointment of designated State education officials, for the mandatory imposition of State property taxes in specified amounts to fund the statewide system, or for the distribution and allocation of such tax revenues among the counties and Baltimore City. Nor did the new article contain a provision, as in the 1864 Constitution, that the statewide

school system be "uniform." The new article required only that the free statewide system be "thorough and efficient," and funded "by taxation, or otherwise." It also directed that the existing "uniform" system would expire at the end of the first year after the adoption of the new constitution, unless the legislature elected to continue it.

Although no official transcript of the debates of the 1867 Convention was made, considerable historical evidence exists respecting the Convention's proceedings. As reported in Perlman, Debates of the Maryland Constitutional Convention of 1867, at 198-203, 243-48, and 251-56, a number of delegates expressed dissatisfaction with the "uniform" public school system created by the 1864 Constitution; they urged its termination. Some delegates assailed the large expense associated with the operation of the uniform system, with its centralized administration, lack of local control, and with the performance of the Superintendent of Public Instruction. Members of the Convention's Education Committee, in explaining the proposed new article to the delegates, said that it did not provide for a uniform system; that the subject "of incorporating into the constitution a detailed system was thoroughly discussed"; that the committee was of the "unanimous conclusion . . . that the constitution should not be encumbered with the details"; and that the "best plan was to leave the details . . . to the legislature." The comments of Delegate Kilbourne, a member of the Education Committee, appear to reflect the sentiment of the Education Committee. As reported in Perlman, Debates, at 200-01, Kilbourne "wanted this matter left to the Legislature." He said that

"He had been for abolishing the present system . . . [and] in no shape or form would he consent that the system should continue one day beyond the time indicated in this article, [June 11, 1867] . . . . The committee had ample evidence of the almost entire voice of the people of Maryland against the system. The reason why he was willing to leave this matter

to the Legislature was because he was thoroughly convinced that no section of the State would send a delegate to the Legislature who would not be in favor of abolishing the present system. The enormous expenses of the system, the mode of raising the money and the mode of expending it, and the power of the superintendent, are all reasons why this system should be dispensed with. . . . The whole system has radical, fundamental objections. It would be supposed that it would be right to commit the expenditure of the funds to those who contributed them, but these funds are placed beyond the control of every parent and guardian in the State; those who bear the burdens are denied all share in their direction."

A number of amendments were nevertheless proposed to the Education Committee's report. One delegate, Page of Somerset County, urged that the uniform system should be continued throughout the State. Perlman, Debates, at 203. Delegate McMaster of Worcester County also favored continuation of the uniform system. Id. at 245-46. Other delegates sought to amend the committee's report to include a constitutional provision authorizing Baltimore City to maintain its own separate school system. Id. at 201-04, 243-51. Another amendment sought to substitute an entire new education article in place of the committee's report; it proposed incorporating detailed provisions into the constitution assuring local control over the public schools. Id. at 253-55. Delegate Barnes urged that "the ends of popular education can best be served by committing the whole question to the control of the several counties, and the city of Baltimore, respectively, to be conducted in each according to the wants and desires of the people." Perlman, Debates, at 252. According to Perlman, Delegate Barry urged adoption of the education article submitted by the committee "as the Legislature would have the power to create a new system, and it would be perfectly competent to give to the city of Baltimore such a system as she now has, or any system

which she may desire in lieu of it. He was in favor of leaving this matter to the Legislature, where it properly belonged." Id. at 251. Delegate Vansant, a member of the Education Committee, advocated adoption of the proposed new education article without change, stating that future details of the system "should be left to the Legislature, which would assemble in January next after the adoption of the constitution." Id. at 255. Similar sentiments were expressed by other delegates, some of whom were on record as favoring county control of the public schools and/or a separate school system for Baltimore City. The central theme emerging from the debates was not to encumber the new education article with details beyond those provisions proposed by the committee, so as to permit the legislature to adopt any system, including a uniform system, and to implement it by statute.

None of the proffered amendments to the proposed new education article were adopted by the Convention and it was passed with only five dissenting votes. Debates, at 439. A resume of the work of the Convention was printed in The Baltimore Sun after the Convention's adjournment. It was there reported that the education article "makes it incumbent on . . . [the legislature], at its first session to provide for a new system, all the details of which, including the rate of taxation, are left to it." Id. at 36.

Perlman's accounts of the proceedings at the 1867 Constitutional Convention are confirmed by articles appearing in The Baltimore American and Commercial Advertiser, the Baltimore Daily Commercial and the Baltimore Gazette. In various articles, these newspapers reported that it was the intention of the Convention delegates in adopting the new education article to leave implementation of the details of the public school system to legislative determination. For example, Delegate McKaig, a member of the Education Committee, was quoted as saying: "[t]he object of the committee was to leave the Legislature entirely untrammelled." Baltimore American, June 21, 1867, at 4. Delegate Page was reported to have unsuccessfully introduced a motion to amend the first section

of the new education article to require "a thorough, efficient and uniform " free public school system. Id., June 12, 1867, at 4 (emphasis supplied). It was reported that efforts to include a constitutional provision guaranteeing local control of the public schools, and for a separate system in Baltimore City, were blunted by the firm position espoused by Education Committee members, most of whom favored local control, that the legislature be left free to adopt the system it deemed best. Id. June 12 and 22, at 4. See also Baltimore Daily Commercial, June 12, 1867, at 4. The Baltimore Gazette, in its issue of June 22, 1867, at 4, quoted Delegate Wickes as saying:

"I am in favor of reserving to the Legislature full authority to provide for a system of education in each county and the city of Baltimore according to the local wants of each section, and opposed to any amendment which should require the Legislature to provide a uniform system. The construction of the Article reported by the committee leaves, in my opinion, no doubt upon this question. The report does not provide for a uniform system, but only for a thorough and efficient system of education, and I entertain no doubt that under the power contained in this section the Legislature has full authority over the subject. There is also, Mr. President, full authority reserved to the Legislature to provide by taxation for the maintenance of public schools. This authority is properly confided to the Legislature, as they will be able to decide the amount of taxes necessary to be levied and to apportion the taxes to the new assessment which has been made or will hereafter be perfected. No system of public schools can be perfected in a constitution. The details of the system cannot be given. It is a question which no man in his closet can satisfactorily arrange, but must depend upon experience and be subject to amendment and alteration when the practical operation of this system demonstrates the necessity for such amendment."

Another member of the Education Committee, Delegate Tarr, told the Convention delegates that they were sent to accomplish two purposes -- "to provide for the termination of the present system" and to make provision "for the establishment of a more economical and satisfactory system than the one now in existence." See Baltimore Gazette, June 22, 1867, at 4. Other articles reported that a number of the members of the Education Committee had objected to the great expense entailed by operation of the uniform system; the question of the amount of the tax levy to support the school system, according to the Chairman of the Education Committee, was also for the legislature to determine. See Baltimore Gazette, June 20, 21 and 22, at 4; Baltimore American, June 12 and 22, at 4.

Following ratification of the Constitution of 1867, the provisions of Article VIII were implemented by ch. 407 of the Acts of 1868, which enacted a new public education article. The statute made provision for a general system of free public schools throughout the State. Educational matters affecting a county were placed under the superintendence of Boards of County School Commissioners. The Act required imposition of a ten-cent statewide property tax to support the free public school system throughout the State, to be distributed to the City and to the counties on a school-age population basis. The statute specified that the State School Fund was to pay the salaries of teachers in the counties, and the expense of school books and stationery; and that if in apportioning the School Fund among the counties and Baltimore City, the share of any county was inadequate, the county could impose a local property tax sufficient to satisfy the deficiency; and that county voters could also impose other and additional taxes for public school purposes.

The 1868 Act authorized Baltimore City to establish its own system of free public schools and to delegate the superintendence thereof to the local Board of School Commissioners. The Act authorized Baltimore City to levy taxes

upon property within the subdivision as was necessary to defray the City's separate educational system.*fn7

The equalizing effect of the even distribution of the proceeds of the State school tax among the school districts on a population basis, as directed by the 1868 statute, was offset by the authority vested in local governments to levy additional property taxes for school purposes and to spend them as each saw fit. As a result, very substantial per pupil spending disparities existed among the State's school districts for the 55 years immediately following adoption of the 1867 Constitution. Due to the great variance in educational resources and opportunities among the school districts, the legislature, by ch. 844 of the Acts of 1914, directed that a study be made of the State's public school system and its financing. The study, done by Abraham Flexner and Frank Bachman, reported that from 1870 through 1914, the local subdivisions raised approximately two-thirds of the total funds expended for public school purposes, with the State providing the remaining third. The authors reported that because the State's wealth was unevenly distributed among its subdivisions, major differences existed between the school districts in per pupil expenditures. They recommended adoption of a financing formula to lessen the impact of wealth-based disparities among the subdivisions whereby the State would provide greater aid to the poorer districts, thereby better equalizing educational opportunities among the State's school children. Specifically, it was recommended that there be a single state school fund; that the State provide free ...


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