Montgomery County v. Maryland-Washington Metropolitan Dist.

• Decision Date: 07 November 1952
• Docket Number: No. 5,MARYLAND-WASHINGTON,5
• Citation: 200 Md. 525,92 A.2d 350
• Parties: MONTGOMERY COUNTY v.METROPOLITAN DIST. et al.
• Court: Maryland Court of Appeals

Page 525

200 Md. 525

92 A.2d 350

MONTGOMERY COUNTY v. MARYLAND-WASHINGTON METROPOLITAN DIST. et al.

No. 5.

Court of Appeals of Maryland.

Nov. 7, 1952.

HAMMOND, Judge.

In 1951, Montgomery County, the appellant, filed its Bill of Complaint in the Circuit Court for that County against Maryland-Washington Metropolitan District and Maryland-National Capital Park and Planning Commission, and the individual members of the Commission, appellees, seeking to vacate and set aside a conveyance the County had made to the Commission in 1944 on the ground that the 'purported transfer' was unlawful, void and beyond the power of the County Commissioners of Montgomery County to make. Other relief asked in the Bill was the enjoining of the defendants from selling or transferring the property involved, or any interest in it, to any one other than Montgomery County, and the further injunction forbidding the defendants from taking or holding possession of the property until the determination of the cause. Filed with the Bill was a Petition asking for a temporary injunction. On the Bill and its accompanying Exhibits and the Petition, it was ordered on December 21, 1951, by the court that the Writ of Injunction be issued, restraining the transfer of the property or any interest therein to any one other than Montgomery County. The Order contained this further statement: 'The Plaintiff, being a municipal corporation, shall not be required to file a bond for the issuance of this Writ of Injunction.' On February 15, 1952, the court passed its Order that Montgomery County file an injunction bond in form and substance and with security to be approved by the court, in the amount of $100,000, or suffer the Injunction of December 21 to be dissolved. The bond was not filed, and on March 3, 1952, the court dissolved the Injunction.

The appeal here is from the Orders of February 15 and March 3 on the sole ground that, as a matter of law, a bond cannot be required as condition to the granting of an Injunction of a County, since it is a political subdivision of a sovereign State.

The appellees have moved to dismiss the appeal on the grounds that the requirement of a bond is in the discretion of the Chancellor, Section 231 of Article 16 of the Code 1951 Ed. and unless abuse of discretion or lack of jurisdiction is alleged and shown, no appeal lies under Section 35 of Article 5 of the Code (1951 Ed.). The appellees say this Section does not apply 'since the Chancellor did not refuse to grant the injunction nor did he impose improper conditions on its issuance'. In further support of the motion to dismiss, it is said that the appeal is not properly granted by Section 31 of Article 5 either, since 'said injunction was not dissolved following a hearing on the merits of the complaint and the pleadings thereto but in the exercise of the Chancellor's discretion to require security for the continuance of the injunction'.

We find that the motion to dismiss on the grounds urged is not well taken. Under Section 35 of Article 5, an appeal lies from a refusal to grant an injunction. An Order purporting to grant an injunction, but which attaches impossible or illegal conditions rendering the grant nugatory is appealable under Section 35. The Court so held in Moreland, Inc., v. Moreland, 175 Md. 145, 199 A. 871. Under Section 31 of the Appeal Article of the Code, an appeal lies from a dissolution of an injunction and, no less, will lie from the dissolution for failure to obey a condition set by the court. Buckner v. Cronhardt, 132 Md. 612 at page 617, 104 A. 169, and see also Conner v. Groh, 90 Md. 674 at page 680, 45 A. 1024.

Although the appeal will not be dismissed on the grounds urged by the appellee, it is in order to see if it should be dismissed for other reasons.

As presented by the record, the Briefs, and the oral argument, nothing was before us for decision in this cause but this narrow question, namely, if an injunction is otherwise properly issuable, can the court, as a matter of right, require a County to furnish an injunction bond? We are not asked, nor are we given the facts and the law, to decide over-all whether in this case, the preliminary injunction should or should not have been granted or continued. We know nothing of the merits. We are asked, in effect, for an advisory opinion.

More important, however, are the events which transpired in the case after the appeal was taken. The defendant had demurred to the bill and apparently the Catholic Archbishop of Washington had been added as a defendant. The precise sequence of events has not been made known to us, but, at the hearing, there was presented by counsel for the appellees a certified copy of an Order of the Circuit Court for Montgomery County entered in this cause on September 29, 1952, wherein summary judgment on the pleadings was entered for the Archbishop and the demurrer of the other defendants--appellees here--to the Second Amended Bill of Complaint was sustained, and the Bill dismissed. It is apparent, then, that the question is moot, as of this moment. In the present state of facts, there is nothing on which an injunction could be predicated with or without a bond. We were told at the hearing that an appeal had been noted from the Order of September 29, 1952. It may never be perfected, or if it is, the Order may be affirmed. If the appeal is perfected and after argument in this Court, the Order should be reversed, in all reasonable probability, a decision here would make a final determination of the rights and obligations of the respective parties which would obviate the necessity for any injunction. In the unlikely event that further proceedings should be ordered by this Court, after argument here, the opinion then could decide whether an injunction should issue under the circumstances at that time, and if so, on what terms. Section 32 of Article 5, providing that, on appeal from a final decree or order, all previous orders in the cause shall be open for revision, unless an appeal under Section 31 shall have been previously taken from such order, would not, as we see it, apply where the appeal from the previous Order had not been decided but had been dismissed.

It would seem inappropriate, if indeed not entirely meaningless, for us to pass on a present abstraction on the possibility that it will in the future become concrete. As Mr. Justice Holmes said for the Court in Barker Painting Co. v. Local 734, etc., 281 U.S. 462, 50 S.Ct. 356, 74 L.Ed. 967, in a suit by an employer against a union to require painters to return to work under a contract when, by the time the appeal was heard, they had so returned and substantially completed the contract:

'Both sides desired that the Court should go farther afield. But a Court does all that its duty compels when it confines itself to the controversy before it. It cannot be required to go into general propositions or prophetic statements of how it is likely to act upon other possible or even probable issues that have not yet arisen.'

In Public Service Comm. v. Chesapeake & Potomac Telephone Co., 147 Md. 279, 128 A. 39, an injunction had been granted the Telephone Company restraining the effect of an order by the Public Service Commission which preserved existing telephone rates pending in an investigation. Judge Bond said:

'* * * It was proposed that the new rates should go into effect on January 1, 1925, and the case was heard out of place, in December, in an effort to expedite the final determination. The court had not been able, in consultation, to arrive at an greement on the decision when it was informed that the Commission's investigation had been concluded and its final order passed, so that the interim order with which the court was concerned had been superseded. A copy of the final order has now been furnished to the court.'

He went on to review cases in this...