Eliason v. State Roads Commission, 278

• Decision Date: 04 April 1963
• Docket Number: No. 278,278
• Parties: Elmer O. ELIASON, Jr. v. STATE ROADS COMMISSION et al.
• Court: Maryland Court of Appeals

Page 257

231 Md. 257

189 A.2d 649

Elmer O. ELIASON, Jr. v. STATE ROADS COMMISSION et al.

No. 278.

Court of Appeals of Maryland.

April 4, 1963.

Benjamin Lipsitz, Baltimore, for appellant.

Thomas W. Jamison, III, Sp. Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., and Earl I. Rosenthal, Sp. Atty., Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and HAMMOND, PRESCOTT, MARBURY and SYBERT, JJ.

HAMMOND, Judge.

In a mandamus action by a citizen against the State Roads Commission and the Commissioner of Personnel of Maryland to require them to file written charges against three employees of the Commission, seeking their discharge under the Merit System law, the trial court directed a verdict for the respondents, denied the writ and entered judgment for the respondents for costs. The citizen has appealed, claiming that the administrative determinations not to allow charges to be filed were invalid because they were arbitrary, and unconstitutional because they were reached without affording him the opportunity to present evidence and argue his contentions.

Code (1957), Art. 64A, Sec. 33, provides that no employee may be permanently removed from the classified service except for cause, upon written charges and after an opportunity to be heard in his own defense, and concludes: 'Such charges may be filed by the appointing authority or by any citizen, provided, however, that no such charges may be filed by a citizen, without the consent of the appointing authority or of the Commissioner * * *.'

Clearly the statute does not make a hearing a prerequisite to the decision of the appointing authority or the Commissioner whether to permit charges to be filed. It specifies that the employee charged must be given a hearing; it is silent as to a hearing for the complaining citizen. It cannot reasonably or plausibly be inferred the Legislature contemplated that the many departments and agencies of the State were to interrupt the normal functioning of their varied everyday duties and affairs to conduct trials on whether to seek the discharge of an employee. Unless another statute or due process compels a hearing, the appellant's contention that he was wrongfully denied one must fail.

The appellant suggests that the Administrative Procedure Act, Code (1957), Art. 41, Secs. 244-256, made a hearing mandatory. Assuming the State Roads Commission or the Commissioner of Personnel to be an agency covered by the Act, its definitions and provisions make it plain that unless there was a constitutional necessity to give the citizen a hearing on his request for action against the employees the Act does not call for one. Section 251 requires a hearing only in a 'contested case.' Section 244 defines a 'contested case' as a proceeding before an agency 'in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing.' There is no such requirement of law and we find no constitutional right to a hearing to establish that the request of a citizen for action against an employee should be granted.

In Albert v. Public Service Commission, 209 Md. 27, 120 A.2d 346, we pointed out that apart from statute the necessity of a hearing in an administrative proceeding depends on the character of the proceeding and the nature of the interest of the person seeking relief. Where the administrative body acts not in a judicial or quasi-judicial capacity, but rather in the exercise of an executive, administrative or legislative function and the interests of the individual involved are not particular and immediate rights of liberty or property--that is, if he seeks the exercise of no more than a...