Grimm v. County Com'rs of Washington County

• Decision Date: 10 March 1969
• Docket Number: No. 137,137
• Parties: Elwood W. GRIMM v. COUNTY COMMISSIONERS OF WASHINGTON COUNTY.
• Court: Maryland Court of Appeals

Page 626

252 Md. 626

250 A.2d 866

Elwood W. GRIMM v. COUNTY COMMISSIONERS OF WASHINGTON COUNTY.

No. 137.

Court of Appeals of Maryland.

March 10, 1969.

Vincent R. Groh, Hagerstown, for appellant.

James F. Strine, Hagerstown, for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS, FINAN and SINGLEY, JJ.

BARNES, Judge.

Elwood W. Grimm, the appellant and plaintiff below, challenges the propriety of an order of the Circuit Court for Washington County (Rutledge, J.) filed on May 13, 1968 dismissing Grimm's petition in equity for a declaratory decree that the Junk Yard Ordinance of Washington County (the Ordinance), effective September 22, 1964 was unconstitutional and void. The decision below was based primarily on the ground that the petition for declaratory relief was filed subsequent to the issuance of three warrants charging Grimm with violations of certain provisions of the Ordinance relating to fencing, burning and stacking of motor vehicles, so that all of the issues could be properly and adequately raised and decided in the normal course of the pending criminal proceedings.

The facts are not in dispute. On August 22, 1966, Grimm filed his petition for declaratory relief alleging in relevant part: (1) that he was a citizen of Washington County, who, for the past 18 years, had operated an automobile salvage and used car business on approximately 40 acres of land along the Hagerstown-Smithsburg Highway in the County; (2) that he had been issued a license to operate the junk yard business under the Ordinance and was operating that business pursuant to that license; (3) that he had been charged by the County Commissioners of Washington County, the defendants below and appellees in this Court, with the violations of certain sections of the Ordinance in regard to fencing, burning and stacking of motor vehicles; (4) that the same junk yard had been considered by the Circuit Court for Washington County in a similar Petition for Declaratory Relief in No. 23,413 Equity, in which case, Judge Irvine Rutledge stated in his opinion that "Even a solid wall or fence at this site would not screen the premises because of the hills and elevated highway"; (5) that Grimm cannot comply with Section 1 of the Ordiance and screen the site so that the contents stored there are not viewable from the highway; and (6) that the Ordinance is unconstitutional for a number of reasons, viz, as being arbitrary and capricious and not serving to promote the public health, safety or welfare; as an invalid exercise of the police power, resulting in a taking of private property for public use without the payment of just compensation; as containing vague and indefinite provisions; and because it was passed under an Enabling Act which did not contain proper guides and standards to guide the counties in the exercise of the power conferred. The prayers for relief were (1) for a declaration under Section 2 of the Uniform Declaratory Judgments Act, Code (1957), art. 31A, Sec. 2, that the Ordinance is unconstitutional, invalid, null and void, (2) to enjoin the County Attorney and the County Commissioners from prosecuting Grimm for alleged violations of the Ordinance, and (3) for other and further relief.

The County Commissioners filed an answer to the petition on September 19, 1966 admitting most of the allegations of fact but pointing out that the statement of the Circuit Court in the prior declaratory judgment proceeding had been dicta, and denying the alleged unconstitutionality of the Ordinance.

Nothing was done in the suit until May 2, 1968 when counsel for the County Commissioners, at the request of the Chancellor, filed a supplemental answer reciting that a hearing on the petition should encompass arguments of law and that no testimony should be taken, with a request that the Chancellor limit the hearing to an argument on the applicable law. This supplemental answer was filed the day of the hearing.

The Chancellor, after the hearing, filed on May 13, 1968, a written opinion in which he indicated that 'the issue of applicabilty was presented in an informal fashion,' since the lower court, after having been advised by counsel that no witnesses were to be called and only a legal argument presented, had instructed counsel for the County Commissioners 'to file another pleading to present squarely the question of the applicability of a declaratory judgment.' The Chancellor pointed out that there had been a change of administration in the County and that a new County Attorney had been appointed since the former County Attorney had filed the original answer. The new attorney, at the court's request, had filed the supplemental answer raising the issue of applicability. The Chancellor concluded that in view of the pending criminal charges, he would exercise his discretion by refusing a declaratory judgment, pointing out, however, that Grimm was not denied his day in court to argue the constitutionality of the Ordinance in the pending criminal cases. This appeal was timely taken from the Chancellor's order passed in accordance with his opinion.

Grimm presents two arguments to us:

1. The County Commissioners originally having fully answered the petition for a declaratory decree without alleging the pendency of the criminal proceedings as a defense could not later raise the issue of the propriety of the declaratory relief for this reason.

2. The issuance of the warrants charging a violation of the Ordinance, which is malum prohibitum in nature, did not preclude a declaratory decree in regard to the constitutionality or validity of the Ordinance.

We are of the opinion that the Chancellor did not abuse his discretion in either entertaining the question of the propriety of granting declaratory relief or in declining to grant such relief, so that we shall affirm the order dismissing the petition and requiiring Grimm to pay the costs.

1.

As the Chancellor pointed out in his opinion, the issue in regard to the applicability of the declaratory judgment procedure was presented in an 'informal manner.' Maryland Rule 329 f states, in part, that 'Supplemental pleadings shall not be allowed, except in the discretion of the court.' (Emphasis supplied.) In the present case, the Chancellor, himself, directed the County Attorney to file a pleading raising the issue and although the supplemental answer did not directly pose the issue, it did request that the hearing be limited to questions of law 'concerning all allegations of said Petition for Declaratory Decree' thereby suggesting that all legal issues would be before the Chancellor at the hearing. The Chancellor found that no surprise was involved and that Grimm should not be permitted 'to take technical advantage of the situation,' although 'a more formal way would have been to permit the County to withdraw its first answer and demur, * * *.' This would have been a more formal and the preferred manner of proceeding-see Greenbelt Homes, Inc. v. Board of Education, 248 Md. 350, 237 A.2d 18 (1968)-but in view of the lack of surprise, we cannot say that the Chancellor abused his discretion in directing the County Attorney to file the supplemental answer and in considering the issue of the proper applicability of declaratory relief procedures in the instant case.

Indeed, inasmuch as the applicable statute gives the trial court a measure of discretion in regard to whether or not to grant the declaratory relief, as will be more fully consisdered later in this opinion, it would appear that the trial judge would be authorized to explore the applicability of the statutory remedy, sua sponte, in order to exercise adequately and properly his discretion in the particular case.

2.

Article 31A, Section 2 gives the courts the right to grant declaratory relief pursuant to the Uniform Declaratory Judgment Act (the Act) to 'Any person * * * whose rights, status or other legal relations are affected by a statute, municipal ordinance * * *' and such a person 'may have determined any question of construction or validity, arising under the * * * statute, ordinance * * *.' Article 31A, Section 6, 'Discretionary relief', provides, in part, as follows:

'Relief by declaratory judgment or decree may be granted in all civil cases in which an actual controversy exists between contending parties, or in which the court is satisfied that antagonistic claims are present between the parties in-involved which indicate imminent and inevitable litigation, * * *. When, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed:

but the mere fact that an actual or threatened controversy is susceptible of relief through a general common-law remedy, or an equitable remedy, or an extraordinary legal remedy, whether such remedy is recognized or regulated by statute or not, shall not debar a party from the privilege of obtaining a declaratory judgment or decree in any case in which the other essentials to such relief are present; * * *.' (Emphasis suppled.)

By the enactment of the Acts of 1945, Chapter 724, the General Assembly made it clear that declaratory relief was to be granted under the Act notwithstanding the availability of another adequate remedy either at law or in equity. This enactment resulted in a legislative reversal of the decisions of our predecessors to the effect that declaratory relief was not available in such situations. See Mayor and City Council of Baltimore v. Seabolt, 210 Md. 199, 123 A.2d 207 (1956). This legislation, however, did not modify, either by terms or by construction, the explicit language of Section 6 of the Act, and our decision in Seabolt made it clear that the Act, as amended by the Act of 1945, Chapter 724 did not say 'that there is a right to declaratory relief wherever there is a right to a usual legal or equitable remedy; it says that the existence of such a remedy shall not bar declaratory relief, not that ordinary...