Tyler v. Baltimore County

• Decision Date: 08 December 1969
• Docket Number: No. 217,217
• Citation: 259 A.2d 307,256 Md. 64
• Parties: Robb TYLER v. BALTIMORE COUNTY, Maryland, et al.
• Court: Maryland Court of Appeals

Page 64

256 Md. 64

259 A.2d 307

Robb TYLER v. BALTIMORE COUNTY, Maryland, et al.

No. 217.

Court of Appeals of Maryland.

Dec. 8, 1969.

Richard A. Reid, Towson (Royston, Mueller, Thomas & McLean, Towson, on the brief) for appellant.

Thomas J. Aversa, Jr. and Harry S. Shapiro, Asst. County Solicitors (R. Bruce Alderman, County Solicitor, Towson), on the brief, for appellees.

Before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

HAMMOND, Chief Judge.

In Tyler v. Baltimore County, 251 Md. 420, 247 A.2d 704, Tyler, who is also the present appellant, sought to reverse the refusal of the trial court to grant him the writ of mandamus to compel officials of Baltimore County to approve his application to operate a sanitary landfill on a site in the lower end of the County known as the Norris Farm, and to issue him a permit for such an operation. We remanded that case without affirmance or reversal to permit the lower court to determine whether Norris Lane leading to the site was a public or a private road, holding that if it was a public road the County could not, as one of the prerequisites to his receiving the permit, compel Tyler to widen and pave it at his expense.

On Wednesday May 28, 1969, Judge Jenifer found that Norris Lane was a public road and the next day ordered the Director of the County Department of Public Works and the County Health Officer to approve Tyler's application, and ordered the Director of the Department of Permits and Licenses and Baltimore County to issue the permit sought by the application.

On Monday June 2, Tyler sought to pickup the permit. The County refused to issue it. Later that day Tyler's lawyer wrote the County Solicitor that the County had no right to withhold the permit and that he and Tyler would appear on Wednesday at 10:00 a. m. to receive the permit. The letter warned the Solicitor that if the County again refused to issue the permit the appropriate County officials would be cited for contempt. On Tuesday the defendants moved for a new trial or reargument and further moved that since the order of the previous Thursday was a judgment nisi the order of Thursday, May 29, should be stayed until final adjudication and final judgment. On Wednesday morning, June 4, the County refused to issue the permit, and that afternoon the County Council met in emergency session and passed Bill 103, which provided in Section 1(a) that 'No permit for the disposal of refuse * * * shall be issued for a period of 90 days * * *,' and in Section 1(b) that:

'Any such permit which has been issued but not yet utilized shall be and it is hereby suspended for a period of 90 days after this section is enacted.'

The same Wednesday Tyler petitioned the court to find in contempt the Director of Public Works, the Health officer and the Director of the Department of Permits and Licenses for refusing to issue the permit, and to find the County Executive, Dale Anderson, in contempt for having 'counselled, instructed or directed' the other officials not to comply with the wirts of mandamus. The next day Tyler petitioned the court also to find in contempt the five councilmen who passed Bill 103 for abusing their delegated legislative powers in that the bill 'was passed solely for the purpose of frustrating the Order * * * dated May 29, 1969, and preventing compliance with the writs of mandamus issued thereon * * *.'

On July 9, Judge Jenifer granted the motions for summary judgment of those sought to be held in contempt and dismissed Tyler's two petitions opinion in the part of his opinion here pertinent that:

'It is admitted by the pleadings in this case that when the plaintiff or his counsel went to the various County Officials to obtain their permit they were referred to the Solicitor's Office. The Deputy County Solicitor informed the plaintiff's counsel that the permit would not be issued and he was so advising the County officials.

For the reasons I have hereinbefore stated there is no doubt under the pleadings that all of the individual County Officials were relying upon the advice received from the Solicitor's Office.

'Now, is it true as has been cited by the plaintiff, and as was mentioned in the case of Weaver v. State, 224 Md. 640, (224 A.2d 684), that advice of counsel is ordinarily and generally no justification for failure to comply with a judicial command. The plaintiff also urges that the advice of the Solicitor is not binding on any County Official. However, when you have a Charter which tells a County Official that the solicitor is his legal adviser, it would be folly for him not to follow that advice. But what is more important this is a contempt proceeding against these individual County Officials. In other words, the plaintiff would have me find that these officials, wantonly and willfully, without legal justification of any nature or kind, disregarded completely and failed and refused to honor a lawful Writ of this Court. The justification for which the County Solicitors gave for refusal to comply with the Writ immediately was because of the pendency of a motion for a new trial of re-argument, and this involved an interpretation of the various Maryland Rules, namely 564, 567 and the B.E. Rules pertaining to Mandamus. Whether or not the Solicitor was correct in his interpretation of those rules does not necessarily compel a decision by this Court with respect thereto. Assuming, without deciding, for the purposes of this case that the order of May 29th, 1969, was a final order and not an order nisi as contended by the County, the failure to comply extended over the period of less than three business days, namely Thursday, May 29th, Monday, June 2nd and Tuesday, June 3rd.

When the Council on June 4th, passed Bill No. 103, all of the individual County Officials were precluded and prevented from acting further with respect to the issuance of the permit requested. If they did so after that date they would be in direct violation of an ordinance passed by the legislative body.

'I am unable to find under these circumstances that these individual County Officals were contemptuous of this Court, but assuming that they were, under the legislative enactment which is now valid until declared invalid by a direct attack thereon, this Court is powerless to direct the issuance of the permit requested. Plaintiff's counsel urges the Court that, even at this time, it should require Mr. Kaltenbach as Director of Public Works and Dr. Roop as County Health Officer to approve the application for the permit under the provisions of Section 13-41 or 13-42 of the County Code. Such approval would be futile since that action is merely preliminary to the actual issuance of the permit. Approval without issuance is of no value to the plaintiff. Holding in contempt would likewise be of no benefit to the plaintiff in view of the subsisting and existing County ordinance.'

We were told at the argument that after Judge Raine later refused to discipline Tyler for using the Norris Farm landfill site without a permit, the County publicly agreed that it would not interfere with its use by him and that he could continue to use it without interference by the County, at least until a new ordinance regulating sanitary landfills becomes operative in late November when the...