Liss v. Goodman

• Decision Date: 09 December 1960
• Docket Number: No. 259,259
• Citation: 224 Md. 173,167 A.2d 123
• Parties: Solomon LISS et al. v. Philip H. GOODMAN et al., constituting the Board of Estimates of Baltimore City.
• Court: Maryland Court of Appeals

Page 173

224 Md. 173

167 A.2d 123

Solomon LISS et al. v. Philip H. GOODMAN et al., constituting the Board of

Estimates of Baltimore City.

No. 259.

Court of Appeals of Maryland.

Dec. 9, 1960.

Opinion Jan. 17, 1961.

Solomon Liss, Baltimore, for appellants.

Harrison L. Winter, City Solicitor and Morton L. Goldner, Asst. City Solicitor, Baltimore, for appellees.

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

PER CURIAM.

Counsel for the appellants and appellees having requested that this case be determined by a per curiam order as soon as practicable and having agreed at the argument in this Court that no claim has been asserted that the City Council has any power to reject those provisions of the Draft Ordinance of Estimates pertaining to items fixed by law or items inserted to pay interest and principal on the municipal debt and that Paragraph 2 of the Order of the Superior Court of Baltimore City does not imply anything to the contrary, it is this 9th day of December, 1960.

Ordered by the Court of Appeals of Maryland, for reasons to be stated in an opinion to be filed later, that the Order of the Superior Court of Baltimore City herein be and it is hereby affirmed (subject to the construction above stated); the costs of this appeal to be paid by the Board of Estimates of Baltimore City.

Opinion.

HENDERSON, Judge.

The appellants, members of the City Council of Baltimore, filed a petition for declaratory judgment praying the court to answer certain questions as to the relative powers of the Board of Estimates and the City Council in budgetary matters. The Board of Estimates, through the City Solicitor, filed a demurrer, which was overruled, and an answer. The facts were stipulated. From an order making certain declarations contrary to their contentions, the petitioners appealed here. We advanced the case for argument and at the request of all parties passed a per curiam order determining the issues presented. We affirmed the order appealed from, after deleting the parenthetical clause at the end of the second paragraph of the order in the interest of clarity. We now state the reasons for our action.

The appellees raise a procedural question as to the jurisdiction of the court below to enter a declaratory decree. Code (1957), Art. 31A, sec. 6 provides, in part, that '[r]elief by declaratory judgment or decree may be granted in all civil cases in which an actual controversy exists between contending parties, or in which the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or when in any such case the court is satisfied that a party asserts a legal relation, status right, or privilege in which he has a concrete interest and that there is a challenge or denial of such asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment or decree shall serve to terminate the uncertainty or controversy giving rise to the proceedings.' The appellees contend that there is no 'actual controversy' between the parties, that there is no indication of 'imminent and inevitable litigation', and that the petitioners have no 'concrete interest' in the rights or privileges they assert.

On order to understand these contentions it is necessary to advert to the facts. Section 30 of the Charter and Public Local Laws of Baltimore City (1949 ed.) provides for the preparation and enactment of the annual budget for Baltimore City, known as the Ordinance of Estimates. Under Section 170 of the Charter, the City's fiscal year is the calendar year. Under Section 30 the Board of Estimates is directed to prepare certain lists of appropriations between October 1 and November 1 of each year, to combine them in a proposed ordinance, and to certify them and cause them to be published and, thereafter, transmitted to the City Council, convened in special session. Said Section makes it the duty of the City Council to hold daily sessions until the ordinance is passed. While the Section authorizes the City Council to reduce the amounts of the items of appropriations fixed by the Board, except items fixed by law and items necessary to service the public debt, it expressly prohibits the City Council from exercising the power to increase the amounts fixed by the Board or to insert new items of appropriation in the ordinance. Chafing under the restrictions imposed by this form of executive budget, the members of the City Council have repeatedly in past years sought means whereby they might bring pressure upon the Board to supplement or amend the ordinance after it had been submitted to them.

In December, 1959, upon request of a group of councilmen, the present City Solicitor, relying upon earlier rulings of former City Solicitors, ruled that the City Council could not reject the ordinance, or return it to the Board of Estimates after it had been submitted to the Council and that the Board of Estimates could not recall the ordinance and supplement or amend it. By resolution passed by unanimous vote on January 18, 1960, the City Council resolved that the 'members of this body, recognizing the existence of the said question and its perennial recurrence, * * * agree that a declaratory judgment be sought * * *.' Suit was duly filed, and the order appealed from was passed on November 9, 1960. At that time and indeed at the time of the argument in this Court on December 8, 1960, the ordinance had not been submitted to the Council.

It seems clear that the question presented, involving as it does the respective powers of two branches or agencies of the City government, is of some public concern. Under Section 15 of the Charter the City Council is the legislative department of the City government while under Section 30 the Board of Estimates is the number 1 executive department or board, consisting of the Mayor, City Solicitor, Comptroller, President of the City Council and Director of Public Works. It can hardly be doubted that each of these bodies has a legitimate interest in determining the extent of their respective powers. We think that interest is sufficiently 'concrete'. It is true that at the time the declaration was sought and made, it was not certain that the ordinance, when submitted, would be rejected or returned by the Council, even if it had the power to do so. But the power is claimed, and in the light of the past history we think it is a fair assumption that the power would be exercised, if found to exist. Certainly it cannot be assumed that the Council's resolution was frivolous or not adopted in good faith.

This Court has stated that the declaratory procedure should not be used to decide purely theoretical questions or questions that may never arise. See Tanner v. McKeldin, 202 Md. 569, 97 A.2d 449, and Kirkwood v. Provident Savings Bank, 205 Md....