Walker v. Board of County Com'rs of Talbot County

• Decision Date: 27 July 1955
• Docket Number: No. 180,180
• Parties: Alonsita WALKER et al. v. BOARD OF COUNTY COMMISSIONERS OF TALBOT COUNTY et al.
• Court: Maryland Court of Appeals

Page 72

208 Md. 72

116 A.2d 393

Alonsita WALKER et al. v. BOARD OF COUNTY COMMISSIONERS OF TALBOT COUNTY et al.

No. 180.

Court of Appeals of Maryland.

July 27, 1955.

Hyman A. Pressman, Baltimore, and Henry H. Balch, Easton, for appellants.

T. Hughlett Henry, Jr., Easton (Henry & Henry, Z. H. Stafford and Charles E. Wheeler, Easton, on the brief), for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from a decree denying the relief prayed in plaintiffs' bill of complaint.

Pursuant to Code 1951, Article 66B, the County Commissioners of Talbot County (the Commissioners), on May 16, 1953, adopted a zoning ordinance (the Zoning Ordinance). The plaintiffs, appellants here, five property owners, as property owners filed an amended bill of complaint on February 21, 1955, against the Commissioners, the Planning and Zoning Commission (the Commission), and the Appeal Board for the Commission (Appeal Board), asking for a declaratory decree declaring the aforesaid Zoning Ordinance invalid and unconstitutional in its entirety; in the alternative that the Zoning Ordinance be declared invalid and unconstitutional insofar as it affects the property of the plaintiffs; that the defendants be enjoined from enforcing said Zoning Ordinance in the use of their properties for industrial purposes; and for other and further relief.

The decree declared that the Zoning Ordinance was valid, constitutional and in full force and effect; that the Commission is legally constituted and entitled to function under the provisions of Code 1951, Article 66B, supra; that the Appeal Board was legally created and is legally constituted and entitled to function as such under the provisions of Article 66B, supra; and requiring appellants to pay the costs of the proceedings. From that decree appellants appeal here.

The bill of complaint alleges and the appellants claim that the Commission was not legally created. Article 66B, supra, Section 12, provides in part: '(Personnel of the Commission.) The Commission shall consist of five members, namely, a member of the Council and four persons who shall be appointed by the mayor, and confirmed by the council, if the mayor be an elective officer, otherwise by such officer as council may in the ordinance creating the Commission designate as the appointing power. All members of the Commission shall serve as such without compensation. The term of the ex-officio member shall correspond to his official tenure. The term of each member shall be five years or until his successor takes office, except that the respective terms of the five members first appointed shall be one, two, three, four, and five years.'

By Article 66B, supra, Section 10, 'mayor' is defined as 'the chief executive of the political subdivision, whether the official designation of his office be Mayor, City Manager or otherwise.' 'Council' is defined as 'the chief legislative body of the political subdivision.' On August 14, 1951, the Commissioners unanimously passed Planning and Zoning Ordinance No. 1 creating the Commission and appointed five members: One (Mr. Norman W. Harrington) for a term of one year; one for a term of two years; one for a term of three years; one for a term of four years; and one for a term of five years. They failed to name a member of the Commissioners to this Commission. It is conceded by the appellees that the Commission was originally improperly constituted. However, failure to appoint a proper Commission would not invalidate the Ordinance as a whole. Cf. Bostock v. Sams, 95 Md. 400, 418, 52 A. 665, 59 L.R.A. 282. Insofar as the Ordinance authorized the appointment of a Commission it could take effect at once, subject to the filling of vacancies by subsequent action of the 'Mayor' and 'Council'. On February 13, 1952, Mr. Harrington, one of the original members of the Commission, upon entering military service was forced to resign. At that time it was discovered that a member of the Commissioners was not included on the Commission. The Commissioners then unanimously appointed Mr. Omer Dulin, the President of the Commissioners, to the Commission. Mr. Dulin was appointed to fill the unexpired term of Mr. Harrington, whose term being for one year, expired on August 14, 1952. Mr. Dulin served on the Commission as a hold-over member until his term expired as County Commissioner in 1954, when he was again re-elected a County Commissioner. He has continued to serve as a hold-over member up to the time of the hearing below. His term from his original appointment on February 13, 1952, has in fact corresponded with his official term as a member of the Commissioners since that time. In Benson v. Mellor, 152 Md. 481, 137 A. 294, a case involving the tenure of office of a County Commissioner, it was held that in the absence of a contrary intention incumbents in office rightfully hold over and perform the duties of their offices until the qualification of their successors, although there may be no express provision in the law for it. We must, therefore, hold that the legislative intent that a member of the Commissioners be a member of the Commission was complied with on February 13, 1952.

Appellants contend that the appointments should have been made by the President of the Commissioners and confirmed by the Commissioners under Article 66B, Section 12, supra, and that under the Constitution of Maryland, Article 11A, Section 3, the President of the Commissioners is the chief executive officer of that body. The appointments were made and approved by the Commissioners when all members were present. If the President of the Commissioners had not agreed to those appointments, it is reasonable to assume that his disapproval would have been a matter of record. There is no record of his disapproval. From February 13, 1952, Mr. Dulin served with the other members of the Commission which is an indication of his approval of those members. We are of opinion that this was a sufficient compliance with the Enabling Act.

Appellants also complain because Mr. Norman Howeth resigned from the Commission on March 5, 1953, and his successor was not appointed until May 26, 1953. There is nothing in the record to show that the Commissioners did not act with reasonable promptness, under the circumstances, to fill the vacancy.

Appellants further allege and contend that the Appeal Board was not legally created. Code 1951, Article 66B, supra, Section 22, provides in part: '(Board of Appeals.) The council shall provide for the appointment of a Board of Appeals, * * *. The Board of Appeals shall consist of three members.' The minutes of the Commissioners show that on September 8, 1951, the Commissioners appointed three members to the Appeal Board. The appellants contend that because these appointments were not made by the President of the Commissioners alone, the Appeal Board was not validly constituted. The testimony shows that all the Commissioners agreed to these appointments. Therefore, the President of the Commissioners agreed to the appointments and they were confirmed by the council. As stated by the chancellor, it seems clear from the minutes of the Commissioners that each additional appointment was to replace a retiring member. There is no evidence that appellants ever appealed to this Appeal Board.

The appellants further contend that there was no preliminary report thereon by any Planning Commission prior to a final report by such Commission nor has there been any final report by any Planning Commission prior to the enactment of the Zoning Ordinance and that there were no hearings thereon. Code 1951, Article 66B, supra, Sections 21(d) and 21(f) provide: '(d) (Method of Procedure.) The council shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, establsihed and enforced, and from time to time amended, supplemented or changed. However, no such regulation, restriction or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen (15) days' notice of the time and place of such hearing shall be published in an official paper or a paper of general circulation in such municipality. * * * (f) In order that the municipality may avail itself of the zoning powers conferred by this sub-title, it shall be the duty of the Planning Commission to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. Such Commission shall make a preliminary report and hold public hearings thereon before submitting its final report and the council shall not hold its public hearings or take action until it has received the final report of such commission.' Mr. Dulin testified that the Commission, of which he was a member, had a meeting on April 6, 1953, and on April 7 Mr. Voshell, a member of the Commission, appeared before the Commissioners and reported to them about the meeting of the Commission on the previous evening. Mr. Voshell in his testimony read the following from the minutes of the meeting of the Commission of April 6 1953: 'The Commission reviewed the revised draft of the Ordinance of Talbot County, including the maps which had been prepared at the request of the 'Citizens Committee for Talbot County Development.' The Commission tentatively approved these drafts, subject to further consideration when a public hearing is planned.' He testified that he went before the Commissioners the next day and informally presented to them what the Commission thought desirable to present at the public hearing. He said that on April 7th he went over in complete detail with the Commissioners the proposed Ordinance, the maps and what the maps showed, and the Commissioners agreed that this would be presented at the public meeting. He told them when he...