Baltimore Gas and Elec. Co. v. Department of Health and Mental Hygiene

• Citation: 395 A.2d 1174,284 Md. 216
• Decision Date: 03 January 1979
• Docket Number: No. 68,68
• Parties: BALTIMORE GAS AND ELECTRIC COMPANY v. DEPARTMENT OF HEALTH AND MENTAL HYGIENE of the State of Maryland.
• Court: Court of Appeals of Maryland

Page 216

284 Md. 216

395 A.2d 1174

BALTIMORE GAS AND ELECTRIC COMPANY v. DEPARTMENT OF HEALTH AND MENTAL HYGIENE of the State of Maryland.

No. 68.

Court of Appeals of Maryland.

Jan. 3, 1979.

James A. Biddison, Jr., Baltimore (W. Robert Buchanan and Paul W. Davis, Baltimore, on the brief), for appellant.

Jeffrey E. Howard, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

SMITH, Judge.

We shall here hold that Maryland Code (1957, 1971 Repl.Vol., 1978 Cum.Supp.) Art. 43, § 706 (the statute) does Not require an electric company to obtain a permit from the Department of Health and Mental Hygiene (the Department) as a condition to use of one of its "generating stations."

The statute provides in pertinent part:

"The Department may require by regulation that before any person either builds, erects, alters, replaces, operates, sells, rents, or uses any article, machine, equipment or other contrivance specified by such regulation the use of which may cause emissions into the air, such person shall obtain a permit to do so or be required to register with the Department. The aforesaid provisions of this section shall not apply . . . to generating stations constructed by electric companies. The Secretary of Health and Mental Hygiene upon notification from the Public Service Commission of an application for a certificate of public convenience and necessity shall prepare a recommendation in connection with the registration or permit required by this section. Such recommendation shall be presented at the hearing required under Article 78, § 54A, of the Annotated Code of Maryland. The decision of the Public Service Commission in connection with the registration or permit shall be binding on the Secretary of Health and Mental Hygiene, subject to judicial review as set forth in the provisions of Article 78, § 91, subsection (a)."

When this section was originally enacted by Chapter 244 of the Acts of 1970 it consisted only of the first sentence and exclusions (not here pertinent) in that portion of the second sentence prior to the statement relative to "generating stations constructed by electric companies." Chapter 31 of the Acts of 1971 (the Act) added the word "aforesaid" before "provisions" in the second sentence and the remainder of the present section including the language relative to "generating stations."

The Department initially read the Act as giving it no authority to require electric companies to obtain permits from it for their generating stations. After the General Assembly declined on several occasions to accede to the requests of the Department for the grant of such authority, the Department determined that a more careful study of the whole Act warranted a conclusion that electric companies could not operate their generating stations without permits from it. ¹ Accordingly, it dispatched a letter to appellant, Baltimore Gas and Electric Company (BG&E), requesting that it submit applications for permits to operate "all (of its) fuel burning equipment . . . ." BG&E replied with an assertion that after careful study of the matter it was of the view that "the clear and unambiguous exception granted for electric generating stations in the second sentence of Article 43, Section 706" was "at odds" with the position taken by the Department. Therefore, it immediately sought a declaratory judgment in the Superior Court of Baltimore City. That court held "that the exclusionary provision of Section 706 is ambiguous." It then determined that under the Act the Department continued to have "permit authority over the then existing electric plants," but not over new facilities. It was of the view, however, that "any changes or modifications of facilities are subject to Department approval." BG&E appealed to the Court of Special Appeals. We granted the writ of certiorari prior to consideration of the case by that court.

In Police Comm'r v. Dowling, 281 Md. 412, 379 A.2d 1007 (1977), we said in pertinent part relative to statutory construction, citing a number of cases for each of the statements there made:

"The cardinal rule of statutory construction is to ascertain and carry out the real legislative intent. In determining that intent the Court considers the language of an enactment in its natural and ordinary signification. . . . A corollary to this rule is that if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the General Assembly. . . . A court may not insert or omit words to make a statute express an intention not evidenced in its original form. . . . The General Assembly is presumed to have had, and acted with respect to, full knowledge and information as to prior and existing law and legislation on the subject of the statute and the policy of the prior law. . . . Absent a clear indication to the contrary, a statute, if reasonably possible, is to be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory . . .." Id. at 418-19, 379 A.2d at 1011.

In Height v. State, 225 Md. 251, 170 A.2d 212 (1961), Judge Prescott said for the Court:

"(W)hen the words of a statute are of doubtful meaning, the Court, in determining legislative intent, will consider not only their usual and literal meanings, but their meaning and effect considered in the light of the setting, the objectives and purposes of the enactment, and the consequences that may result from one meaning rather than another, Tyrie v. Baltimore County, 215 Md. 135, 137 A.2d 156 ((1957)), with the real legislative intent prevailing over literal intent. Wright v. State, 189 Md. 218, 224, 55 A.2d 849 ((1947)); McKeon v. State, 211 Md. 437, 443, 127 A.2d 635 ((1956))." Id. at 257, 170 A.2d at 214.

Whenever possible an interpretation should be given to statutory language which will not lead to absurd consequences. Mazor v. State, Dep't of Correction, 279 Md. 355, 361, 369 A.2d 82 (1977); Fairchild v. Maritime Air Serv., 274 Md. 181, 186, 333 A.2d 313 (1975). In Holy Cross Hospital v. Hospital Services Cost Review Commission, 283 Md. 677, 685, 393 A.2d 181 (1978) we cited a number of cases for the proposition that it is well understood that the view taken of a statute by administrative officials soon after its passage is strong, persuasive influence in determining the judicial construction and should not be disregarded except for the strongest and most urgent reasons, although where the language is plain and unambiguous the judicial construction cannot be controlled by extraneous considerations, since no custom, however venerable, can nullify the plain meaning and purpose of a statute. We said, "Even if sufficient time had passed since enactment of the statute here under consideration for administrative interpretation of it to be regarded as long-standing, Cf. Department v. Greyhound, 247 Md. 662, 669, 234 A.2d 255 (1967), no such interpretation exists here because the Commission has reversed its position," precisely the same situation which exists in this case. On statutory construction see also the very full and complete annotation set forth at pages 472-73 of the Perkins edition published in 1896 of Alexander v. Worthington, 5 Md. 471 (1854).

The Department strongly argues "that the 'plain meaning rule' (sought to) be applied (by BG&E) to the one sentence amendment" here involved is not determinative of the case since it "was but a small fraction of the Plant Siting Act of 1971" and we may not "ignore the rest of the Act in reaching (our) decision in this case."

Although some people may have referred to the Act as the "Plant Siting Act of 1971" (as has the Department) or the "Power Plant Siting Act," the General Assembly did not provide, as it sometimes does in enacting legislation, that the Act might be known or cited by some specified short title.

The Department correctly cites Howell v. State, 278 Md. 389, 392, 364 A.2d 797 (1976); State v. Fabritz, 276 Md. 416, 421, 348 A.2d 275 (1975), Cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976); and Giant of Maryland v. State's Attorney, 267 Md. 501, 509, 298 A.2d 427, Appeal dismissed, 412 U.S. 915, 93 S.Ct. 2733, 37 L.Ed.2d 141 (1973), for the proposition that all parts of a statute are to be read together to find the intention as to any one part in support of its contention that the entire Act must be examined, not just Art. 43, § 706. However, a case more closely analogous to the facts here is Tise v. Shaw, 68 Md. 1, 11 A. 363 (1887). Then Code Art. 2, § 1 provided that "no action of ejectment, waste, partition," etc., "sh(ould) abate by the death of either or any of the parties to such action," while Art. 75, § 40 provided that "where a party in any action brought to recover lands, or in which the title thereof is involved, shall die, and the proper person to be made a party in the place of the person so dying, shall be an infant, such action shall not be tried during such infancy unless the guardian or next friend of such infant satisfy the court that it will be for the benefit of the infant to have the action tried during his infancy; but the action may be continued till the infant arrives at age." An action in ejectment had been instituted against a person who died. On motion of the plaintiffs his infant children, then under the age of 16, were made parties defendant and a guardian ad litem was appointed to defend for them. He sought to invoke the provisions of Art. 75, § 40 to have the matter continued until they should reach full age. In response to a contention that the latter provision was no longer operative, our predecessors looked to the fact that Art. 2, § 1 had been enacted as § 1 of Chapter 80 of the Acts of 1785 and Art. 75, § 40 came into our statutory law through § 2 of the same Act. Judge Irving said for the Court:

"The two ...