
    J. THOMAS WILLIAMS vs. HENRY M. FITZHUGH ET AL.
    
      State .Agency — Immunity From Suit.
    
    The board of trustees of a State normal school, consisting of the State board of education and the State superintendent of schools, cannot be sued by one employed as teacher for breach of contract, there being no statutory authority for such a suit,, and the board having no funds available for the payment of a judgment against it.
    
      Decided February 12th, 1925.
    
    Appeal from the Baltimore City Court (Frank, J.).
    Action, by J. Thomas Williams against Dr. Henry M. .Fitzhugh and others, constituting the board of trustees of the State Formal School at Bowie. From a judgment in favor of defendants, plaintiff appeals.
    Affirmed.
    The cause was argued before Borro, 0. J., Pattisow, Ureter, Adkins, Oeeutt, Digges, Parke, and Walsh, JJ.
    
      W. Ashbie Hawkins, for the .appellant..
    
      Thomas H. Robinson, Attorney General, and Edward H. Burke, Assistant Attorney General, submitting on brief, for the appellees.
   Urner, J.,

delivered the opinion of the Court.

The declaration in this ease alleges that the defendants, who constitute the board of trustees of .the State Formal School a.t Bowie,

“on or about the 25th day of August, 1921, engaged the services of the plaintiff as a teacher at the State Formal School, at Bowie, for the school year 1921-1922, at and for the sum of nine hundred and sixty dollars per year, payable in monthly instalments; that on or about the 12th day of February, 1922, the plaintiff was dismissed without cause from the said State Normal School at Bowie, no charges of any kind whatever having been preferred against him, and that the salary due the plaintiff for the remainder of the term was refused him, and that the payment of the same is still refused though demand for the same has been made, and though the Legislature of Maryland at its session of 1920 duly appropriated the money to pay the said salary.”

A demurrer to the declaration wasi siustained, and, the plaintiff -declining! to amend1, judgment on the demurrer in favor of the defendants for costs was entered.

The question to be determined is whether the defendants, as the board of trustees of the Normal School, are sneable for the alleged breach of contract. 'Their defense, interposed by the demurrer, is that they constitute a State agency exercising governmental functions, and are exempt from liability to be sued iu that capacity. It is contended for the plaintiff, nlow the appellant, that the object of the suit is simply to require the performance by the defendants' of a duty imposed upon .them by laiw to pay the plaintiff money appropriated by the Legislature for the service he was rendering in the position from which he was dismissed, .and that for such a purpose the action is maintainable.

The appellant’s brief explains that his employment as a teacher at the Normal School was discontinued because of a failure of the water supply, which necessitated the dismissal of the pupils for the remainder of the term. It appears upon examination of the Act of Assembly, to which the declaration refers, that the schedules of salaries appropriated for teachers at the State Normal School at Bowie include no sum corresponding! to the amount of the salary here sought to he iu. part recovered. The demurrer states that the defendants have no funds available for the payment of any judgment which might be rendered against them in this case.

By section 82 of article 77 of the Code it is provided: “The state board of education and tbe state superintendent of schools shall be the board of trustees of each of the normal schools maintained and supported by the State.” The general control of the educational interests of the State is committed to the State Board of Education. Section 12. It is invested with authority to determine the State’s educational policies, and i’s charged with the duty of executing the Cbde provisions by which public education is sought to be promoted. v Section 11. It is empowered to “enact by-laws for the administration of the public school system, which when enacted .and published, shall have the force of law.” Ibid. For the purpose of enforcing the provisions of article 77 of tbe Code, and the by-laws of the board duly enacted and published, it is authorized, if necessary, to institute legal proceeding®. Ibid. There is no provision that the State Board pi Education may be sued either in its general capacity pr as forming, with the State Superintendent of Education, the board of trustees of the Formal Schools. Feither board has ■any means of procuring funds beyond the amount it receives from the State treasury, under budget appropriations by the General Assembly for specific uses.

Public education is a highly important interest of the State government. In the promotion of that interest the State is acting through au agency which the Legislature created for that purpose aud to which broad administrative powers have been delegated. In 'performing its functions the State Board of Education, is representing and exerting tbe State’s authority. As a governmental agency of the State it shares the immunity from suit to which the State itself is entitled, in the absence of any legislative waiver of that exemption.

. In State v. Rich, 126 Md. 643, we held the State Beads Commission to be immune from suit for an injury resulting from alleged negligence in the maintenance of a highway under its control. After describing the commission as a “governmental agency charged with the exercise of an important public function,” and stating that the “establishment and maintenance of highways for the use of the people is’ essentially a duty and prerogative of government,” we said: “The State could act only through its agents in the prosecution of its policy of road .improvement, and it organized the Roads Commission as the particular agency for utilizing a portion of its power and resources to that end. In view of the relation which the commission thus bears to the State, it is entitled, in a case like the present, to'the benefit of the State’s immunity from suit, unless it has been made liable to be sued for negligence by legislative enaotr ment. The theory upon which the State is held to be exempt from such a liability is that the prosecution of suits against it, without its .consent, would be incompatible with its sovereignty, and that any claim as to which it ought justly to assume responsibility would be satisfied voluntarily through the action of the Legislature. State v. Baltimore & Ohio R. R. Co., 34 Md. 374; Poe's Pleading (4th Ed.), see. 512.”

The State Roads Commission, at the time of that .decision, Was liable, under section 78 of article 91 of the Code, to be sued for a violation of any of the provisions of the road law or of any contract thereunder, but it was held that the 'Code did not permit an action of tort against the commission, all •of its funds being definitely devoted by law to other purposes, and no power being vested in the commission to raise money by taxation or otherwise to satisfy a judgment for damages. Similar considerations controlled the decision in Weddle v. School Commissioners, 94 Md. 334, and the same principle was applied in Fisher v. Carozza Co., 138 Md. 586.

The present suit cannot be classified with Weyler v. Gibson, 110 Md. 636, which was an action of ejectment against a State officer to protect property of the plaintiff from acquisition by the State without compensation, nor with the oases of Weller v. Mueller, 120 Md. 633, and Magruder v. State Roads Commission, 125 Md. 525, which were proceedings to prevent the improper performance of public duties to the injury of taxpayers. The obj ect of this action is to recover damages from a governmental agency for an act done in the ’course of the administrative service for which it was created: There being no legislative assent to such a suit against the State’s representatives -who are defendants in this ease, we must hold, upon the principle of .the oases first cited, that the action,cannot be maintained.

'Sonne of the cases which the appellant relies npon were concerned with the enforcement by mandamus of the performance of ministerial duties. If it could be shown that .there is. in the custody of State officials, not '.amenable to suit at law, a salary fund to wbieh the appellant is entitled, and the payment of which is a clear legal duty, not involving the exercise of discretion, the writ of mandamus might be available to enforce the asserted right. But that question is not ntow before ns for decision. In the-case presented our conclusion •is that the ruling of the trial court on the issue raised by the demurrer to the declaration Was correct.

Judgment affirmed, with costs.  