Commissioners of Cambridge v. Eastern Shore Public Service Co. of Md.

• Decision Date: 10 March 1950
• Docket Number: 100.
• Citation: 72 A.2d 21,194 Md. 653
• Parties: COMMISSIONERS OF CAMBRIDGE v. EASTERN SHORE PUBLIC SERVICE CO. OF MARYLAND.
• Court: Maryland Court of Appeals

72 A.2d 21

194 Md. 653

COMMISSIONERS OF CAMBRIDGE v. EASTERN SHORE PUBLIC SERVICE CO. OF MARYLAND.

No. 100.

Court of Appeals of Maryland.

March 10, 1950

Frederick P. McBriety, Cambridge (Emerson C. Harrington Jr., Cambridge, on the brief), for appellant.

Frederick W. C. Webb, Woodcock, Webb, Bounds, Travers & Adkins, all of Salisbury, on the brief, for appellee.

Before MARBURY, C J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL JJ.

MARKELL, Judge.

On the former appeal in this case we sustained, against a demurrer, the bill of complaint for a declaratory decree that defendant is without a franchise to serve the citizens of Cambridge with electricity. Commissioners of Cambridge v. Eastern Shore Public Service Company, Md., 64 A.2d 151. After remand of the case plaintiff filed a petition 'that a jury be impanelled as provided in Section 9 of Article 31A of Flack's 1947 Code for the purpose of determining the following issue of fact: Does the defendant hold a franchise to operate its business within the corporate limits of Cambridge?' Section 9 of Article 31A, the Uniform Declaratory Judgments Act, (which is not uniform as to section 9, since that section is taken, part from the draft act, part from the federal act), provides, '9. (Jury Trial.) When a proceeding under this Article involves the determination of issues of fact, such issues may be submitted to a jury in the form of interrogatories, with proper instructions by the court, and either a general or special verdict may be taken.' Plaintiff contends that this provision for submission of issues to a jury is not discretionary, but mandatory, even in an equity case, thus overthrowing equity procedure, as settled for centuries in Maryland and in England, Borssuck v. Pantaleo, 183 Md. 148 36 A.2d 527, 156 A.L.R. 1140; Chase v. Winans, 59 Md. 475; Miller on Equity Procedure, § 232, and also providing means of insuring delay in a special procedure designed to expedite justice. The instant case is an equity case; the nature of the case is equitable, and after declaratory relief the only relief plaintiff could obtain would be equitable.

On plaintiff's petition an order to show cause was passed. Defendant filed an answer, showing cause, to which plaintiff filed a replication, in which it demurred to the answer. The court overruled plaintiff's demurrer and dismissed its petition for submission of an issue to a jury. Plaintiff has appealed from the orders of the court in (1) overruling its demurrer and (2) denying its petition.

More than a bare...