Harford County v. Schultz, 139

• Decision Date: 05 April 1977
• Docket Number: No. 139,139
• Parties: HARFORD COUNTY, Maryland v. James H. SCHULTZ et al.
• Court: Maryland Court of Appeals

Page 77

280 Md. 77

371 A.2d 428

HARFORD COUNTY, Maryland v. James H. SCHULTZ et al.

No. 139.

Court of Appeals of Maryland.

April 5, 1977.

Maurice W. Baldwin, Jr., Deputy County Atty., Bel Air (John E. Kelly, County Atty. and Robert A. Kreamer, Asst. County Atty., Bel Air, on the brief), for appellant.

No brief filed on behalf of appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

SMITH, Judge.

The issue presented here by appellant, Harford County, Maryland (the County), and which was considered in the lower court concerns the validity of a proposed amendment to its County charter. Ex mero motu we raise the issue of jurisdiction. Since we find a lack of jurisdiction, we shall vacate the decree of the trial court and remand the case to it for a dismissal of the proceeding.

In the spring and summer of 1976 the County Council of the County proposed two amendments to the County charter. One, Bill No. 76-35, was vetoed by the County Executive and passed over his veto. The other, Bill No. 76-56, allegedly was certified to the Board of Supervisors of Elections prior to the expiration of the time for consideration of the proposal by the County Executive. Maryland Constitution Art. XI-A, § 5 requires proposed charter amendments to 'be submitted to the voters of said . . . County at the next general or congressional election occurring after the passage of (the) resolution' proposing an amendment. It is conceded that the issue with reference to Bill No. 76-56 is moot since that bill was rejected by the people at the general election held on November 2, 1976.

The County instituted a declaratory judgment action against the appellees who constitute the Board of Supervisors of Elections for Harford County (the Board). They were the only defendants named in the bill. It sought a declaration that both bills were invalid and an injunction against advertising or placing these bills on the election ballot.

The chancellor (Higinbothom, J.) filed a comprehensive opinion holding the bills to be 'valid and proper legislative acts to be submitted to the voters of Harford County at the November 1976 election . . ..' He noted in the course of his opinion:

'The present proceeding appears to be a good example of the need for a separate counsel for the Harford County Council, which is attempted to be accomplished by Bill No. 76-35. This suit has been brought in the name of Harford County, Maryland, a body corporate, seeking to enjoin the Board from considering two proposed charter amendments adopted by the Council. The only defendants are the members of the Board and they have no particular interest in defending the validity of the ordinances in question. In fact, the answer of the defendants concedes that the Board does not take a position as to the legal questions raised in the bill of complaint, although at the hearing the defendants did present evidence by the attorney employed by the Harford County Council. The plaintiff, as a body corporate, is actually expressing in this case the views of the Department of Law, which, by Section 402 of the Charter, is an agency of the Executive Branch of the county government. Nowhere in this case are the views of the Harford County Council expressed, although most certainly the Council is vitally concerned with the outcome of the case. No question of the standing of the plaintiff to bring this action has been raised, however.'

The chancellor's view of the position of the Board is emphasized by the fact that no brief for the appellees has been filed in this Court or the Court of Special Appeals. We granted certiorari prior to consideration of the matter by the Court of Special Appeals.

In State v. McCray, 267 Md. 111, 126, 297 A.2d 265 (1972), Judge Orth 'note(d for this Court) that a question of the jurisdiction of the lower court, even though not tried and decided below and neither briefed nor argued, may be raised by this Court, sua sponte, as an exception to the general rule established by Maryland Rule 885,' citing a number of cases. A general principle of law is that for a court to have jurisdiction it must have before it a justiciable issue. As stated by Judge Henderson for the Court in Hammond v. Lancaster, 194 Md. 462, 471-72, 71 A.2d 474 (1950), citing DeTocqueville, Democracy in America, and Bryce, American Commonwealth, 'courts will not decide moot or abstract questions, or, in the absence of constitutional mandate, render advisory opinions.'

This proceeding was brought under the Maryland version of the Uniform Declaratory Judgments Act as altered slightly in language when it became Md.Code (1974) §§ 3-401 to 415, Courts and Judicial Proceedings Article. With an exception not relevant to this proceeding, § 3-409(a) provides in pertinent part:

'(a) In general.-. . . (A) court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if:

(1) An actual controversy exists between contending parties;

(2) Antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or

(3) A party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it.'

Here we have no assertion of 'a legal relation, status, right, or privilege . . . challenged or denied by an adversary party . . ..' Therefore, to come within the purview of the act there must be either '(a)n actual controversy between contending parties' or there must be '(a)ntagonistic claims . . . between the parties involved which indicate imminent and inevitable litigation . . ..'

In Kirkwood v. Provident Savings Bank, 205 Md. 48, 106 A.2d 103 (1954), Judge Delaplaine said for our predecessors:

'Generally, a controversy that will justify a court in entertaining a suit under the Uniform Act must be something more than a mere difference of opinion or a theoretical question. It must present a state of facts involving persons adversely interested in matters in respect to which a declaration is sought. Tanner v. McKeldin, 202 Md. 569, 576-577, 97 A.2d 449, 452 ((1953)).' Id. at 53-54, 106 A.2d at 106.

In Atkinson v. Sapperstein, 191 Md. 301, 316, 60 A.2d 737, 743 (1948), Judge Collins observed for the Court, citing a number of cases, 'It is well established law in this State that unless there be an actual controversy or at least a potential controversy and the persons to the controversy made parties, a declaratory decree cannot be sustained.'

In Patuxent Co. v. Commissioners, 212 Md. 543, 129 A.2d 847 (1957), Judge Prescott said for the Court:

'(I)n this State, it consistently has been held that in order to invoke the jurisdiction of the Courts for declaratory relief, there must be a justiciable issue or controversy; and, insofar as we have been informed, it is universally so held. A concise definition of what constitutes a justiciable issue or controversy is given by Anderson in his Actions for Declaratory Judgments, Vol. 1, par. 17: 'A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.' See also Tanner v. McKeldin, 202 Md. 569, 576, 577, 97 A.2d 449; Kirkwood v. Provident Savings Bank, 205 Md. 48, 53, 54, 106 A.2d 103.' Id. at 548, 129 A.2d at 849.

A case analogous to the one at bar was before the Supreme Court of Pennsylvania in Whitehall Twp. v. Oswald, 400 Pa. 65, 161 A.2d 348 (1960). The municipality there enacted an ordinance relative to what are commonly called trailers, although some prefer the more euphemious term of mobile homes. When the parties defendant there purchased and occupied such trailers in possible violation of the ordinance the municipality brought a declaratory judgment action to have the ordinance declared valid. In holding that the municipal corporation was 'without standing to invoke the jurisdiction of the court below for the purpose of having the constitutionality of its trailer ordinance adjudicated in a declaratory judgment proceeding,' the Pennsylvania court said:

'The present proceeding is unique in at least one particular for which no parallel is to be found in the annals of Pennsylvania's jurisprudence. The plaintiff township, a political subdivision, seeks, by means of a declaratory judgment petition, a judicial pronouncement upon the constitutionality of its own voluntary enactment. It is as unorthodox as it is extraordinary for a municipality to enact an ordinance and then forthwith supplicate a court's determination of its constitutionality. To construe the Uniform Declaratory Judgments Act as granting such a right to a governmental body would be to encourage legislative irresponsibility and to constitute the courts the legal advisers of municipalities with respect to their legislative enactments. If a question concerning the constitutionality of an ordinance is to be passed upon by a court, it can be done properly only as the sequence of an actual controversy based upon a sufficient allegation by a complainant that he is being harmed or threatened with imminent harm in violation of his constitutionally protected rights.

'The draftsman of the Uniform Declaratory Judgments Act labored under no misapprehension as to the impossible situation that would result if a municipality were permitted to test by a declaratory judgment proceeding the constitutionality of one of its own enactments. Such a right, the statute does not extend to a municipality or other political subdivision clothed with legislative power. The right to question the construction or validity of a municipal ordinance by a declaratory judgment proceeding, in appropriate circumstances, and obtain a declaration of the petitioner's rights, status, or legal obligations under the ordinance, is restricted by ...