Love v. Bachman

Lowe, J., delivered the opinion of the Court. Arthur M. Love, Jr. (Love), the architect of a now completed school, appeals from the Anne Arundel County Circuit Court wherein the trial judge sustained, without leave to amend, a demurrer of appellees 1 who comprised the County Council of ⁵⁵⁷ Anne Arundel County (Council). Love had petitioned for a mandamus 2 praying that the Council be required to “Levy and collect such tax upon the assessable property of Anne Arundel County which, together with other local revenue available, including income tax revenues and bond monies and together with estimated revenues and funds from all sources, will produce $99,000.00 plus accrued interest and costs due the Petitioner, [and] Pay over said sum to the Board in order that the Petitioner may be paid.” This sum, we were told, was that which remained unpaid under an architect’s contract made with the Board of Education of Anne Arundel County (Board) pursuant to its authority. See Md. Code, Art. 77, § 47 (a) and (c).

Apparently the contract initially established a percentage fee based upon construction costs. When the General Assembly subsequently adopted the State school construction program, Md. Code, Art. 77, § 130A, the architectural fees assumed by the State were limited to a percentage less than that established in the contract. Supposedly relying on the State assumption of the entire construction program for the school in question, the Council rescinded a bond ordinance which it had passed and by which it had conditionally approved the capital construction project. Prior to that rescission, but after the Board’s construction budget had been approved (subject to the bond ordinance), the Board had entered into the contract with Love.

Love has now performed and has been compensated by the State only up to its maximum allowance which is $81,000 3 less than the agreed upon fee. A concise “STATEMENT OF WELL-PLEADED FACTS”, set forth by appellees in the record provides a full and fair ⁵⁵⁸ resumé of appellant’s amended petition to which appellees’ demurrer was sustained without leave to amend. “In 1970 the Anne Arundel County Council (‘Council’) approved the annual budget for the Board of Education of Anne Arundel County (‘Board’) which contained an appropriation of $7,212,000 for the construction of the Old Mill Senior High School. In connection with the approval of the Board’s annual budget, the Council enacted Bill No. 45-70, which appropriated $7,212,000 for the construction of the school, subject to funding from future bond authorizing ordinances. The requisite bond authorization was provided by Bill No. 60-70, t 4 l authorizing the issuance of the County’s general obligation bonds to provide, among other things, $7,212,000 for the construction of the Old Mill Senior High School.

In connection with the construction of the Old Mill Senior High School, the Board entered into a contract with the Petitioner for architectural services. As the result of the Board’s failure to pay the Petitioner fully pursuant to the contract, the Petitioner filed suit in the Circuit Court for Anne Arundel County. See Love v. Asaki, et al., Law No. C-7464. On March 1, 1974 a judgment in that case was entered against the Board and the balance due under that judgment is $81,000.

Petitioner also claims an additional amount of $18,000 for work performed in connection with the construction of the school. The Board of Education has refused to pay the Petitioner the $99,000 because the Council has refused to pay to the Board the $7,212,000 appropriated in fiscal 1971 to pay for the construction of the school.” ⁵⁵⁹ Because a demurrer shall state “in detail” the question of law or insufficiency of substance upon which the demurrer is founded, Md. Rule 345 b, 5 we find it propitious to set forth appellees’ express grounds in full: 6 “1. The duty of the Anne Arundel County Council to pay the Board of Education $99,000 of $7,212,000 appropriated in fiscal 1971 to finance the construction of the Old Mill Senior High School is not sufficiently clear to support the issuance of a writ of mandamus. 2. The Petitioner lacks standing to enforce by a writ of mandamus a duty owed by the Respondents to the Board of Education of Anne Arundel County.” Because the trial judge assigned no reasons for sustaining the demurrer, we are left to guess which of the two grounds he relied upon — the absence of a clear legal right in appellant (standing) or the absence of an imperative duty on the part of appellees.

Since both are prerequisite grounds for issuance of a writ of mandamus, Buchholtz v. Hill, 178 Md. 280, 288-289 , we must discuss each one. Appellant’s Standing Appellees contend that appellant lacks standing because the duty asserted (which we will treat subsequently) is not one owed to the public directly, but is owed rather to another branch or department of government. The Maryland authority upon which they rely (and which alone binds us) is summarized in their brief as follows: “The rule in Maryland is that a private person ‘may move for a mandamus, to enforce a public duty, not due to the government as such, without the intervention of a government law officer.’ (Emphasis supplied.) Levering v. Williams [Park Com ⁵⁶⁰ missioners], 134 Md. 48, 59 (1919). On the other hand, if the duty owed is to the government itself, or a department or representative of the government, the writ of mandamus may be brought only by the government itself.

This was the clear holding of the Court of Appeals in Heghinian v. Ford, 209 Md. 113 (1956).” The phrase appellees have quoted from Levering v. Park Commissioners, supra, was itself expressedly taken from Pumphrey v. Mayor & C. C. of Balto., 47 Md. 145, 154 . Had appellees gone to that source, they would have found in the preceding paragraph at page 153, the following, far more appropriate sentence in which “[a]ll the authorities concur: “... [W]here the petitioner has a personal interest in the matter, different in kind from that of the general public, he is entitled to the writ.” It is obvious even from appellees’ summary of admittedly well-stated facts, that appellant “has a personal interest in the matter, different in kind from that of the general public____” That is also the assumed prefatory predicate upon which appellees’ other Maryland authority, Heghinian v. Ford, 209 Md. 113, 117 , relies. “Since the appellant has no interest in the matter different from that of any member of the general public, we must examine the right of a citizen to compel action by a public official. Mandamus was originally a prerogative writ and a private citizen could not obtain it to compel performance of a public duty unless he had an individual and separate interest in the matter, not common to other citizens, and it was necessary for a government law officer to move for the mandamus. Later the prevailing view came to be, generally and in Maryland, and long has been, that ‘ * * * private citizens may move for mandamus, to enforce a public duty, not due to the government as such, without the intervention of the government law officer.’ Pumphrey v. Baltimore ⁵⁶¹ [Mayor & C. C. of Balto.], 47 Md. 145, 154 .

The rationale of this rule seems to be that if the duty is one in which the public, or a segment of the public, has an interest, an individual who is a member of the group which has such an interest may act on behalf of that group by virtue of the interest he shares with the others. It is still true, nevertheless, that to be entitled to the issuance of the writ of mandamus, the relator must have a real interest in the subject matter of the suit whether it be his alone or shared by a great number of people, and the respondent must owe him, or the group of which he is a member, an imperative duty. Pressman v. Elgin, 187 Md. 446, 452 ; Buchholtz v. Hill, 178 Md. 280, 288 .” (emphasis partially added). See also Liquor Stores Assn. v. Commrs., 171 Md. 426 , 428 429.

We agree with appellant that a citizen with a peculiar interest has standing to enforce a judgment against a county, although it was obtained by him against another legal political entity. 7 Labette County Com’rs v. Moulton, 112 U. S. 217 . “The question is, whether the respondents, to whom the writ is addressed, have the legal duty to perform, which is required of them, and whether the relator has a legal right to its performance from them, by virtue of the judgment he has already obtained. If so, then they are, as here, the legal representatives of the defendant in that judgment, as being the parties on whom the law has cast the duty or providing for its satisfaction. They are not strangers to it, as being new parties, on whom an original obligation is sought to be charged, but are bound by it, as it stands, without the right to question it, and under a legal duty to take those ⁵⁶² steps which the law has prescribed as the only mode of providing means for its payment. [Id. at 221]. It can make no difference in principle that in a particular case the law, instead of casting the performance of the entire duty upon a single person, has divided it among several, each to perform but one act in the series, and each acting independently and not as responsible to any of the others, but all required to cooperate in the attainment of the single result, and by a continuous and uninterrupted succession, so as to preserve the integrity and unity of the performance as an entire duty.

The relator is entitled to an effective writ, and he can have it only on the terms of joining in its commands all those whose co-operation is by law required, even though it be by separate and successive steps, in the performance of those official duties, which is necessary to secure to him his legal right. Otherwise the whole proceeding is liable to be rendered nugatory and abortive.” Id. at 224 . Finally, although the issue of parties was not raised in the demurrer, we note that having pled that the sole reason for the Board’s failure to pay the judgment was “because the Respondents (appellees) have failed and refused to pay over to the Board the funds appropriated to pay for the Center” (school), it is implicit that but for the Council’s recalcitrance, the Board would be willing to perform. Where the duty owed requires the performance of several acts, those who are willing to perform need not be joined as respondents, 55 C.J.S. Mandamus § 252.

Appellees’ Imperative Duty The reason first assigned by appellees (but treated here inversely) was that the duty of the Council to pay the Board $99,000 of the $7,212,000 appropriated in 1971 is not sufficiently clear to support a writ of mandamus. ⁵⁶³ Having asserted his contractual rights as having been duly established pursuant to the Board’s statutory authority to act upon approval and funding of its budget by the County Council, appellant sets forth the duty of appellees in the final paragraph of his amended petition: “The Respondents are required to levy and collect such tax upon the assessable property of Anne Arundel County which, together with other local revenue available, including income tax revenues and bond monies and together with estimated revenues and funds from all sources, will produce the amounts necessary to meet the appropriation for the Center made in the approved annual budget of the Board which the Respondents have failed and refused to do.” While the better practice would have been for appellant to have included a more specific reference to the source of that authority, appellees acknowledge in their brief that it derives from Md. Code, Art. 77, § 117 (e), which provides in pertinent part that the Council shall: "... levy and collect such tax upon the assessable property of the county which, together with other local revenue available, including income tax revenues and bond moneys and together with estimated revenues and funds from all sources, will produce the amounts necessary to meet the appropriations made in the approved annual budget of the county board of education.” Presumably admitting for purposes of demurrer a procedurally approved budget, 8 appellees invoke three ⁵⁶⁴ statutes to provide two reasons to support the contention that appellant has not established an “imperative duty”. First, appellees point out that the very statute upon which appellant relies in order, to show an imperative duty has additional procedural requirements which appellant has not alleged were complied with by the Board so as to give rise to appellees’ duty. The sentence following the language relied upon by appellant in § 117 (e) provides that: “Local funds provided for appropriations shall be paid in accordance with the expenditure requirements as certified by the county board of education to the treasurer of the county board of education on a monthly basis____” It is not clear to us why the procedural sentence of § 117 (e) relied upon by appellees should be interpreted so that the Council’s ministerial duty to pay arose only when the construction contract was fully executed, as appellees advocate. Section 117 (f) requires that in the event the Council fails to appropriate the amount requested by the Board for capital projects, the Council shall indicate in writing what portions of the proposed budget it denied and the reason therefor.

While certainly this would not preclude the Council from making a denial, or from approving and subsequently rescinding approval, the underlying rationale of that provision runs counter to the suggestion that the Council can play with school capital improvement budgets at its pleasure until a contract, entered into in reliance on the Council’s initial approval of a budget, is fully performed. Subsection (f) (formerly contained in § 68) “was designed, not only to guard against an arbitrary refusal of the County Commissioners to levy the amount deemed necessary by the Board of Education for public school purposes, but also to advise the County