Foley v. County Commissioners

Barnbs, J., delivered the opinion of the Court. Seven appellants, plaintiffs below, filed an action “on behalf of themselves and for the benefit of all similarly situated,” in the Circuit Court for Carroll County against the County Commissioners of Carroll County (County Commissioners) and the Sanitary Commission of Carroll County (Commission). The lengthy declaration concluded with prayers for declaratory relief and the issuance of a writ of mandamus; in essence, the appellants challenged the action of the County Commissioners in approving the creation by the Commission of the Freedom Sanitary District. The appellees filed a motion for summary judgment, supported by affidavits and 22 exhibits, attempting to show that the sanitary district was created in compliance with applicable law.

Following a hearing, the Circuit Court for Carrol] County (Weant, J.) granted appellees’ motion for summary judgment. This appeal followed. In April, 1965, the County Commissioners acting pursuant to Maryland Code, Article 43, section 646 (1965 Repl. Vol.) created a “district” known as The Carroll County Sanitary District.

A “district” is a body politic and corporate created for the purpose of acquiring, constructing, maintaining and operating water and sewer systems. Article 43, section 646 and 645(1). ¹⁶⁶ At the same time, the County Commissioners appointed the first members of the Commission of the Carroll County Sanitary District, Inc. 1 The Commission, on May 21, 1965, held an organizational meeting and thus, on that date, became functionally competent to carry out the various powers and duties bestowed upon it by Article 43. Since the County Commissioners did not signify otherwise, The Carroll County Sanitary District, by statute, is “deemed to be formed to exercise its powers within the entire incorporating county.” Article 43, section 646. The statutory scheme contemplates that the Commission will establish within the county one or more “sanitaiy districts,” each sanitary district being “a defined geographical area, bearing a distinctive name, located within the territory in which a district exercises its powers * * *.” Article 43, section 645 (e).

The Commission is empowered to issue bonds to pay the cost of providing water and sewer improvements in any sanitary district and to impose charges for connections with the systems provided, to assess all properties binding on roads in which a water or sewer main has been built and to levy an ad valorem tax on all assessable property within the sanitary district. Article 43, sections 654, 657 and 658. There are two methods by which a sanitary district may be created under the provisions of Article 43, section 652: (a) by resolution of the Commission with the consent of the governing body of the county; or (b) upon the petition of 25 property owners residing in a locality within the county requesting the Commission to have the locality constituted a sanitary district. The second method is the one used in the present case.

On June 30, 1965, the Commission received a petition signed by more than 25 property owners residing in the Freedom Election District of Carroll County, requesting “to have [the Freedom Election District] constituted a sanitary district for the purpose of providing water and sewerage facilities within ¹⁶⁷ the district.” The Commission gave its preliminary approval to the request, and pursuant to the requirements of section 652 (b), engaged an engineering firm — Matz, Childs & Associates — ■ to study the engineering feasibility and probable cost of providing the Freedom Election District with water and sewerage facilities. Upon completion of the preliminary engineering survey, section 652 (b) directs the Commission to give notice by publication in local newspapers for three successive weeks and by handbills “posted and circulated” in the area of the proposed sanitary district. The notice “shall describe the proposed sanitary district * * *, together with the time and place of hearing to be held, at which hearing a report shall be made as to the then estimated approximate cost of the facilities contemplated and the establishment of a sanitary district” and the amount, if any, to be financed by the issuance of bonds. After this notice and hearing, section 652 provides that the Commission, in its discretion, may sign an order granting the establishment of a sanitary district.

The Commission’s discretion is not unlimited, but is expressly conditioned: (1) “upon a finding that such establishment * * * is necessary to the public health, safety and welfare of the residents within such new * * * sanitary district,” and (2) “upon a finding that such establishment * * * is feasible from an engineering and financial standpoint * * Article 43, section 652 (a) and 652 (b). The statute then provides for the publication of the written order of the Commission setting out its determination. The appellants make no claim that the Commission failed to comply in full with these statutory requirements or that these procedures are in any way unlawful, either as written or applied. The appellants’ attack goes solely to that portion of section 652 (b) which provides for review of the Commission’s order by the County Commissioners.

Section 652 (b) further provides : “If ten (10) residents and landowners in the area involved in any such order are dissatisfied with the order of the commission, they shall have the right to take and enter within ten (10) days after the first publication of said order, as above provided, an ap ¹⁶⁸ peal to the governing body or governing bodies of the county or counties in which lies the proposed sanitary district or enlargement thereof who shall review, after due notice of hearing, the commission’s decision. If the governing body or governing bodies of said county or counties shall find that the amount of bonds to be issued pursuant to § 654 of this subtitle to pay the costs of installing such facilities and establishing a new sanitary district, together with the unamortized balance of the bonds issued to pay the cost of all facilities previously installed by the commission in the area involved, will not exceed twenty-five per centum (25%) of the assessed property value as fixed for county taxation purposes within said area or locality, and if they find that the proposed project is feasible from an engineering and financial standpoint, and if, in addition thereto, they shall find that it is necessary to the public health, safety and welfare of the residents therein that said sanitary district be established or enlarged, they may in their discretion reverse any decision of the commission denying the petition to create or enlarge a sanitary district. If such governing body or governing bodies do not so~ find, they may in their discretion reverse any decision of the commission creating or enlarging a sanitary district(Emphasis supplied). More than 10 residents and landowners in the Freedom Election District filed a petition for appeal to the County Commissioners from the order of the Commission, as permitted by section 652 (b).

On July 11, 1966, after the required notice was published, a hearing was held on this appeal at the Sykes-ville High School. The County Commissioners, on September 6, 1966, affirmed the decision of the Commission constituting the Freedom Election District a sanitary district and made, in writing, the findings required by section 652 (b). (1) The appellants’ first contend that section 652 (b), above-quoted, is an invalid delegation of legislative authority because ¹⁶⁹ it lacks sufficient guides and standards to be followed by the County Commissioners in exercising the legislative power. We disagree.

While the ultimate decision of the County Commissioners rests in their discretion, the criteria which the County Commissioners are to apply in reviewing the action of the Commission are clearly set forth and are numerous: 1. The principal amount of bonds to be issued must not exceed 25% of the assessed property value in the proposed sanitary district. 2. The project is feasible from an engineering and financial standpoint. 3. The establishment of the proposed sanitary district is necessary to the public health, safety and welfare of the residents in the locality to be served.

If the Commission denies a petition to create a sanitary district, the County Commissioners may, in their discretion, reverse that decision and grant the petition if they find the three criteria exist; on the other hand, if the Commission grants the petition, the County Commissioners may, in their discretion, reverse the decision of the Commission if they find that any one or more of the three criteria has not been met. In our opinion, our decision on this point is controlled by our decision in Ackley v. Wicomico County Urban Services Comm’n, 223 Md. 196 , 163 A. 2d 122 (1960) in which we sustained the constitutionality of Chapter 287 of the Acts of 1959, creating the Wicomico County Urban Services Commission and delegating certain powers and duties to it. As in Section 652 (b), the Urban Services Commission was authorized, in its discretion, to establish a new district upon the petition of a certain number of property owners residing in the proposed new district. The criteria for the exercise of the discretion were almost identical to the criteria set forth in Section 652 (b), the only difference being in the percentage limiting the cost of all facilities in reference to the assessed property value.

The appellants in Ackley also argued that these guides and standards were insufficient and that the attempted delegation of legislative power was improper. In sustaining the validity of the legislation, Judge Henderson, for the Court, stated: ¹⁷⁰ “The cases generally recognize that there is no improper delegation, where the discretion conferred is unfettered, even though the power is invoked or initiated upon petition of interested parties. See Water District No. 1 of Johnson County v. Robb, 318 P. 2d 387, 398 (Kan.) (1957) ; Note, 70 A.L.R. 1062 , 1064. Cf.

Leonardo v. Board of County Comm., 214 Md. 287, 304 . * * * “We find no merit in the contention that there were no adequate standards to guide the Commission in the instant case. In dealing with matters affecting public health or safety, elaborate or detailed guides are unnecessary. Cf. Givner v. Commissioner of Health, 207 Md. 184, 191 , Pressman v. Barnes, 209 Md. 544, 554 , and McBriety v. Mayor, etc. of Baltimore, 219 Md. 223, 238 .

We think the standards set up in the Act are adequate.” ( 223 Md. at 203-04 ; 163 A. 2d at 126 ). See also Truitt v. Board of Public Works, 243 Md. 375, 385-392 , 221 A. 2d 370 (1966). The Supreme Court of the United States has sustained the sufficiency of guides and standards far less definite than those involved in the present case, and indeed, has sustained Congressional enactments in which guides and standards have been entirely absent. See Arizona v. California, 373 U. S. 546 (1963).

See also Davis, Administrative Lam Treatise, sections 2.03 and 2.04. (2) The appellants principally stress the contention that they were denied due process of law because the hearing before the County Commissioners did not provide for cross-examination of witnesses and other procedural safeguards. Counsel for the appellees concede that the proceedings were not conducted as a trial-type hearing, but maintain that the hearing is a legislative one in which the usual procedural safeguards necessary for a judicial hearing are not required. Counsel for the appellants conceded at the argument that the hearing was not the usual ¹⁷¹ judicial hearing, and the full safeguards of a judicial hearing were not applicable.

The appellants maintain, however, that the nature of the administrative hearing required move safeguards than the appellants were afforded, referring us to an interesting article entitled Some Aspects of Administrative Law in Maryland by Leonard E. Cohen, 24 M.L.R. 1 (1964). In our opinion, the hearing required by Section 652 (b) is a quasi-legislative hearing at which legislative facts, as opposed to adjudicative facts affecting the rights of a specific person, are to be explored and determined. When the General Assembly, itself, acts there is no constitutional requirement that there be any hearing. Union Investors, Inc. v. Montgomery County, 244 Md. 585, 588 , 224 A. 2d 453 (1966).

Where legislative hearings are held, they are generally held before a committee of one of the two houses of the General Assembly after notice has been given of the hearing date with the opportunity to members of the public to