# Truitt v. Board of Public Works

> Court of Appeals of Maryland · July 22, 1966 · 243 Md. 375

URL: https://www.frixlaw.com/law-library/cases/9706890

## Case

- **Full name:** TRUITT, Et Ux v. BOARD OF PUBLIC WORKS OF MARYLAND, Et Al.
- **Court:** Court of Appeals of Maryland
- **Decided:** July 22, 1966
- **Citations:** 243 Md. 375; 221 A.2d 370
- **Precedential status:** Published
- **Opinion:** Concurrence by Barnes
- **Judges:** Oppenheimer, Prescott, Hammond, Horney, Marbtjry, Ofpenheimer, Barnes, McWilliams
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9706890

## How later opinions describe it (automated extraction)

- holding that the Board, in executing administrative functions, is subject to “the operation of the legal principles applicable to administrative agencies”

## Opinion text

Barnes, J.,
filed the following opinion, concurring in the result.
I concur most heartily in the result in this case and, indeed, with most of the reasoning in the Court’s opinion. Where I differ with the opinion of the Court is (1) in regard to the applicability to the States of the provisions of the First Amendment to the Constitution of the United States in regard to the establishment of religion through the Fourteenth Amendment, and (2) the assumption that the recent decision of the Court in The Horace Mann League v. Board of Public Works, 242 Md. 645 , 220 A. 2d 51 (1966) was a proper one.
(1)
I recognize—as I must—that the Supreme Court of the United States since its decision in Cantwell v. Connecticut, 310 U. S. 296 , 60 S. Ct. 900 , 84 L. Ed. 1213 (1940) has held that the provisions of the First Amendment that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof * * *” in some mysterious, but *412 really unexplained, way has become a limitation upon the States through the due process clause of the Fourteenth Amendment. In my opinion this was an improper decision and an unwarranted extension of federal judicial power. I have set out several of the reasons for my opinion in this regard in my dissenting opinion in the case of State v. Barger, decided April 20, 1966, 242 Md. 616 , particularly at pages 639 to 641, and it is not necessary to repeat those reasons here. I might add, however, that in many of the decisions in construing the First Amendment in regard to the establishment of religion the majority of the Supreme Court has, in my opinion, demonstrated a lack of understanding of its meaning and of the historical background from which it came. As a consequence, it has also, in my opinion, misapplied the “establishment clause” as well as the “free exercise” clause in many of its recent decisions, assuming for the argument that federal judicial power were properly exercised at all. The extremes to which the Supreme Court has gone in applying the so-called “wall of separation between church and State” in Engel v. Vitale, 370 U. S. 421 , 81 S. Ct. 1261 , 8 L. Ed. 2d 601 (1962) and in Abington School District v. Schempp, 374 U. S. 203 , 183 S. Ct. 1560 , 10 L. Ed. 2d 844 (1963) ironically go far toward the “establishment” of materialism and non-theism or atheism as the “religion” of both the federal and state governments. These extremes now apply to the operation of state public schools in every State in the Union and in many States—including Maryland—against a well-established policy to the contrary. Thus by judicial fiat the power of the several States over the operation of their own public school systems to this extent is removed from the States and has become a matter of federal judicial determination b}' a majority of the Supreme Court of the United States. This is a grave impairment of the federalism upon which the government of the United States is based and, in my opinion, it is the duty of the judges of the highest appellate courts of the States to point out to the Supreme Court of the United States, in every State appellate opinion where relevant, its serious error, with the hope that the Supreme Court will itself correct this error, and return to more orthodox constitutional doctrine. Failing this, if the people and their repre *413 sentatives in the Congress of the United States are made fully aware of this error and its unhappy consequences, it is not too much to hope that appropriate legislative action may be taken to correct it.
(2)
I have read with care the decision of the Court in the recent case of The Horace Mann League v. Board of Public Works, supra, and I have grave doubts in regard to the correctness of the decision of the majority of the Court in that case. As I was disqualified from sitting in that case, it would be inappropriate for me to express my views in this case. I reserve the right, however, to express those views as and when the decision in Horace Mann is later relied on as controlling authority in some later case.
I agree with the Court’s opinion that the case at bar is distinguishable from Horace Mann for the reasons set forth in the Court’s opinion and hence concur in the result.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9706890. Public record. Not legal advice.