Ansell v. Howard County Council

Hammond, C. J., delivered the opinion of the Court. In December 1971 James Ansell, “a voter, taxpayer and resident of the Second Election District of Howard County; and a practicing member of the bar of the State of Maryland,” filed a petition for declaratory relief against the five individuals who constitute the County Council of Howard County and against the president of the Board of Education of Howard County, alleging that “the said Council, at Legislative Session 19, by Resolution 120, introduced by Councilmen Holway and Hanna, adopted same date this Resolution authorizing the president of the Board of Education to enter into contracts for the construction of certain schools, and the modernization of another, in Howard County, totalling $9,933,-615.00.” Attached was a photocopy of the Resolution which recited that “the President of the Board of Education must enter into contracts for the construction of needed schools prior to full state funding” if the schools are to be open in the fall of 1973, and further recited: “ [T] he County Council is aware that the obligation to provide funding for the construction costs of school projects is now the responsibility of the State of Maryland, the County Council, ⁶³² therefore, expects that in the event any monies for the furtherance of school projects is advanced by Howard County in order to enable projects to be timely completed, Howard County can properly anticipate reimbursement by the State of Maryland for such expenditures,” and then read: “NOW, THEREFORE, BE IT RESOLVED by the County Council of Howard County, Maryland, this 6th day of December, 1971, that the County Council hereby grants its approval for the President of the Board of Education to enter into contracts for the construction of Dunloggin Middle School, Harpers Choice Middle School, Oakland Mills High School, and the modernization of Lisbon Elementary School for contract values not to exceed the approved Capital Program values of $2,531,340; $2,500,375; $4,052,000; and $849,900 respectively. “AND, BE IT FURTHER RESOLVED by the County Council of Howard County, Maryland, in the event funds are not made available by the State of Maryland by August 1, 1972, that the County Council will authorize short term loans to finance the construction of the above mentioned schools. The County Council expects that the State of Maryland shall reimburse Howard County for such expenditures in accordance with the obligation imposed upon the State of Maryland by Article 77, Section 130A of the Public General Laws of the State.” The petition prayed a declaration that the resolution was “null and void” because it was: “A. Unconstitutional and discriminatory” in that (1) it would give the children of Howard County better schools than those of children in other political ⁶³³ subdivisions; (2) constitute “an unwarrantable burden” on the real property taxpayers of Howard County whereas “other taxpayers [apartment house dwellers] are not paying their fair share”; and “B. Ultra Vires and illegal as: the said Resolution should have been by ‘Bill’ or ‘Ordinance’ as required by the Howard County Charter, adopted Novem5, 1968. the State of Maryland, by statute, has preempted the political subdivisions, including Howard County, from all public school construction.” The respondents to the petition say in their brief: “The Appellees believe that the petition filed by the Appellant was subject to demurrer even under the narrow guidelines established as applicable to a bill of complaint wherein a declaratory judgment is prayed. [Borders v. Board of Education, 259 Md. 256 and cases cited.] However, in view of the pressing time limitations facing the School Board with respect to the necessity for promptly entering into contracts for school construction, the Appellees answered the petition and awaited the evidence to be presented by the Appellant at the hearing on the merits. “The Appellant chose neither to present witnesses on his behalf, nor to testify himself. He did not offer other competent evidence at the hearing.” The record supports the accuracy of the last two sentences.

Judge Mayfield, on the pleadings, illuminated and perhaps amplified by the arguments, dismissed the petition, finding on the strength of Liberto v. State’s Attorney, 223 Md. 356, 361 , that there was no “genuine controversy,” and on the strength of Heath v. Board, 230 ⁶³⁴ Md. 230 and Tanner v. McKeldin, 202 Md. 569, 580 , that there had been presented no actual “justiciable controversy” that would entitle the petitioner to a declaration. Before this Court the parties present only the question of whether there was or was not the justiciable controversy contemplated by the Uniform Declaratory Judgments Act, Code (1971 Repl. Vol.), Art. 31A, §§ 2 and 6. We agree with Judge Mayfield that the petitioner cannot prevail, but think there was presented a justiciable controversy and he must be told he cannot prevail by a declaration rather than a dismissal.

Borders v. Board of Education, 259 Md. 256 , and cases cited. At the argument before us, it appeared to be conceded that when Mr. Ansell described himself as a taxpayer of Howard County he meant that one of the type of taxes he paid was the real estate tax on his dwelling. His petition challenges as unlawful and discriminatory the real property taxes he foresees would be imposed on him to pay for the school construction authorized by the resolution he attacks as