Mayor of Havre De Grace v. State Board of Health

Horney, J., delivered the opinion of the Court. In this action by the State Board of Health 1 to compel the City of Havre de Grace to construct a sewage treatment plant and place it in operation, the principal question relates to the authority of the Board to enforce compliance with its order directing construction of the plant. On November 18, 1954, the Board, by virtue of the author ²²⁶ ity conferred on it by Code (1957), Art. 43, § 393, found as a fact that the absence of a sewage plant in Havre de Grace was a menace to health and ordered the construction of one to be completed by September 1, 1957. There was no appeal from the order, but, despite the Board’s offer of the facilities at its command, the time stipulated expired without any action having been taken by the Mayor and City Council.

In October 1959, following a five-year period of inactivity on the part of the City, the Board filed a bill in equity in which it sought to have the court assume jurisdiction of the matter and require compliance with the Board’s order and the assessment of penalties prescribed by Art. 43, § 405, for failure to comply with such order. The City advised the court that it had previously engaged the services of consulting engineers in August 1959 and that the preliminary plans and recommendations would not be available for approximately six months. In February 1960, the City, answering the bill, recognized the enforceability of the Board’s order, averred that it had begun to obey the order in good faith but had not commenced actual construction of the sewage plant, and, in asserting that it was not necessary for the court to assume jurisdiction, denied that failure to construct the plant theretofore had menaced the public health and that operation of the municipality without a sewage plant was a continuing danger to public health. Again, despite the Board’s offer of additional advisory services, nothing further was done toward constructing the plant until after the expiration of another protracted period of four years, when, in February 1963, the Board moved for an “immediate hearing” and two months later moved for summary judgment on the theory that there was no genuine dispute as to the material facts.

The City countered by asserting that there was a real dispute as to material matters which ought to be resolved at a trial of the case on the merits. Although the record is far from satisfactory and somewhat vague, it appears that there was no genuine dispute of the fact that a sewage plant should be constructed without further delay, but it is apparent that there is a real controversy between the mayor and three of the councilmen on one side (the majority group) and the other three councilmen (the minority ²²⁷ group) on the other side as to where the plant should he located. The majority group favors locating the plant on the State Military Reservation (the site of the former Havre de Grace Race Track). On the other hand, the minority group favors locating the plant on Revolution Street in Havre de Grace at a site closer to Chesapeake Bay.

Also, the minority group contests the right of the mayor to vote on measures which are administrative or ministerial in character or to cast a deciding vote in case of a tie in the voting of councilmen on such measures. It also appears that the six-member City Council (exclusive of the mayor) was evenly divided with respect to the employment of special counsel and the continued employment of the same or other consulting engineers, and that the chancellor, on the insistence of the minority group, struck out the appearance of counsel the majority group had employed. As a result of the striking the City as such was not represented at the summary judgment hearing before the chancellor. Neither the original bill nor the answer of the City was ever amended or otherwise supplemented, and until the minority group, who were not then parties, filed purported answers to the bill, there were no other pleadings.

Furthermore, between the date of the filing of the bill, on October 22, 1959, and the day before the case came on for hearing, on October 3, 1963, the only parties to this suit were the State Board of Health as plaintiffs and the City of Havre de Grace as defendant, but on the eve of the day set for the hearing, both the majority and minority groups were permitted to intervene as additional parties and to employ counsel to represent them. Each group employed separate counsel. But apparently because they did not have time, the majority group did not file an answer. Nor did they file any affidavits or depositions in opposition to the motion for summary judgment until after the hearing.

As hereinbefore stated, the minority group had prematurely filed an answer and a supplement thereto before the court had given them permission to intervene, in which, among other things, they undertook to inform the court of a motion passed on May 7, 1962, and a resolution adopted on July 16, 1962, purporting to approve a site (presumably the Revolution Street ²²⁸ site favored by the minority group) and to authorize the mayor to acquire it. In terms the motion, passed by a five-to-one vote, accepted the recommendations contained in the preliminary report of the consulting engineers (which contained a suggestion as to the location of the plant), instructed the city attorney to take the necessary steps to procure title to the site, and employed a Baltimore attorney to do the legal work incident to the issuance of bonds to finance the project. The resolution, certified to have been adopted by the Mayor and City Council, enjoined the mayor to acquire the property required for the completion of the facility by agreement or otherwise. There was a clear indication in the record that the case would be tried on the merits as well as on the motion for summary judgment, but it was heard only on bill and answer.

There were no affidavits or depositions to support the contentions of any of the parties, and there were no admissions on the part of any of the parties. Nor were any witnesses called or any evidence taken. There was the allegation in the answers of the minority group that the Revolution Street site had been previously approved by a majority of the City Council. But there were also oral statements at the hearing to the effect that the perennial dispute as to where the plant should be located had not been resolved, a fact which the court appears to have ignored because it was not included in the pleadings.

At the conclusion of the hearing — despite the fact that the case did not present an issue as to the location of the plant— the chancellor, in addition to prescribing a time table within which the several stages of the construction should be completed, summarily ordered the City “to construct and to place in operation” a sewage plant on the site suggested in the preliminary report of the consulting engineers. Within the time allowed by rule, the appellants in a combined petition and motion (supported by numerous affidavits made on personal knowledge) sought a rehearing of the motion for summary judgment and a summary declaratory judgment as to other matters. Both were denied but not until after the appeal was taken: the petition by an order in writing; the motion by implication since the chancellor failed to act on it. The petition sought a rehearing because the case had not been tried on ²²⁹ its merits.

The court was advised, among various other pertinent things, that the previously employed consulting engineers were now recommending that the Military Reservation site was the most desirable and feasible for the sewage plant, and that the majority group, with the mayor casting the deciding vote to break the tie, acting on the recommendation of the consulting engineers, had adopted a resolution to construct the sewage plant on the Military Reservation site, or at some other location, and had repealed all previous resolutions, motions and other actions indicating approval of the Revolution Street site. The motion primarily sought a declaratory ruling as to the right of the mayor, in accordance with the charter and the long continued and unvarying municipal practice, to cast the tie-breaking or deciding vote on resolutions and other measures not ordinances which determine administrative and ministerial matters. The petition and motion also referred to (but did not present for decision) other points or questions of law affecting the enforceability of the order (requiring construction of the sewage plant and the validity of the bonds to be issued to finance such construction) which might have to be decided by the lower court. One suggested that there was a question as to whether the action of the City in acquiring a site for the sewage plant must be by ordinance rather than by resolution.

Another query was whether the provisions of § 395 of Art. 43 of the Code (providing for the raising of such funds as are necessary to comply with the order of the Board without submission of a question as to the issuance of bonds for that purpose to a vote of the people) are applicable rather than the provisions of §§ 368 and 370 of the City Charter (providing for the submission of a question as to issuance of bonds to finance the construction of the sewage plant to the voters on referendum as if the City had taken the initiative to construct it). After the summary judgment had been entered, the chancellor modified the order granting it nunc pro tunc by inserting therein an additional provision as to a minor detail. There are three appeals. The first is from the summary judgment and from the failure of the chancellor to act on the petition for a rehearing and the motion for a summary declaratory judgment before the appeal was taken.

The second appeal is ²³⁰ from the denial of the petition and motion after the first appeal had been taken. And the third appeal is from the mmc pro 1 tunc order modifying the original order for summary judgment. The appellees moved to dismiss the second and third appeals, but we think our decision on the first appeal will make it unnecessary to consider either of the motions to dismiss. In essence the contentions of the appellants are: (i) that the chancellor should not have invaded and usurped the constitutional authority of the Mayor and City Council of Havre de Grace to determine the location or site of the sewage plant; and (ii) that the mayor has a right to cast the tie-breaking vote on resolutions and other measures which determine administrative or ministerial matters.

But (iii) the principal question posed by the appeal, as the original plaintiff correctly asserts, relates to the authority of the Board to enforce compliance with the order directing construction of the sewage plant. It may well be that the Board should have sought relief in a court of law by way of a writ of mandamus rather than in a court of equity. But because the parties appear to have waived the question of jurisdiction, there would seem to be no reason why equity should not retain jurisdiction to compel compliance by the City with the order of the Board. (i) We agree with the appellants that the chancellor lacked judicial power to designate the location or site of the sewage plant.

Having found as a fact, after an investigation, that the absence of a sewage treatment plant was a menace to the health of the municipality, all that the Board had authority to do, under the terms of § 393 of Art. 43, was to order the City to construct a plant and put it in operation within a specified time and enforce such order as it might deem proper under the circumstances. The Board was not authorized, nor did it ever attempt to select a site for the location of the sewage plant. The City, apparently because the Mayor and City Council could not agree on a site, has done nothing of consequence to carry out the order of the Board other than to cause preliminary plans and recommendations to be prepared by the consult ²³¹ ing engineers it had employed. Although there is perhaps enough in the record to indicate that the City Council on a prior occasion (despite the refusal of the Mayor to- recognize the action) had approved construction of a sewage plant on the site previously suggested by the consulting engineers and had subsequently authorized the Mayor to acquire the land needed for that purpose, no action was ever taken by the Mayor.

Nor was any construction contract or financing plan ever formulated or executed. Clearly the