The Republican. [volume] (Oakland, Md.) 1877-current, 1900-08-16

Opinion.
Chief Judge A. Hunter Boyd and
Associate Judge David w Sloan have
signed an opinion, concurred in by
Associate Judge Edward Stake, set
tling the controversy which arose in
Garrett county over the School board,
which originated in petition for
nandamus filed by Messrs. Hamill,
Bishoff and Friend, appointed school
commissioners by Governor Smith,
against the old board, George w.
Legge and others, elected by the peo-
pie last year. The governors ap-
pointees are found to be the legal
board, the full text of the opinion in
the case being as follows:
Having reached the conclusion that Sec
tion of Chapter 445 of the laws of 1896 is re-
oealed by Chapter % of the Laws of 1900, and
that Messrs. Hami1l, Bishofr and Friend con-
stitute the legal board of county school com
missioners of Garrett county, we deem it
JTOptT W OuI COhSiuoAOh hiiO"h' "a
though for the reason hereafter stated we
will not order the mandamus to issue.
''When the present Code QSSS) was adopt
ed, Section of Article n of the Code of Pub
lie General Laws provided for the appoint
Inent of the school commissioners for the
counties by the judges of the Circuit Courts
IA different system existing for Baltimore
City, but at the end of that Section it pro-
vided that for five counties, including Gar
rett. the Governor should appoint them-it
having been so provided for Garrett county
by the Act of 1888, Chapter IS. Section 2lO OF
Article 12 Of the Local Code also provided
for the appointment by the Governor for
Garrett county and hence there was no con-
fict in that respect. Chapter 34l of the
Lows OF 1892 repealed and re-enacted Sec
tions 6, is and 25 Of Article II, and by Section
6 5provided for the appointment by the Gov
ernor for each county-six in four counties
named and three in each of the other coun-
ties.
1.-THE Act of 1898, Chapter 445, under which
the defendants claim, is entitled An Act to
repeal and re-enact with amendments, sc
far as relates to Garrett county, Sections
IS and 25 of Article n of the Code Of Public
General Laws, as said Sections were repeal
ed and enacted by Chapter 34l Of the Acts
of 1892 1t provides how they shall read, sc
far as Garrett county is concerned. 1t does
not pretend to enact public local law anG
it could not properly be included in the Code
Of Public Local Laws. When a Section of al
Article of the Code is repealed and re-enact
ed the new one takes the place of the former
one. The only possible way that the Act o.
mi bn trix iC n attach if tO Sec
tion 6 of the Code Of General Laws, as amend
ed in 1892. If a new Code had been made a
the end of the session of 1898, Section 6, a
adopted by the Act of 1882, would have beel
stated and then added to it would have beer
Section of the Act OF 1893. That was th
method adopted by the codiaer OF the Cod
of 1888. In short. it was still one section ant
cannot properly be treated in any other wa
and give effect to the intent OF the Constitu
tional provision for the amendments of Ar
ticles and Sections OF the Code. We do no
deem it necessary to discuss the constitu
tionality OF the Act OF 1898. but we canno
see how it can be given effect unless tn
above construction be placed on it. Their
certainly cannot be two Sections of Articl
n of the Code of Public General Laws. When
therefore, the Act of 1900 repealed and re
enacted Section the whole of that section
including that part applicable to Garret
county, was repealed.
But in addition to that. the Act of 100
provides that The Governor shal
appoint a board of school commissioners TO
each county in the State to be composed il
the counties of Baltimore, Carroll. FredeI
ick, Dorchester and Washington of six per
sons, and in each of the other counties Q
three persons etc. 1t is impossible for tn
Governor to appoint school commissioner
for each county in the State if the Act c
1893 is still in force. Garrett is certainly
county in the State and no exception wa
made in its favor. The Legislature by tn
Act OF 1900, undertook to legislate on tn
whole subject of appointment of schoC
commissioners in the counties. 1t require
minority representation in the school board
and authorizes removal by the Governor fc
incompetency, neglect of duty or miscor
duct after notice to the incumbent and a
opportunity to be heard. So whether tn
legislation be deemed wise or unwise
seems to us it was the intention of the Legi
lature to make it general law applicab
to the whole State, outside of Baltimore cit
1--WE have already said it was not adopte
as public local law but If it had been I'll
provision of the Code that when the publ
generallaw and the public local law of al
county, city, town or district are in contiic
the public local law shall prevail does NJ
apply. 1t was said in State VS.. Falkenhar
70 Nd, 467, that ''That rule was never inten'
ed and has never been held by this Court
remove local laws from the effect and ope
alton of the ordinary rules of constructio
derived from the common law when apple
to subsequent legislation. If the intentiC
of the Legislature in the passage OF the la
ter law by it's language clearly indicat
either expressly or by necessary impllcatiC
purpose to substitute a new scheme
laws for the preceding law, general and loct
or to repeal the local by the adoption Of
new general law, clearly intended to opera
equally throughout the State, the local la
must yield to that intention thus asce
tained.'
''There are many cases in this state on Il
subject OF repeal by implication. In Willil
VS.. Bozman, SO Nd. A, the local law of Vic
mico county on the subject of oysters al
dredges was held to have been repealed
the general law passed in 1874 on the sal
subject. In Alexander VS.. Mayor, etc.
Baltimore, 53 Md. 100 the local law for AL
gany county was held to be repeated by t
Act Of 1856, Chap. 157 providing for the &c
eral valuation and assessment Of proper