Board of County Commissioners v. Gardner

FISCHER, Judge. The Board of County Commissioners of St. Mary’s County appeals from a decision of the Circuit Court for St. Mary’s County declaring a county ordinance null and void. The ordinance is a road taxing provision affecting the Longview Beach Subdivision. Appellees are a group of the subdivision property owners.

Appellant mounts numerous attacks upon the action of the circuit court, but we need only discuss the issues relating to parties. Md.Cts. & Jud.Proc. Article § 3-405(c) (1974) states: If the statute, municipal or county ordinance, or franchise is alleged to be unconstitutional, the Attorney General need not be made a party but, immediately after suit has been filed, shall be served with a copy of the proceedings by certified mail. He is entitled to be heard, submit his views in writing within a time deemed reasonable by the court, or seek intervention pursuant to the Maryland Rules. [Emphasis added.] Although the amended complaint challenges the constitutionality of the ordinance, the Attorney General was not notified of the circuit court proceedings.

It, therefore, follows that the appellees overlooked the clear mandate of the statute. Pressman v. State Tax Commission, 204 Md. 78 , 102 A.2d 821 (1954); Givner v. Cohen, 208 Md. 23 , 116 A.2d 357 (1955). Appellees contend that it was unnecessary in this case to comply with § 3-405(c) for reason that the circuit court did not determine the statute to be unconstitutional but struck it down for other reasons. Under these circumstances, any error may have been harmless.

We do not believe, however, that the requirements of § 3-405(c) can be so easily avoided. It is impossible to predict the impact, if any, that the participation of the Attorney General would have had. It is conceivable that the Attorney General may have taken the position that the ordinance was unconstitutional. Moreover, we remind appellees that the word “shall” is pre ⁴¹⁹ sumed mandatory unless the context indicates otherwise.

Moss v. Director, Patuxent Institution, 279 Md. 561, 565 , 369 A.2d 1011 (1977). We are unable to discern from § 3-405(c) a legislative intent to the contrary. Since the effect of a failure to follow the § 3-405(c) requirements has not been previously decided, we turn to other jurisdictions which have adopted similar provisions. The consensus is that “service of a copy of the proceedings upon the Attorney General is not only mandatory, but goes to the jurisdiction of the court to hear the action in the first instance.” McCabe v. City of Milwaukee, 53 Wis.2d 34 , 191 N.W.2d 926, 927 (1971); LaFleur v. Frost, 146 Me. 270 , 80 A.2d 407, 411 (1951); Johnston v. Bd. of Adjustment and Town Council of Westfield, 15 N.J.Misc. 283, 190 A. 782, 783 (1937); Hydraulic Press Brick Co. v. City of Independence, 38 Ohio App.2d 37 , 311 N.E.2d 873, 875-876 (1974); Commissioners Court of Harris County v. People Nat.

Utility Co., 538 S.W.2d 228, 229 (1976); Town of Center v. City of Appleton, 70 Wis.2d 666 , 235 N.W.2d 504, 505-506 (1975). We are not, however, ruling that notice to the Attorney General is jurisdictional. We also refer appellees, who requested declaratory and injunctive relief, to § 3-405(a)(l) & (2) of the Courts Article. It provides: (1) If declaratory relief is sought, a person who has or claims any interest which would be affected by the declaration, shall be made a party.

(2) Except in a class action, the declaration may not prejudice the rights of any person not a party to the proceeding. In Chairman of the Bd. of Trustees v. Waldron, 285 Md. 175 , 401 A.2d 172 (1979), appellee sought a declaration that a provision of the Md.Ann.Code was unconstitutional. The suit was dismissed for want of a necessary party. In so ruling, the Court of Appeals noted the additional joinder requirements contained in § 3-405(a). ⁴²⁰ Applying those requirements to the present case, we are faced with an ordinance levying a road tax on property within the Longview Beach