Commissioners of Cambridge v. Eastern Shore Public Service Co.

• Citation: 64 A.2d 151,192 Md. 333
• Decision Date: 11 February 1949
• Docket Number: 83.
• Parties: COMMISSIONERS OF CAMBRIDGE v. EASTERN SHORE PUBLIC SERVICE CO.
• Court: Court of Appeals of Maryland

64 A.2d 151

192 Md. 333

COMMISSIONERS OF CAMBRIDGE v. EASTERN SHORE PUBLIC SERVICE CO.

No. 83.

Court of Appeals of Maryland

February 11, 1949

Appeal from Circuit Court, Dorchester County; W. Laird Henry, Chief Judge.

Suit by the Commissioners of Cambridge, a municipal body corporate against the Eastern Shore Public Service Company of Maryland a body corporate, for a declaratory judgment declaring that defendant is without a franchise to serve the citizens of Cambridge with electric power. From a decree sustaining a demurrer, plaintiff appeals.

Decree reversed and case remanded.

Frederick P. McBriety, of Cambridge, for appellant.

F. W. C. Webb, of Salisbury (Woodcock, Webb, Bounds & Travers of Salisbury, on the brief), for appellee.

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

HENDERSON Judge.

This appeal is from a decree of the Circuit Court for Dorchester County sustaining a demurrer to a bill of complaint for declaratory relief, without leave to amend, and dismissing the bill. The bill alleges that the appellant was granted authority, by chapter 339 of the Acts of 1947, to construct or acquire an electric light and power generating and distributing system; that the appellee presently owns and operates an electric power distribution system through which it distributes and sells all the electric energy consumed in Cambridge; that the appellee claims to hold an exclusive franchise to sell and distribute electric energy in Cambridge, but the appellant believes and alleges that the appellee holds no franchise to do so, exclusively or otherwise. The bill alleges that the controversy as to the franchise should be resolved by a declaratory decree, before the appellee applies to the Public Service Commission for a certificate of authority to construct its own system, and before spending the large sums of money that would be necessary for surveys, engineering and other expenses preliminary to such application. The prayers of the bill are that the appellee be declared to be without franchise to serve the citizens of Cambridge, and for other and further relief.

The appellee contends, and the chancellor decided, that declaratory relief should not be granted because: (1) the special form of remedy provided by the Public Service Commission Law precludes declaratory relief, and (2) declaratory relief in advance of consideration by the Public Service Commission is inappropriate, under the circumstances shown, in the exercise of a sound judicial discretion.

The rule that where an appeal from the action of an administrative body is provided by statute, such remedy is exclusive, is older than declaratory judgment and has a wider application. Board of County Commissioners of Anne Arundel County v. Buch, Md., 58 A.2d 672, 676; Kahl v. Consol. Gas, Electric Light & Power Co., Md., 60 A.2d 754, 758, 760. But it is predicated upon the undesirability of by-passing administrative action, particularly where such action is within the expert knowledge of the administrative tribunal. Compare Oursler v. Tawes, 178 Md. 471, 13 A.2d 763, and Tawes v. Williams, 179 Md. 224, 17 A.2d 137, 132 A.L.R. 1105. Many instances might be cited where the rule has not been applied, in cases involving property or constitutional rights which are essentially judicial and not administrative questions. Compare Jones v. Gordy, 169 Md. 173, 180 A. 272, and Buck Glass Co. v. Gordy, 170 Md. 685, 185 A. 886. The rule was applied in Tawes v. Williams, supra, in a case arising under the Declaratory Judgments Act, Art. 31A of the Code, although there was no specific reference to special remedies in the Act at that time. The statutory right to appeal from an income tax assessment was held to be exclusive. The decision was criticized by Borchard, Declaratory Judgments, 2d Ed., p. 249, 345, on the ground that strictly legal and constitutional questions were presented, although the learned author recognizes that the declaratory action was not designed to interfere with the jurisdiction of special courts or special statutory procedure for a particular type of case (p. 342).

In 1945 the Maryland legislature amended section 6 of Art. 31A and by recitals in the amendatory act, chapter 724, Acts of 1945, made it clear that it was the legislative intent to make the declaratory remedy freely available, regardless of whether another adequate remedy was available at law or in equity. We have fully recognized the force of the amendment. Ryan v. Herbert, 186 Md. 453, 458, 460, 47 A.2d 360; Schultz v. Kaplan, Md., 56 A.2d 17, 19; Staley v. Safe Deposit & Trust Co., Md., 56 A.2d 144, 149. After stating generally that relief by declaratory judgment or decree may be granted in all civil cases in which an actual controversy, susceptible of termination, exists, section 6, as amended, provides: '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; * * *.'

The appellee contends that a special statutory remedy exists under sections 380 and 408 of Art. 23 of the Code. Section 380 provides, among other things, that complaints in writing may be filed with the Public Service Commission, 'setting forth anything * * * done or omitted to be done by any common carrier or corporation subject to its supervision, in violation' of law or the terms and conditions of its franchise or charter, or of any order of the Commission; and 'it shall appear to the commission that there are reasonable grounds therefor, it shall investigate such charges in such manner and by such means as it shall deem proper, and take such action within its power as the facts justify.' If it decides to investigate and does so it is directed to pass an order either dismissing the complaint or directing 'the common carrier complained of to satisfy the cause of the complaint in whole or to the extent which the commission may specify and require.'

Section 408 provides that if the Commission finds a violation of law or its orders, it 'shall direct counsel to the commission to commence an action or proceeding before one of the judges of the supreme bench of Baltimore City or in one of the circuit courts of the counties, in the name of the commission, for the purpose of having such violation stopped and prevented either by mandamus or injunction.'

It is clear that the Eastern Shore Public Service Company and the municipal corporation of Cambridge, if it exercises the powers granted to it by chapter 339, Acts of 1947, are both subject to the general supervisory powers of the Public Service Commission, as 'electrical corporations.' Sections 344 and 345 of Art. 23 of the Code. While such powers cover the exercise, abandonment or transfer of a franchise, it is equally clear that the Commission has no power to grant a franchise. Kelly v. Consolidated Gas, E. L. & P. Co., 153 Md. 523, 539, 138 A. 487. That is essentially a legislative function. The Public Service Commission is essentially a regulatory...