Prince George's County v. Chillum-Adelphi Volunteer Fire Dept., Inc.

• Decision Date: 27 June 1975
• Docket Number: CHILLUM-ADELPHI,No. 215,215
• Citation: 340 A.2d 265,275 Md. 374
• Parties: PRINCE GEORGE'S COUNTY, Maryland v.VOLUMTEER FIRE DEPARTMENT, INC., et al.
• Court: Maryland Court of Appeals

Page 374

275 Md. 374

340 A.2d 265

PRINCE GEORGE'S COUNTY, Maryland v. CHILLUM-ADELPHI VOLUMTEER FIRE DEPARTMENT, INC., et al.

No. 215.

Court of Appeals of Maryland.

June 27, 1975.

Michael O. Connaughton, Assoc. County Atty., Upper Marlboro (Joseph S. Casula, County Atty., Ellis J. Koch and Barbara Lampe, Assoc. County Attys., Upper Marlboro, on the brief), for appellant.

William L. Kaplan, Langley Park (Kaplan, Smith, Joseph, Greenwald & Laake, Langley Park, on the brief), for appellees.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

SMITH, Judge.

As every resident of this State who lives outside of the urban areas of the State knows, volunteer firemen perform an important and necessary service. Without them property in such areas would be unprotected from the ravages of fire and in extinguishing fires people would be reduced to use of the archaic methods of a bygone era.

The population of Prince George's County has grown from 60,095 in 1930 to 661,192 in 1970. The 'growing pains' resulting from that increase in population have been reflected in more and larger volunteer fire companies and controversy between those fire companies and the County government relative to funds. This case and its predecessor, Chillum-Adelphi v. Pr. George's Co., 269 Md. 486, 307 A.2d 481 (1973), result from those controversies.

By Chapter 628 of the Acts of 1963, § 32-17 of the Code of Public Local Laws of Prince George's County was enacted declaring '(a)ll existing non-profit incorporated Volunteer Fire Companies . . . operating in Prince George's County . . . to be an instrumentality of Prince George's County and/or the municipality in which they operate . . ..' ¹ Disputes relative to the interpretation of this law produced suits for declaratory relief on behalf of a number of the volunteer fire companies. Prince George's County (the County) was named defendant. When the County Charter (the Charter) became effective on February 8, 1971, certain provisions in it further fanned the flames of controversy as the result of which yet other questions were brought to the attention of the court. In all, four suits were filed with all of the volunteer fire companies of Prince George's County involved as parties.

In Chillum-Adelphi we invoked Maryland Rule 871 a and remanded the case for a determination of the constitutional issues presented. On the remand the trial court declared § 32-17 'to be null and void, being contrary to the Constitutions of Maryland and the United States of America . . ..' In all other respects it 'ratified and incorporated by reference' in its decree 'the declaratory opinions and orders of th(at) Court filed in th(o)se cases on April 14, 1972 and November 3, 1972 . . ..' It directed the payment of a substantial fee to counsel for the fire companies. The County and the fire companies appealed.

We were advised at argument of this appeal that the County and the fire companies reached an agreement by which the County no longer claims the assets of the fire companies and the matter of counsel fees has been resolved to the satisfaction of the parties so that those two issues are no longer before us.

The parties and the trial judge (McCullough, J.) formulated the issues to be decided by the trial court, all of which were numbered. In the earlier appeal we had before us issues 1, 3, 8, 9, 13, 19, and 22. The parties apparently found no fault with the decision of the trial judge on the remaining issues. The briefs in this appeal, although not designating the issues as precisely as they were designated in the former appeal, stated that the same points were before us in addition to the issue pertaining to attorney's fees. Issue 1 concerned the claim of the County that under the provisions of § 32-17 it was vested with title to all of the assets of the volunteer fire companies. We shall set forth the remaining issues as they are discussed.

Issues 3, 9, 13, and 22

Issues 3, 9, 13, and 22 are interrelated. As framed by the parties, with the answers stated in the court's decree, they are as follows:

'ISSUE III: DOES NOT THE CHARTER'S SCHEDULE OF LEGISLATION IN PARAGRAPH 14 THEREOF CREATE IN PRINCE GEORGE'S COUNTY TWO FIRE DEPARTMENTS, i. e., A COUNTY FIRE DEPARTMENT AND THE VOLUNTEER FIRE SERVICE EMBODIED BY THE VARIOUS INDEPENDENT PRIVATE CORPORATIONS?'

'Issue Number III: The Charter of Prince George's County does not create a second firefighting system in Prince George's County.' (Emphasis added.)

'ISSUE IX: ARE THE PLAINTIFFS IN THIS CASE, i. e., THE INDEPENDENT VOLUNTEER FIRE DEPARTMENTS OF PRINCE GEORGE'S COUNTY, STILL INDEPENDENT CORPORATIONS

SOLELY RESPONSIBLE FOR THEIR OWN DAY-TO-DAY OPERATION OF THEIR RESPECTIVE DEPARTMENTS: ARE THEY, IN ADDITION, RESPONSIBLE FOR THE SUPERVISION AND CONTROL OF SAID PERSONNEL, AND DO THEY HAVE FIRE GROUND CONTROL: OR, DOES THE COUNTY HAVE THE RIGHT TO PROMULGATE AND ENFORCE RULES AND REGULATIONS BINDING UPON THE UNPAID VOLUNTEER PERSONNEL OF THE PLAINTIFF FIRE COMPANIES, AND DOES THE COUNTY HAVE THE RIGHT TO DIRECT, CONTROL AND SUPERVISE THE PLAINTIFF FIRE COMPANIES' UNPAID VOLUNTEER PERSONNEL, OFFICER OR OTHERWISE, IN THE PERFORMANCE OF THEIR DUTIES AS VOLUNTEER FIREMEN, TO SUCH A DEGREE THAT THE OPERATION OF THE PLAINTIFF FIRE DEPARTMENTS, THEIR PERSONNEL, AND FIRE GROUND CONTROL ARE SUBJECT TO THE DIRECTION AND CONTROL OF PRINCE GEORGE'S COUNTY AND/OR ITS FIRE CHIEF?'

'Issue Number IX: The independent volunteer fire departments are subject to the direction and control of Prince George's County and/or its fire chief.'

'ISSUE XIII: ARE THE PLAINTIFF FIRE COMPANIES AGENCIES OF THE COUNTY AS DEFINED BY SECTION 1017(M) OF THE PRINCE GEORGE'S COUNTY CHARTER?'

'Issue Number XIII: The Plaintiff fire companies are agencies of the County government.'

'ISSUE XXII: IS THE COUNTY EMPOWERED TO INSPECT, AUDIT, AND COPY ALL THE ACCOUNTS, RECORDS AND BOOKS OF THE PLAINTIFF FIRE COMPANIES?'

'ISSUE XXII: Prince George's County is empowered to inspect, audit and copy all of the accounts, records and books of the plaintiff fire companies having to do with the receipt and disbursement of County budgeted funds only.'

These issues might well be reframed:

a. Does Prince George's County have the power to control the activities of the vounteer fire companies, and, if so, to what extent?

b. Does Prince George's County have the right to audit the books of the volunteer fire companies, and, if so, to what extent?

In formulating answers to questions such as those posed here it must be remembered that even in declaratory judgment actions authorized by what is now Code (1974) §§ 3-401 to 3-415 of the Courts and Judicial Proceedings Article (formerly Code (1957) Art. 31A) courts will not answer 'purely theoretical questions or questions that may never arise.' Liss v. Goodman, 224 Md. 173, 177, 167 A.2d 123, 125 (1961). See also Pr. George's Co. v. Bd. of Trustees, 269 Md. 9, 12, 304 A.2d 228 (1973).

a. Control

The current controversy revolves around the rights and obligations of the County and the fire companies as the result of the adoption of the Charter. In the schedule of legislation adopted with the Charter § 14 provided for 'a Fire Department headed by a Fire Chief.' The department so provided was to 'be responsible for fire prevention, fire suppression, fire and rescue communications, research and training activities, and coordination of the volunteer fire companies.' The Charter further provided for a fire commission 'composed of nine members elected by the volunteer fire companies of Prince George's County,' which commission was to 'review the financial needs and requests for public funds of each volunteer fire company' and to 'formulate annually one capital budget, one capital improvement program, and one current expense budget for all volunteer fire companies with respect to the expenditure of public funds, and (to) submit said budgets and program, together with appropriate justification, to the County Executive in accordance with the provisions of (the) Charter.'

One thing upon which the parties here can agree is that disputes arose as to control, as the fire companies put it in their brief, 'both operational, budgetary and administrative.' Section 32-18 of the Prince George's County Code, as enacted by Chapter 437 of the Acts of 1965, authorized a fire tax of 4 cents upon each $100 of assessed valuation to be levied by the county commissioners (except for the area of the County within the limits of the City of Takoma Park), the proceeds of which were 'to be expended by such fire companies for the purpose of providing that a minimum of two (2) paid firemen in each fire station (should) be employed on a full-time basis at salaries to be determined by the Board of County Commissioners.' Chapter 745 of the Acts of 1966 repealed § 32-18 and enacted a new subsection in its stead. It provided for a fire tax in the amount of 10 cents upon each $100 to be appropriated 'for the employment of at least two additional full-time paid firemen in each fire station validly in existence in Prince George's County, the acquisition or leasing of land or facilities for new fire house sites and training facilities, and to supplement financial needs of fire companies based on budget review.' The section as then enacted further provided for these '(f) ull-time paid firemen (to) be under the direct supervision and control of the individual fire company chief during working hours.' Peripherally, there are conflicting contentions here as to whether § 32-18 remains viable after the adoption of the Charter, a contention which we need not answer for the purposes of this case.

The County contends that the volunteer fire companies 'are instrumentalities of the County such that the fire chief of (the) County . . . has the power and authority to direct and control the day to day activities and internal operations of the volunteer fire companies.' This argument is based on the fact that...