the error. If an error was committed, the plaintiff should have availed himself of a direct appeal to this court from the action of the orphans' court in passing the order; but, failing to do so, he cannot resort to a court of equity to correct the wrong complained of. Wannenwetsch v. Mayor and City Council of Baltimore, 111 Md. 32, 73 Atl. 701; Owners' Realty Co. v. Baltimore City, 112 Md. 477, 76 Atl. 575. We think it unnecessary to prolong this opinion with a further discussion of this question. Therefore, from what we have said, the court committed no error in sustaining the demurrer and dismissing the bill in this case. cancies should be filled by the county board. Code Pub. Gen. Laws 1904, art. 77, relating ing Acts 1896, c. 275, 88 16-18, provided by to public education, and not expressly repealsection 7 that the board of district school trustees should be composed of three persons appointed by the county board, and that their confirmed by the board and by section 27, appointment of a principal teacher should be that the trustees were to employ teachers subject to the confirmation by the board. Heid, that Code Pub. Gen. Laws 1904, art. 77, § 7, and Acts 1896, c. 275, §§ 16-18, which related being part of a general law relating to schools, only to schools opened under that act, were not inconsistent or irreconcilable; and hence that the Act of 1896 was not repealed by implication. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 92; Dec. Dig. § Order affirmed, with costs to the appellee. 46.*] (117 Md. 97) BOARD OF SCHOOL COM'RS OF ANNE 1. MANDAMUS (§ 76*)—GOVERNMENT AND OF- The circuit court had jurisdiction of mandamus proceeding to compel the board of school commissioners of a county to appoint six trustees for a public school in the county, where the plaintiff contended that all the vacancies should be filled under and by virtue of Acts 1896, c. 275, §§ 16-18, providing for the erection and maintenance of a school in that county with a board of six trustees, and where defendant contended that such act had been repealed by Code Pub. Gen. Laws 1904, art. 77, § 11 (Acts 1904, c. 584, § 11), which provided that the State Board of Education should carry the provisions of this article into effect, and decide all controversies arising under it. their decision to be final, since the real issue did not involve the proper administration of the public school system, but a purely legal question as to the repeal of a statute. Appeal from Circuit Court, Anne Arundel County; Jas. R. Brashears, Judge. Mandamus by Louis B. Henkel and others against the Board of School Commissioners, of Anne Arundel County. Mandamus directed to issue, and defendant appeals. Cause remanded without affirming or reversing the order appealed from, that order might be passed in conformity with opinion. Argued before BOYD, C. J., and BRISCOE, PEARCE, BURKE, PATTISON, URNER, and STOCKBRIDGE, JJ. Clayton Purnell, for appellant. Robert Moss, for appellees. PATTISON, J. The appellees, citizens and taxpayers of Anne Arundel county, Md., filed their petition in the circuit court for that County asking that a writ of mandamus be issued, directed to the board of county school commissioners of Anne Arundel county, commanding them to appoint, pursuant to chapter 275 of the Acts of the General Assembly of Maryland, passed at its January session, 1896, and in accordance with the provisions thereof, six district trustees for the White public school in the city of Annapolis mentioned in the petition. The petition alleged that each of the six trustees of said school had resigned, and that a vacancy existed in each of said offices. The petition further alleges that the board of county school commissioners, ignoring the provisions of chap[Ed. Note.-For other cases, see Statutes, ter 275 of the Acts of 1896, appointed as Cent. Dig. §§ 229, 231; Dec. Dig. § 159.*] trustees for said school three men, "under 3. SCHOOLS AND SCHOOL DISTRICTS (§ 46*)-the pretense that said act of assembly is no GOVERNMENT AND OFFICERS STATUTORY longer in force, and that the same has been PROVISIONS-REPEAL. repealed." The school commissioners in their answer to the petition denied the ex [Ed. Note. For other cases, see Mandamus, Cent. Dig. 88 158-160; Dec. Dig. § 76.*] 2. STATUTES (§ 159*)-REPEAL-IMPLIED REPEAL BY INCONSISTENT OR REPUGNANT ACT. Repeal of a statute by mere implication is never favored by the courts, and it is only where the two acts are clearly irreconcilable, and not susceptible of standing together under any fair and reasonable construction, that such repeal will be declared. Acts 1896, c. 275, providing for the erection and maintenance of a school in a county and city, declared by section 16 that the dis-istence of the vacancies in the board, as altrict school trustees for the school should be leged in the petition, and alleged "that said composed of six persons to perform the duties board is composed of three persons, resiassigned them by Code Pub. Gen. Laws 1904, dents of the school district, as provided in art. 77, $$ 30-35, relating to duties of district school trustees, and that they should have the section 7 of article 77 of the Code of Public rights and powers conferred thereby upon dis- General Laws, title 'Public Education.'" The trict school trustees, and have the absolute answer further alleges "that sections 16, 17, power to appoint and remove teachers in such and 18 of chapter 275 of the Acts of 1896 are school without the approval of the county school commissioners. Section 17 classified inoperative and no longer in force, in that the trustees, and section 18 provided that va- the provisions thereof are repealed by chap of six persons as trustees, three men and three women, to be made under and by virtue of chapter 275 of the Acts of 1896 with the full powers therein conferred upon them; while it is contended by the appellant that sections 16, 17, and 18 of chapter 275 of the Acts of 1896 have been repealed by chapter 584 of the Acts of 1904, and are no longer operative, and that the vacancies should be filled by the appointment of but three persons as trustees, to be made under the lastnamed statute, with only the limited powers therein conferred upon them. ter 584 of the Acts of the General Assembly into effect," and "they shall explain the true of Maryland passed in 1904, which," as the intent and meaning of the law and they shall answer alleges, "was a general scheme of decide, without expense to the parties conlegislation for the whole state, governing cerned, all controversies and disputes that and controlling all public school officers, and arise under it, and their decision shall be providing for the conduct and management final." It is under this provision of the law of all the public schools of the state." The that the appellant contends that the power answer further alleges that by section 11 of and jurisdiction is vested exclusively in the chapter 584 of the Acts of 1904 the pow- State Board of Education to hear and deterer is conferred upon the State Board of mine the issues presented by the petition and Education to hear and determine all con- answer in this case, and that the circuit troversies "between those entrusted with court for Anne Arundel county was without the administration of our system of educa- | jurisdiction to hear and determine the same. tion and those involving the proper admin- | It is contended by the appellees that the vaistration of the public school system," and cancies should be filled by the appointment that in so acting its power is summary and exclusive and its decision final; and it further alleges that the controversy in this case was referred to the State Board of Education for its decision, and that it decided adversely to the contention of the petitioners, "and advised that the respondents should take charge of the Annapolis school and proceed to conduct it as other schools of the same class are required to be conducted, under the provisions of the general law applicable to the entire state." This decision of the State Board of Education, the answer alleges, was final, and thus the circuit court for Anne Arundel county was without jurisdiction to hear and determine the issues presented by the petition and answer. In the record we find an agreement between the counsel for the plaintiff and the counsel for the defendant, whereby "it is agreed in this case that the office of board of district school trustees for the White public school in the city of Annapolis is vacant, and that, if the provisions of chapter 275 of the Acts of 1896 are operative and in force, the said board of district school trustees is composed of six members, but, if said Act of 1896 has been repealed by chapter 584 of the Acts of 1904 and subsequent legislation, said board of district school trustees is composed of three members, and the question of which act is in force is one of the questions submitted to the court for its decision in the above case." The appellant, in support of its contention that this question cannot be heard and determined by the circuit court for Anne Arundel county, relies upon the case of Wiley et al., Trustees, v. Board of School Commissioners of Allegany County, 51 Md. 401, Shober v. Cochrane, 53 Md. 545, and Underwood v. School Board, 103 Md. 181, 63 Atl. 221. In the first of these cases (Wiley et al., Trustees, v. Board of School Commissioners of Allegany County) a bill was filed praying for an injunction to restrain the board of county school commissioners of Allegany county from converting a public schoolhouse, which was at the time of the filing of the bill used for primary district school purposes, under the supervision of the complainants as trustees, to the use and purposes of a high school. The issue there presented was held to fall within the scope of the power conferred by section 11 of article 77 on the state board [1] There are but two questions presented to decide all disputes arising under that arby this appeal: (1) Did the circuit court for Anne Arundel county have jurisdiction to hear and determine the issues presented by the petition and answer? (2) Were sections 16, 17, and 18 of chapter 275 of the Acts of 1896 repealed by chapter 584 of the Acts of 1904, as claimed by the appellant? |ticle, and, as the power was comprehensive enough to deal with the issue in the case, it was held that the court of equity should not interfere with its exercise. In the second case (Shober v. Cochrane) Shober applied for a writ of mandamus to compel Cochrane not to interfere with or prevent him from discharging his duties as examiner and secretary and treasurer of the board of school We will consider these questions in the or- commissioners of Allegany county and from der in which they are presented. Section 11 of chapter 584 of the Acts of 1904, codified as section 11 of article 77 of the Code of Public General Laws of 1904, provides that "the State Board of Education shall, to the best of their ability, cause receiving the emoluments thereof, and to yield up said office to the petitioner. In that case the board of school commissioners, appointed by the circuit court for Allegany county, at the time of its organization, January 1, 1879, elected J. W. S. Cochrane ex board. He entered upon the duties of the office and continued to serve until the 6th day of January, 1880, regularly performing the duties of his office. In January, 1880, after the expiration of the term for which said board of school commissioners had been appointed, and while holding over under their original appointment, the circuit court, in which the power of appointment was at that time lodged, having failed to appoint their successors, they elected Shober as examiner and secretary and treasurer. This appointment resulted in a controversy and the whole controversy was submitted to the State Board of Education, before whom all parties concerned, including the school commissioners, appeared and were heard, and the State Board adjudged and determined in favor of Cochrane. It was then that Shober applied for the writ of mandamus, which was refused him, and upon appeal this court filed a per curiam order affirming 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 its decision thereon was final and conclusive." a bill in equity was filed against the board In the case of Duer v. Dashiell, 91 Md. 671, 47 Atl. 1040, in which a mandamus was asked for requiring the appellant therein, who had been the secretary, treasurer, and examiner of the former board of school commissioners, to deliver the books and papers of the office to the appellee who was elected to the same office by the new board, this court, in speaking of the two cases just cited, said: "Both Wiley's and Shober's Cases were disputes between functionaries of the department of public education over which it was the purpose of section 11 of article 77 of the Code to give the State Board of Education jurisdiction. Neither of these cases involved, as the one 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 it was the purpose of the Legislature in enacting section 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 legal effect of the passage by the Legislature of the Act of 1900, c. 29, upon the status of a subordinate official 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 be issued will be affirmed." bunal connected with the public school system. When one applies for the position of teacher, he makes himself subject to the laws governing them. *** It must have been very injurious to this school to have had such a controversy and great confusion was caused by the conflicting action of the trustees and the county board. It is well, therefore, that there is a tribunal having jurisdiction over the state to settle such controversies and to guide the county board in the discharge of their duties. Of course, there may be occasions when it is proper and necessary to apply to the courts as in Duer v. Dashiell, 91 Md. 660 [47 Atl. 1040], where a purely legal question was involved." tion as would allow of their standing together that such repeal will be declared." Higgins v. State, 64 Md. 419, 1 Atl. 876; Snowden v. State, 69 Md. 208, 14 Atl. 530; Mayor, etc., of Cumberland et al. v. Magruder et al., 34 Md. 386; Garitee v. Mayor and City | Council, 53 Md. 435; State v. Northern Central Ry. Co., 44 Md. 167. "It is only when the two acts are repugnant and plainly inconsistent with each other that the rule aj plies. If the two acts can by a fair and reasonable construction stand together, there is no ground on which it can be held that the latter act operates as a repeal of the former act." Frostburg Mining Co. v. C. & P. R. R. Co., 81 Md. 35. 31 Atl. 700. And again, it is said in the case of State v. Falkenham, 73 Md. 467, 21 Atl. 371: "As respects subsequent legislation, the rule becomes but the declaration of the common law that local laws or special laws shall not be held repealed except by the clearly indicated purpose on the part of the Legislature." [3] In considering the question here pre The case of Underwood v. School Board, like the cases of Wiley and Shober, was a dispute between functionaries of the department of public education, over which, as was said in Duer v. Dashiell, it was the purpose of section 11 of article 77 to give the State Board of Education jurisdiction. In all three of those cases the questions presented involved only the proper administra-sented, we think it right and proper that we tion of the public school system, and were therefore unlike the questions presented in the case of Duer v. Dashiell and in the present case. In the case of Duer v. Dashiell the question there involved was the effect of an act of Legislature repealing the law under which a board of school commissioners were appointed upon the tenure of office of a subordinate official appointed while they were still in office. In this case the question involved is the effect of the passage of chapter 584 of the Acts of 1904 upon sections 16, 17, and 18 of chapter 275 of the Acts of 1896, and upon the determination of it depends whether the aforesaid sections of chapter 275 of the Acts of 1896 are still in force and operative, and are to be followed by the appellant in this case in the filling of the vacancies in the local board of trustees hereinbefore mentioned. should refer to sections of chapter 275 of the Acts of 1896, other than sections 16, 17, and 18, in order that the character, purpose, and object of this legislation may be better understood. This act provided for the erection and furnishing of a school building to be built upon a lot of land in the city of Annapolis owned and held by the county school commissioners of Anne Arundel county. In the act certain persons were named in a building committee, in whom was vested certain power and authority mentioned therein. For the purpose of contributing towards the erection and furnishing of said school building, the school commissioners of Anne Arundel county were authorized and directed to issue bonds in the name of the school commissioners, with the indorsement thereon of the county commissioners of said county, to the amount of $12,000, and the mayor, counselor, and aldermen of the city of Annapolis, for the purpose of contributing towards the erection and furnishing of said building, were also authorized and directed to issue bonds in the name of the city of Annapolis to an amount not exceeding $6,009; and an act subsequent thereto (Act of 1898. In this case, as in the Duer v. Dashiell Case, the real issue is not one involving the proper administration of the public school system, but is a purely legal question. The circuit court, therefore, had jurisdiction to entertain and pass upon the application for the mandamus asked for, and, as it ordered the writ to be issued, we will now consider | c. 372) was passed authorizing and directing whether it was right in so doing. It is not contended that sections 16, 17, and 18 of the Acts of 1896 are repealed by any express provisions contained in the Acts of 1904, but that it is repealed by implication, the provisions of the latter act being inconsistent and irreconcilable with the former, as it is contended by the appellant. [2] It is the well-established rule of law in this state "that the repeal by mere implication of a former by a subsequent statute is never favored by the courts, and it is only where they are clearly irreconcilable and the school commissioners and the mayor, counselor, and aldermen of the city of Ann-, apolis to issue additional bonds for the purpose of further contributing to the completion and furnishing of said building; the additional amounts so contributed by them respectively being apportioned in the same manner as in the original act of 1896. This last-named act made it "the duty of the board of school trustees of Annapolis public school and the board of county school commissioners of Anne Arundel county to establish and maintain, in addition to the pri Md.) BOARD OF SCHOOL COM'RS v. HENKEL At the city of Annapolis. It is thus shown that who shall be appointed by the county school the erection and furnishing of this school commissioners on the first day of May (Aubuilding was the result of the contributionsgust in the amended act of 1892) or at their of both the county school commissioners and first meeting thereafter, which must be held the city of Annapolis, and was not built by during the month of May in each year, and money contributed by the school commission- who shall meet within thirty days after their ers alone, as in the case of most buildings appointment and enter upon the duties aserected for public school purposes in this signed them in chapter 5 of this act. state. In the furtherance of the objects and their first meeting they shall appoint a chairpurposes of this statute, section 16 provides man and shall give notice of their appointthat the district school trustees for said ment to the secretary of the board of county school shall always be composed of six per- school commissioners. When the trustees apsons, three of whom shall be men and three point a principal teacher, and the appointof them women, and those who were first ment shall be confirmed by the board of to act as such trustees are therein named. county school commissioners, the said prinThese, by the statute, are directed, within 30 cipal teacher shall bc ex officio secretary of days after the 1st day of May of the year the board of district trustees," etc. 1906, to meet and enter upon the duties assigned them by chapter 5 of article 77 of the Code of Public General Laws, and "at their first meeting they shall appoint a chairman to hold office for one year and shall give notice of such appointment to the secretary of the board of county school commissioners; they shall have all the rights and powers, and shall discharge all the duties conferred and imposed by chapter 5 upon district school trustees, except that they and their successors shall have the absolute power of appointment and removal of the teachers of said district school without the approval of said board of county school commissioners." Section 17 classifies the trustees so named in section 16, placing in each class one man and one woman, the first class to hold office for one year, the second for two years, and the third for three years. Section 18 provides that vacancies in said board of district school trustees "shall be filled by the board of county school commissioners; each such appointment to fill a vacancy caused by the expiration of the term of office, shall be for the term of three years from the first day of May when such term expires, and each such appointment to fill any other vacancy shall be for the unexpired portion of the vacated term; such appointees shall be citizens of Annapolis, who will take an active interest in the management of said school, a woman shall always succeed a woman and a man shall always succeed a man; so that equality in that respect shall always be maintained among the trustees, and as far as possible equality of representation shall always be maintained among them in respect of either political views in making appointments to fill vacancies in their number." It is section 7 of chapter 584 of the Acts of 1904, codified as section 7 of article 77 of the Code of Public General Laws, that the appellant contends repeals sections 16, 17, and 18 of chapter 275 of the Acts of 1896. That section provides that: "The board of district school trustees shall be composed of three persons, residents of the school district The only amendments or modifications thereby made to the provisions of section 7 of article 77 as it stood at the time of the passage of the Act of 1896, c. 275, are shown by the words written in italics; that is, with the elimination of the words italicised the section will then appear as it stood prior to the passage of the Act of 1896. Both by section 16 of the Act of 1896 and section 7 of the Acts of 1904 the trustees appointed thereunder are directed within 30 days after their appointment to meet and enter upon the duties assigned them by chapter 5 of article 77 of the Code of Public General Laws. By reference thereto it will be found in section 27 thereof-the only section in which we are interested in the determination of the question before us-that at the time of the passage of the act of 1896 the local board of trustees, among other duties thereby imposed upon them, were "to employ the teacher or teachers, subject to the confirmation by the board of county school commissioners," but it will be observed that the Act of 1896 specially provides that the powers of the trustees appointed under that act shall not be limited to the appointment of teachers, subject to approval of the commissioners, but that they and their successors shall have the absolute power of appointment and removal of such teachers without the approval of the said board of county school commissioners. It is also true that since the passage of the Act of 1896, c. 275, no material change has been made in the above-quoted language from section 27 of chapter 5 of article 77, but, like section 7 of said article, it practically remains the same as it was at the time of the passage of the act of 1896, the only modification being that the trustees shall appoint "the principal teacher" and not "the teacher or teachers," as originally provided. subject to the confirmation of the school commissioners. It will thus be seen that the Act of 1904, c. 584, is no more inconsistent with the special Act of 1896, so far as the questions here involved are affected thereby, than was the statute it repealed and re-enacted with amendments which was in full force and ef |