Ipes v. Board of Fire Commissioners

Prescott, J., delivered the opinion of the Court. A widow, whose petition for a writ of mandamus to require the Board of Fire Commissioners of Baltimore City (Board) to pay her pension benefits for the death of her husband was dismissed, appeals. Peter H. Ipes, the appellant’s husband, was employed as an engineer by the Fire Department of Baltimore City for some years. On June 7, 1949, after becoming ill at his place of employment, he was admitted to a hospital, where he died ¹⁸² two days later.

Nine days after his death, the appellant made application to the Board for pension benefits under Section 80 of the City’s Charter, which was considered and denied on June 30, 1949. Thereafter, during the years 1953 and 1954, she sought reconsideration of her case without success, and, finally, on July 15, 1955, filed her petition for the issuance of a writ of mandamus. The appellees answered on July 28, 1955, and it was not until February 1, 1960, that the matter was submitted to the trial court for determination, without the aid of a jury. There is one crucial factual controversy between the parties: the appellant claims her husband’s death was due to a heat stroke while working under severe strain in a very high temperature, while the appellees contend that the deceased suffered a sudden rupture of a large blood vessel in the brain, at a time when he was performing his routine duties.

The cause of his death is a vital factor as to whether or not the appellant is, or ever was, entitled to a pension under Section 80. At the time of the hearing below, Dr. Lloyd, who was the Fire Department’s physician at the time of the death of the appellant’s deceased, and who had treated him immediately after he had been admitted to the hospital in June of 1949, had died. One member of the Board, as constituted at the time of the hearing before it, had also passed away, and the personnel employed by the Board, including its Executive Secretary, had changed since the initial hearing. Although the defendants made no mention of laches in their answer, the trial judge, of his own volition, decided the appellant had been guilty of long delay, which constituted laches, and dismissed her petition.

We must, therefore, answer this question: May the trial court in a mandamus proceeding raise the question of laches, sua sponte, when the defendants fail to plead the defense in their answer? Before resolving this question, we shall consider the appellees’ motion to dismiss the appeal. The appellant, inadvertently, omitted to have printed in her record extract the trial judge’s opinion; and also failed to have any of the evidence included therein. The appellees moved for a dismissal ¹⁸³ of the appeal under Maryland Rules 828 b, 1(a) and (b).

In her reply brief, the appellant supplied the inadvertently omitted copy of the trial court’s opinion, and it contains a sufficient statement of his findings of fact for us to determine the issue between the parties, as it is, for the main part, one of law and not of fact. The motion to dismiss will be denied. Rule 828 i. In Maryland, mandamus is a writ in the nature of a prerogative writ, and is an extraordinary remedy.

The writ is issued by the law courts. Code (1957), Article 60; Section 1. It is a remedy that it is based upon reasons of justice and public policy to preserve peace, order and good government, and, although the writ is issued by the law courts, many courts, including this one, and text-writers have stated that mandamus may be compared to a bill in equity for specific performance. High, Extraordinary Legal Remedies (3rd Ed.), Section 1; Booze v. Humbird, 27 Md. 1, 5 ; 2 Poe, Pleading and Practice at Law (3rd Ed.), ¶ 709; District Heights, Town of v. County Com’rs of Prince George’s County, 210 Md. 142, 146 , 122 A. 2d 489 .

It is not a writ of right, nor is it granted as of course, but only in the sound legal discretion of the judge who directs the issuance thereof. Weber v. Zimmerman, 23 Md. 45, 53 ; Kinlein v. Mayor & C. C. of Balt., 118 Md. 576, 581 , 85 A. 679 . Cf. Whittle v. Munshower, 221 Md. 258, 260 , 155 A. 2d 670 .

And, in approaching the question concerning the issuance, vel non, of the writ, the courts invoke equitable principles to reach the real merits of the controversy between the parties. Ghingher v. Fanseen, 166 Md. 519, 526 , 172 A. 75 ; Arant v. Lane, 249 U. S. 367, 371 ; 55 C.J.S., Mandamus, ¶ 2 (b); Nicholas v. United States, 257 U. S. 71, 75 ; United States ex rel. Greathouse v. Dern, 289 U. S. 352 . That laches is a proper ground for refusing to issue a writ of mandamus seems to be a proposition of almost universal recognition.

George’s Creek C. & I. Co. v. Co. Com., 59 Md. 255, 263 ; Duffey v. Rickard, 194 Md. 228 , 71 A. 2d 41 ; 55 C.J.S., Mandamus, ¶ 244; High, op. cit., p. 38; Arant v. Lane, supra, 249 U. S. at page 371 ; Nicholas v. United States, supra. And it has been recognized in many cases that in equity the ¹⁸⁴ court may in a proper case on its own motion refuse to grant relief to a complainant, who, on the final hearing, appears to have been guilty of laches, although that defense was not interposed by the defendant. Syester v. Brewer, 27 Md. 288, 319 ; Warburton v. Davis, 123 Md. 225, 231 , 91 A. 163 . Also, see the long list of cases, collected in an annotation in 173 A.L.R. beginning on page 337, and compare Rettaliata v. Sullivan, 208 Md. 617, 621, 119 A. 2d 420 , and Duffey v. Rickard, supra.

But, notwithstanding these authorities, the appellant contends that Maryland Rule 1240 b 2, which states