Brenneman v. Roth

Collins, J., delivered the opinion of the Court. This is an appeal from part of a decree passed by the Circuit Court for Garrett County. It appears that at a meeting of the County Commissioners of Garrett County on February 7, 1956, Aubrey C. Brenneman, one of the County Commissioners, made a recommendation that Irvin Roth, another ⁴⁹⁴ County Commissioner, be no longer paid for the distribution of surplus food in Garrett County. Later an amended bill of complaint was filed by Irvin Roth, as a taxpayer of Garrett County, complainant and appellee, against Harvey D. Swartzentruber, individually, respondent; Aubrey C. Brenneman, individually, respondent and appellant here; the Board of County Commissioners of Garrett County, a corporation, respondent, hereinafter referred to as the Commissioners; and such Commissioners sitting as the Garrett County Road Board, respondent, hereinafter referred to as the Road Board.

This bill of complaint sets out the provisions of Code, 1951, Article 25, Section 26, which provides: “It shall not be lawful for any County Commissioner, during his term of office, to hold, possess, purchase or acquire any share or interest in any agreement or contract made, entered into or concluded with any party or parties, whomsoever, by the County Commissioners of his county, in their character and capacity as such Commissioners, or to have, receive, enjoy or participate, either directly or indirectly, in any of the benefits, profits or emoluments of any such agreement or contract.” Also, Code, 1951, Article 25, Section 27, which provides: “It shall not be lawful for any county commissioner, during his term of office, to accept, hold, purchase or acquire any claim on or against the county of which he is a commissioner, or any share or interest in such claim, which said claim has been or is to be passed upon and approved by the board of county commissioners of which he is a member.” Also, Code, 1951, Article 25, Section 28, which provides: “•If any county commissioner shall violate any of the provisions of the two preceding sections, he shall be liable to indictment, and, upon conviction, shall forfeit his office, and shall also forfeit his share in ⁴⁹⁵ the agreement, contract or claim, as aforesaid, as the case may be.” The bill further alleges that Irvin Roth is a Commissioner, Aubrey C. Brenneman is a Commissioner and Vice-President of that body, and Harvey D. Swartzentruber is a Commissioner and President of that body. The Commissioners sit also as the Road Board. Aubrey C. Brenneman is in the Drilling and Plumbing business in Garrett County and is assessed for personal property, tools and machinery in the name of “A. C. Brenneman et al.” and is doing business in said County under the trade name of “A. C. Brenneman and Son”, or in a partnership with his son, John J. Brenneman, and he has a direct or indirect interest in his son’s business in Garrett County. Harvey D. Swartzentruber runs a mercantile business in Garrett County and has a direct interest therein.

The Commissioners own and the Road Board controls and regulates a Rock Quarry known as “Bishop’s Quarry” for the purpose of supplying stone for county road work. To provide stone it is necessary to do much heavy drilling in order to blast the stone with explosives. This drilling and blasting will cost approximately $35,000.00. The Commissioners, sitting as the Road Board, without the knowledge of Mr. Roth and without official approval or record entered upon the minutes of said Commissioners, made an agreement with Aubrey C. Brenneman, trading as “A. C. Brenneman and Son”, to drill at Bishop’s Quarry for the price of $2.00 a foot.

William W. DeWitt, Road Engineer for Garrett County, an employee and appointee of the Commissioners, sitting as the Road Board, illegally and contrary to law, without first obtaining the approval and authority of the Commissioners, has paid “A. C. Brenneman and Son”, and John J. Brenneman the total sums of $15,197.81 by vouchers and checks, the checks being endorsed by John J. Brenneman. The vouchers were illegally approved unofficially, without legal authority, by Mr. DeWitt. The approval dates on the vouchers are blank and there is no approval of any of these vouchers entered upon the minutes of the Commissioners. The Commissioners sitting as the Road ⁴⁹⁶ Board kept no minutes whatever.

Aubrey C. Brenneman and Mr. Swartzentruber as Commissioners both unofficially and illegally approved all the aforesaid vouchers, except two which were approved by Messrs. Roth, Brenneman and Swartzentruber, the three Commissioners of Garrett County. Mr. Roth gave his approval to these two vouchers by reason of “inadvertence, ignorance of the law and certain facts”. The Commissioners also, without Mr. Roth’s knowledge and without any official approval by the Commissioners, sitting as the Road Board, did business with Mr. Swartzentruber’s mercantile business by purchasing merchandise therefrom in the amount of $60.40.

This amount was illegally paid without legal authority by Mr. DeWitt by checks which were endorsed by Mr. Swartzentruber. The vouchers were illegally approved after payment, the approval date being blank, by the three Commissioners. The bill further alleges that the payment of the aforesaid vouchers and checks by Messrs. Aubrey C. Brenneman and Swartzentruber, though not officially entered upon the minutes of the Commissioners, sitting as the Road Board, constituted' a direct violation of Article 25, Sections 26 and 27, aforesaid.

The complainant, Mr. Roth, upon being informed by his counsel of the law, and after discovering all the aforesaid facts, had entered upon the minutes of the Commissioners an assertion that such contractual relations of the Commissioners should cease, and all illegal payments should be returned to Garrett County, and no further payments should be made. However, no official action was taken by the Commissioners, or sitting as the Road Board, since the motion so made came from a minority member of the Commissioners. The bill prayed that an injunction be issued enjoining the Commissioners as such or sitting as the Road Board, and Messrs. Swartzentruber and Aubrey C. Brenneman, during their term of office as Commissioners, from entering into any agreement or making any contract “they may be interested in, directly or indirectly, and that any and all such contracts or agreements so made shall be declared to be null and void and in violation of the Statutory Laws of Maryland, and in gross ⁴⁹⁷ violation of Public Duty.” The bill also prayed for other and further relief.

A demurrer was filed to the amended bill which was overruled. At the pre-trial conference the chancellor dismissed the Commissioners and the Road Board as respondents and left in the case Messrs. Aubrey C. Brenneman and Swartzentruber. Mr. Swartzentruber did not appeal from that part of the decree against him and that part is not before us here.

The chancellor, after a full hearing, filed an opinion in which, among other things, he held void the drilling contract with John J. Brenneman. However, he did not so provide in the decree. The appeal is from the decree. The opinion does not constitute a part of the decree, and the appeal, of course, is only from the decree.

Alleghany Corporation v. Aldebaran Corporation, 173 Md. 472, 478 , 196 A. 418 ; Velasco v. P. E. Church in Maryland, 200 Md. 634, 640 , 92 A. 2d 373 . There was no cross appeal. The chancellor decreed: “For the reasons set forth in the Opinion filed herein and dated June 19, 1956, it is this 19th day of June, 1956, by the Circuit Court for Garrett County, Maryland. “ADJUDGED, ORDERED AND DECREED: “1. That the defendant, Harvey D. Swartzentruber, be and he is hereby enjoined, while he is a County Commissioner, from selling to the Board of County Commissioners of Garrett County, or to such Board of County Commissioners, sitting as a Road Board, any goods, wares or merchandise, or from doing any business on his own account with such Board. “2.

That the defendant, Aubrey C. Brenneman, as an individual and as a partner of A. C. Brenneman and Son, be and he is hereby enjoined, as long as he is a County Commissioner, from doing any business with the Board of County Commissioners of Garrett County, or with such Board of County Commissioners sitting as a Road Board; and he is further enjoined while he is a County Commissioner from acting as such during any discussions of or actions ⁴⁹⁸ by "such Board with reference to the balance which may be due to ‘John J. Brenneman’ (or to ‘A. C. Brenneman and Son’) for drilling work performed at ‘Bishop’s Quarry’ under the drilling contract or contracts testified to in this case. “3. That the Board of County Commissioners of Garrett County and such Board of County Commissioners sitting as the Garrett County Road Board, their agents, servants, and employees, be and they are hereby enjoined from entering into any contract with or doing any business with any individual County Commissioner in violation of the provisions of Sections 26 and 27 of Article 25 of the Code of Public General Laws of Maryland; “4. That the Board of County Commissioners of Garrett County, and such Board of County Commissioners sitting as the Garrett County Road Board, be and they are hereby temporarily enjoined from making any further payments on account of the drilling operations of ‘John J. Brenneman’ or ‘A. C. Brenneman and Son’ until the further order of this Court; this temporary injunction will be dissolved upon proper proof herein that the proper legal amount due for such drilling operations has been determined by agreement between the parties concerned (in the negotiations for which Aubrey C. Brenneman may not sit as a County Commissioner) or through appropriate legal proceedings. “The Clerk will issue and cause to be served upon the various defendants the writ of injunction in accordance with the foregoing decree, annexing to each such writ a copy of this decree. “The Court retains jurisdiction in this case to ensure appropriate compliance with this decree. The costs herein will be paid by the two individual defendants.” From the order overruling the demurrer and from the aforesaid decree, Aubrey C. Brenneman appealed here.

In ⁴⁹⁹ this Court he dismisses his appeal from the overruling of the demurrer and stands on his appeal from paragraph 2 of the aforesaid decree. By Chapter 1031, Acts of 1945, as amended by Chapter 663, Acts of 1951, the Commissioners are constituted the Road Board. As the chancellor at the pre-trial conference dismissed the Commissioners and the Road Board as respondents in the case and as the respondents were not parties at the time the decree was passed, paragraphs 3 and 4 must fall and be stricken from the decree. The question therefore before us relates to paragraph 2 of the decree.

Testimony was taken in open court before the chancellor. The Road Board on March 24, 1955, made a contract with John J. Brenneman to drill 1,500 feet or more. The price later agreed upon was $2.00 per foot. Under this contract John claims that $16,438.00 is still due him.

Mr. Aubrey C. Brenneman in his own behalf testified in part as follows. He was elected a County Commissioner of Garrett County on November 2, 1954, and assumed office on December 2, 1954. He had been in the drilling business since 1930. He has one son, John J. Brenneman.

He traded as sole proprietor of his drilling business until 1948, when he took in his son as a partner. John had returned from the Navy in 1945 or 1946. No written articles of partnership were written up. The partnership was verbal.

John continued as a partner until the summer of 1954. At that time his, Aubrey’s, health was not good. He was becoming deaf and had diabetes. He also had had pneumonia several times.

He was very active in the business until the summer of 1954. Up until that time he had done heavy lifting, drilling, strenuous work, sharpening tools and changing bits. In 1954 he ceased working on the job and did no more physical work. He became a candidate for County Commissioner.

Being “pretty sure” of being elected in November, in July, 1954, he orally gave his son, John, his, Aubrey’s, interest in the partnership on the condition that John run it. He, Aubrey, was not to be a partner in the profits. At that time John owed him $6,865.00. John was to repay him that sum “as he could, as he got the money”.

At the time of the hearing on June 12, 1956, John had re ⁵⁰⁰ paid him $4,500.00, leaving a balance due of $2,365.00, which John still owed him. The Department of Geology, Mine and Water Resources had been issuing