Ipes v. Board of Fire Com'rs of Baltimore

• Decision Date: 18 January 1961
• Docket Number: No. 90,90
• Citation: 167 A.2d 337,224 Md. 180
• Parties: Anna M. IPES v. BOARD OF FIRE COMMISSIONERS OF BALTIMORE, etc. and Mayor and City Council of Baltimore.
• Court: Maryland Court of Appeals

Page 180

224 Md. 180

167 A.2d 337

Anna M. IPES v. BOARD OF FIRE COMMISSIONERS OF BALTIMORE, etc. and Mayor and City Council of Baltimore.

No. 90.

Court of Appeals of Maryland.

Jan. 18, 1961.

Julius G. Maurer, Baltimore (Sidney Goldscheider, Baltimore, on the brief), for appellant.

Blanche G. Wahl, Asst. City Sol., Baltimore (Harrison L. Winter, City Sol., and Ambrose T. Hartman, Deputy City Sol., Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

A widow, whose petition for a writ of mandamus to require the Board of Fire Commissioners of Baltimore City (Board) to pay her pension benefits for the death of her husband was dismissed, appeals.

Peter H. Ipes, the appellant's husband, was employed as an engineer by the Fire Department of Baltimore City for some years. On June 7, 1949, after becoming ill at his place of employment, he was admitted to a hospital, where he died two days later. Nine days after his death, the appellant made application to the Board for pension benefits under Section 80 of the City's Charter, which was considered and denied on June 30, 1949. Thereafter, during the years 1953 and 1954, she sought reconsideration of her case without success, and, finally, on July 15, 1955, filed her petition for the issuance of a writ of mandamus. The appellees answered on July 28, 1955, and it was not until February 1, 1960, that the matter was submitted to the trial court for determination, without the aid of a jury.

There is one crucial factual controversy between the parties: the appellant claims her husband's death was due to a heat stroke while working under severe strain in a very high temperature, while the appellees contend that the deceased suffered a sudden rupture of a large blood vessel in the brain, at a time when he was performing his routine duties. The cause of his death is a vital factor as to whether or not the appellant is, or ever was, entitled to a pension under Section 80.

At the time of the hearing below, Dr. Lloyd, who was the Fire Department's physician at the time of the death of the appellant's deceased, and who had treated his immediately after he had been admitted to the hospital in June of 1949, had died. One member of the Board, as constituted at the time of the hearing before it, had also passed away, and the personnel employed by the Board, including its Executive Secretary, had changed since the initial hearing.

Although the defendants made no mention of laches in their answer, the trial judge, of his own volition, decided the appellant had been guilty of long delay, which constituted laches, and dismissed her petition. We must, therefore, answer this question: May the trial court in a mandamus proceeding raise the question of laches, sua sponte, when the defendants fail to plead the defense in their answer?

Before resolving this question, we shall consider the appellees' motion to dismiss the appeal. The appellant, inadvertently, omitted to have printed in her record extract the trial judge's opinion; and also failed to have any of the evidence included therein. The appellees moved for a dismissal of the appeal under Maryland Rules 828 b, 1(a) and (b). In her reply brief, the appellant supplied the inadvertently omitted copy of the trial court's opinion, and it contains a sufficient statement of his findings of fact for us to determine the issue between the parties, as it is, for the main part, one of law and not of fact. The motion to dismiss will be denied. Rule 828 i.

In Maryland, mandamus is a writ in the nature of a prerogative writ, and it is an extraordinary remedy. The writ is issued by the law courts. Code (1957), Article 60, Section 1. It is a remedy that is based upon reasons of justice and public policy to preserve peace, order and good government, and, although the writ is issued by the law courts, many courts, including this one, and text-writers have stated that mandamus may be compared to a bill in equity for specific performance. High, Extraordinary Legal Remedies (3rd Ed.), Section 1; Booze v. Humbird, 27 Md. 1, 5; 2 Poe, Pleading and Practice at Law (3rd Ed.) p709; Town of District Heights v. County Com'rs, 210 Md. 142, 146, 122 A.2d 489. It is not a writ of right, nor is it granted as of course, but only in the sound legal discretion of the judge who directs the issuance thereof. Weber v. Zimmerman, 23 Md. 45, 53; Kinlein v. M. & C. C. of Balt., 118 Md. 576, 581, 85 A. 679. Cf. Whittle v. Munshower, 221 Md. 258, 260, 155 A.2d 670. And, in approaching the question concerning the issuance, vel non, of the writ, the courts invoke equitable principles to reach the real merits of the controversy between the parties. Ghingher v. Fanseen, 166 Md. 519, 526, 172 A. 75; United States ex rel. Arant v. Lane, 249 U.S. 367, 371, 39 S.Ct. 293, 63 L.Ed. 650; 55 C.J.S. Mandamus § 2(b); Nicholas v. United States, 257 U.S. 71, 75, 42 S.Ct. 7, 66 L.Ed. 133; United States ex rel. Greathouse v. Dern, 289 U.S. 352, 53 S.Ct. 614, 77 L.Ed. 1250.

That laches is a proper ground for refusing to issue a writ of mandamus seems to be a proposition of almost universal recognition. George's Creek Coal & Iron Co. v. Allegany County Com'rs, 59 Md. 255, 263; Duffey v. Rickard, 194 Md. 228, 71 A.2d 41; 55 C.J.S. Mandamus § 244; High, op. cit., p. 38; United States ex rel. Arant v. Lane, supra, 249 U.S. at page 371, 39 S.Ct. at page 294; Nicholas v. United States, supra. And it has been recognized in many cases that in equity the court may in a proper case on its own motion refuse to grant relief to a complainant, who, on the final hearing, appears to have been guilty of laches, although that defense was not interposed by the defendant. Syester v. Brewer, 27 Md. 288, 319; Warburton v. Davis, 123 Md. 225, 231, 91 A. 163. Also, see the long list of cases, collected in an annotation in 173 A.L.R. beginning on page 337, and compare Rettaliata v. Sullivan, 208 Md. 617, 621, 119 A.2d 420, and Duffey v. Rickard, supra. But, notwithstanding these authorities, the appellant contends that Maryland Rule 1240 b(2), which states that, 'an answer to a petition for a writ of mandamus shall fully and specifically set forth all defenses upon which the defendant intends to rely * * *' precluded the court from denying her petition on the ground of laches, since no mention thereof was made in the defendants' answer.

The provision quoted from Rule 1240 b(2) seems to have first come into the law of this State (in slightly different terms) by Section 3 of Chapter 285 of the Acts of 1858 (presently Section 3 of Article 60 of the Code [1957]). At common law the pleading and practice in mandamus proceedings were very tedious and technical. Upon the filing of a petition which set forth sufficient facts, the court directed the writ to issue. This writ commanded the respondent to do the thing ordered, or to show cause, by a time certain, why he should not be required to do it. This was termed an alternative writ of mandamus; and, if the respondent wished to contest the matter, he either moved to quash the writ (for defects either of form or substance), or replied to it. This reply was called a 'return.' Upon the sufficiency of this return, the relator's right to the writ depended. In this return, the respondent was obliged to set forth with great care, certainty and precision the facts upon which he relied to defeat the petition, and on the case thus made the court decided the matter. The petitioner, or relator, was not allowed to traverse the facts stated in the return, and, if matters stated therein were not true, the only remedy of the petitioner was an action on the case for a false return; and then, after a verdict and judgment for him in such case, the application for the mandamus could be renewed, and the writ was generally issued. Under such an unusual and technical procedure, delays and difficulties were inevitable. To alleviate some of these, the Statute of 9 Anne, Chapter 20, was...