Lawrence v. State Dept. of Health

• Decision Date: 03 July 1967
• Docket Number: No. 632,632
• Citation: 247 Md. 367,231 A.2d 46
• Parties: Stanley C. LAWRENCE et al. v. STATE DEPARTMENT OF HEALTH et al.
• Court: Maryland Court of Appeals

Page 367

247 Md. 367

231 A.2d 46

Stanley C. LAWRENCE et al. v. STATE DEPARTMENT OF HEALTH et al.

No. 632.

Court of Appeals of Maryland.

July 3, 1967.

Harry E. Taylor, Jr., Washington, D. C., (Taylor & Waldron, Washington, D. C., on the brief), for appellants.

Louis E. Schmidt, Spec. Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Donald H. Noren, Spec. Atty., Baltimore, on the brief) for State Department of Health & Mental Hygiene, appellee.

Edward O. Clarke, Jr., Baltimore, P. Dennis Belman, Smith, Somerville & Case, Baltimore, and Edward S. Digges, La Plata, on the brief for The Charles County Sanitary District, Inc., for appellee.

Before HAMMOND, C. J., and MARBURY, OPPENHEIMER and BARNES, JJ., and JAMES C. MORTON, Jr., Special Judge.

OPPENHEIMER, Judge.

On August 18, 1966, in the Circuit Court for Charles County, sitting as a court of equity, the appellants filed an amended 'petition to review' a 'decision' of the appellees in respect of the deposit of processed sewage in the Zekiah Swamp in Charles County. The petition alleged that some of the petitioner-appellants are engaged in the business of tonging and catching oysters and crabs in the area of the Swamp, and that others are residents and landowners in the area. On June 20, 1958, it was alleged, the appellee State Board of Health and Mental Hygiene issued a permit, without a hearing, to the other appellee, the Charles County Sanitary District, Inc., to deposit processed sewage in the Swamp. The permit was not used for seven years, and, the appellants alleged, has become void for lack of use. It was further alleged that the Swamp has not the natural flow to provide the contemplated dilution of the processed sewage, which will not be completely destroyed by the original treatment, and that the odor, germs and pollution of the Swamp will adversely affect the rights of the two appellants who own property in the area. It was alleged, further, that the depositing of processed sewage in the Swamp will flow through connected waterways and will, to some extent contaminate and pollute all of the bodies of water through which it flows, will thereby seriously interfere with the use of the Swamp and waterways in connection with the oyster and fishing business and otherwise will be contrary to the public interest. The 'decision' of June 20, 1958, the appellants claimed, was in violation of the Fifth and Fourteenth Amendments to the Federal Constitution and was therefore unlawful. The relief prayed was that the permit granted by the State Department of Health to the County Sanitary District be declared invalid, and that the Sanitary District be enjoined from taking any further action in accordance with the permit.

The State Department of Health answered on September 15, 1966. It denied that the permit had been abandoned, although admitting that construction of the sewage disposal plant had not been commenced because of engineering details; denied that the Swamp and the connecting waterways would be polluted and that the deposit of the processed sewage would depreciate property values and that the oyster industry would be harmed; and denied that the issuance of the permit was unlawful. The answer alleged 'the collection and disposal of treated effluent are within the police powers of the State Department of Health and have a direct relationship to the promotion and safeguarding of public health; and further, the installation of a sewage disposal system is essential, without which the continuous flow of untreated sewage is injurious to public health and constitutes a public menace.' The Sanitary District, in its answer filed the same day, made the same denials as the Department of Health, and alleged that the appellants are guilty of laches, because they have known of the Sanitary District's plan to construct the sewage facilities pursuant to the permit since the permit was issued and have taken no adverse action while the District proceeded to invest large sums of public money in the design and planning of the facilities.

On October 20, 1966, the appellants filed a motion for summary judgment, on the grounds that there was no genuine dispute as to any material fact and that they were entitled to a judgment as a matter of law. No supporting affidavit was filed. Both appellees filed answers to the motion, on November 2, 1966, asserting that there were genuine disputes between the parties as to the material facts and that the appellants' motion was based on alleged facts not appearing of record.

On November 17, 1966, there was a hearing on the appellants' motion and the motion was denied. On the same day, there was a hearing on the merits, at which testimony was taken. At the conclusion of the testimony and arguments, on the same day, the court gave an oral opinion and denied the relief prayed by the appellants and dismissed the petition. We do not have the benefit of knowing what transpired at the hearing on the merits, because no record extract has been furnished, except for Judge Bowie's opinion, which was printed as an appendix to the Sanitary District's brief. That opinion shows, however, that, at the hearing on the merits, the appellants as well as the appellees adduced witnesses who testified as to the disputed factual issues of pollution and the effect of the deposit of the processed sewage. The appeal herein was taken from both the denial of the appellants' motion for summary judgment and the dismissal of the amended petition to review.

On January 25, 1967, the appellees filed in this Court a motion to dismiss the appeal. The motion states that the lower court passed no order concerning the portion of the transcript to be included in the record, that the attorney for the appellants had been notified in writing that the appellees desired the entire record for hearing on the appeal, and that the transcript of the testimony has not been transmitted to the Clerk of the Court as required by Maryland Rule 826 c. Dismissal of the appeal was asked under Rule 835 b (4).

At the oral argument before us, counsel for the appellants stated that the failure to file the transcript of the testimony with the clerk of the lower court for inclusion in the record was not inadvertent but deliberate; that the appellants had abandoned their appeal from the order of the lower court on the merits and were appealing only from the denial of their motion for summary judgment, despite the fact that, on the same day on which that motion had been denied, there had been a full hearing on the merits as a result of which their petition had been dismissed. The provisions of Code (1957) Article 5, Section 6, limiting appeals to this Court to the review of final decisions or orders in the nature of final decrees (except as modified by Section 7), the appellants contend, do not apply in this case, because they did appeal from the final decree...