Miller v. County Commissioners of Carroll County & Grier

Bruñe, C. J., delivered the opinion of the Court. Richard K. Miller, et ah, residents and taxpayers of Carroll County, appeal from a decree dated August 31, 1960, dismissing their bill of complaint filed July 22, 1959, in which they sought a declaratory decree declaring null and void both a Resolution of the Board of County Commissioners of Carroll County (the Commissioners) creating the position of “Technical Assistant to the Commissioners” and the appointment of George A. Grier to that post. In addition to the declaratory relief so sought the appellants prayed that the Commissioners and Grier, the appellees, be preliminarily and permanently enjoined from effectuating any of the provisions of the Resolution and from paying to Grier out of public funds, or Grier’s receiving from such funds, any of the salary stipulated in the Resolution. As a final prayer the appellants sought “such other and further relief as the nature of their cause may warrant or require.” Under this prayer they now seek a decree requiring Grier to repay to the County all amounts paid to him as salary on the ground that such amounts were illegally paid.

The events leading up to the filing of the appellants’ bill are clear and undisputed, though the motives behind the Commissioners’ actions are viewed differently by the appellants and the appellees. This case seems to be a by-product of the processes of change and transition which often accompany the spread of suburban population and industrialization into communities which have previously been predominantly agricultural. As we read this record, we find the Commissioners well aware of their own limitations in dealing with such problems and of their need for expert advice and assistance in meeting them. Grier was the man whom they selected as well qualified to give them such help.

Their overall purpose impresses us as entirely proper; their methods of accomplishing the early appointment of Grier are the target of ¹⁰⁹ strong attacks by the appellants and they present serious problems. The present case grows out of Ch. 304 of the Acts of 1959, approved April 3 and effective June 1 of that year. This Act was proposed by a bill introduced by the Senator from Carroll County at the request of the Commissioners. It repealed Section 45 B of the Public Local Laws of Carroll County, enacted in 1957, providing for the appointment of a county manager and enacted a new Section 45 B in lieu thereof reading in part as follows: “The County Commissioners of Carroll County are hereby authorized to appoint an Executive or Administrative Assistant to the County Commissioners, who shall receive such compensation and have such powers and duties as shall be determined and prescribed by said Commissioners.

His term of office shall not extend beyond the term of the Board making the appointment, but he shall be eligible to reappointment * * *. The person so selected shall be a registered voter and taxpayer in Carroll County.” (Italics supplied.) The new section further provides that the person appointed shall take the constitutional oath of office, that he may be required to give bond for the faithful performance of his duties and that his services may be terminated by the Commissioners on two months’ written notice. Why the Commissioners thought this local statute necessary in the light of the general powers conferred upon County Commissioners by Code (1957), Art. 25, §§ 1 and 3, (under which they later undertook to act), is not readily apparent. Nor is the reason for inserting the voter and taxpayer requirement, for at the very time Ch. 304 was going through the legislative process the Commissioners were considering or negotiating for Grier’s employment, though they knew him to be a resident of Harford County and neither a voter nor a taxpayer of Carroll County.

Sometime in March of 1959 the Commissioners contacted ¹¹⁰ Grier and discussed his duties in Harford County and whether he would be willing to leave his position in Harford County for a position with similar duties in Carroll County. As a result, on April 15, 1959, Grier sent the County Commissioners the following letter: “You will remember that I indicated last week that a letter would be forthcoming from me setting forth my understanding of the position for which your Board has asked me to consider. You will find below a summary of this understanding: 1. The position would generally be known as ‘Executive Assistant to the Board of County Commissioners.’ 2.

The position would carry with it a responsibility solely to the Board of County Commissioners of Carroll County. 3. General duties would include the following: (a) supervise the general administration of the County Commissioners’ office. (b) recommend official policies for consideration and adoption by the County Commissioners. (c) upon adoption of any such policies by the County Commissioners, the position would carry with it the responsibility to see that these policies were executed by all agencies, departments or personnel, accountable to the County Commissioners.

(d) to provide such studies as may be necessary to maintain an efficient county governmental unit. (e) to maintain an amicable and satisfactory relationship with Federal, State, and other County agencies to insure proper coordination of county transactions. (f) to maintain an adequate public relations program. ¹¹¹ 4. At the appropriate time to aid in the guidance of any Planning and Zoning Commission toward a good basic planning program for Carroll County. 5.

At the appropriate time to aid in the formulation of any Sanitary Districts as may be necessary. 6. Aside from recommending such policies as noted in (3b) above to aid the County Roads Engineer in developing a well balanced and economical program for road construction and maintenance. 7. The position will pay $12,000 annually and begin approximately June 1, 1959. It is also my understanding that I would become a resident of Carroll County and that the Board of County Commissioners presently has proper authority for filling such position, the duties of which are mentioned above. * * *” This letter was answered by the Commissioners by letter of April 17, 1959, in which it is stated that: “The Board took up the matter of your letter of April 15 this morning, and we believe you have about fully covered the substance of our conversation when you were here.

We accordingly agree to all the stipulations set forth by you, except that since the bill recently passed by the Legislature authorizing us to employ an administrative or executive assistant requires the appointee to be a voter and taxpayer of the county, we feel that temporarily you would have to use some other title. The bill referred to was Senate Bill No. 486, which becomes effective June 1st. Under Section 3 of Article 25 of the Code we believe we have the power to appoint necessary county employees, and therefore suggest that you use the title of “Technical Assistant to the County Commissioners”, or any other title that might be more satisfactory to you, so long as it does not by implication place you under the authority of Senate Bill No. ¹¹² 486 until you can meet the voting and residence qualifications. The Home Rule bill passed by the Legislature in 1947, which embodies Section 3 of Article 25, requires us to pass a resolution and then advertise the appointment and salary in one or more newspapers published in the County at least once a week for three weeks, and this all could be accomplished before June 1 so as to make your employment effective at that date.

We are willing to do this and would make the appointment for one year, with the understanding that a new contract will be negotiated as soon as you meet the qualifications for an Executive Assistant, and the period then to be covered by that contract would extend through the present term of office of the members of this Board. We are particularly pleased that you have indicated a willingness to become a Carroll Countian, and we look forward to having you with us about June 1. * * *” As a result of these negotiations and of some further discussion of salary, the Commissioners on May 4, 1959, adopted a “Proposed Resolution of the County Commissioners of Carroll County Appointing a Technical Assistant to the Commissioners and Fixing His Salary.” Pursuant to the requirements of Code (1957), Article 25, Section 3 (r), the Commissioners published notice of their “Proposed Resolution” to establish, under the powers conferred upon them by Section 3 (d) of that Article, the position of “Technical Assistant,” at a salary of $14,000 per annum. The proposed resolution outlined the duties of the position of “Technical Assistant” almost verbatim in the words of Grier’s letter of April 15. The resolution and notice also recited explicitly that “after appropriate inquiry, investigation, and negotiation, the County Commissioners of Carroll County have selected for such appointment a person whom they consider fully qualified to fill the position aforesaid, and desire to make such ¹¹³ appointment effective at the earliest possible time; * * *.” A hearing was held on the “Proposed Resolution” on June 1, 1959, at which time a number of residents and taxpayers of Carroll County appeared and protested its adoption.

Despite this opposition the Commissioners adopted it on June 9, 1959, and at that time appointed George A. Grier to the post. Carrying their complaints to court, the appellants on behalf of themselves and any other taxpayers who might join in the suit and pay their proportionate share of the costs, instituted, on July 22, 1959, the Bill of Complaint from the dismissal of which they now appeal. Within a month after the filing of this Bill the Commissioners purporting to act under the powers conferred upon them by Code (1957), Article 25, Section 1, appointed George A. Grier as a Supervisor of County Roads of Carroll County at a salary of $6,000 per year payable out of Roads Department funds, which salary was “to represent a proportionate part or share of his over-all salary of” fourteen thousand dollars per year. Pursuant to the power conferred upon them by Code (1957), Article 66 B, Sections 10-37, the Commissioners on August 10, 1959, passed an ordinance by which they established a Planning and Zoning Commission for Carroll County.

At the first meeting of the Planning and Zoning Commission, on August 13, 1959, George A. Grier was selected by the Commission, with the consent of the County Commissioners, all of whom were present at the meeting, to serve as Director of Planning at a salary of $6,000 per year, “effective August 24, 1959, and which salary [was] to be considered a part of his total compensation of $14,000.” On August 14, 1959, the Commissioners resolved that a study of the sanitary, water and housing needs of the County be made and that Grier was the man to do the job. For his work in this respect Grier was to receive a salary of $2,000, payable out of funds provided for this purpose, which salary also was to be considered a proportional part or share of his total salary of $14,000. Ten days after this last mentioned ¹¹⁴ appointment Grier commenced work as a “Technical Assistant to the County Commissioners.” The first questions of law which we shall consider are presented by the appellees’ demurrers and answers which challenged the sufficiency of the bill on the ground that a court of equity lacks jurisdiction to try title to public office and also denied that declaratory relief was appropriate. We think that the Chancellor correctly rejected both contentions.

As to trying title to public office, it is well established by many cases in this State, such as Carey v. Jackson, 165 Md. 472 , 169 A. 922 , that mandamus is the proper remedy to test the validity of such an appointment. However, where the validity of an appointment is a question, but not the primary question,—and the line may be a hard one to draw with precision'—the jurisdiction of equity has been upheld. The question of whether or not the action of a municipal corporation is ultra vires may be important, as we think it is here, with regard to the power of the Commissioners to create the office of “Technical Assistant.” The commissioners of a county can “exercise only the authority with which they have been expressly, or as a reasonable implication, invested by law;” Montgomery County v. Md.-Wash. Met.

District, 202 Md. 293, 303-304 , 96 A. 2d 353 , quoting from this Court’s opinion in County Com'rs of Frederick County v. Page, 163 Md. 619 , 164 A. 182 . Where it is alleged by a taxpayer that a municipal corporation has acted ultra vires and that such action injuriously affects his rights and property, a court of equity is a proper tribunal to restrain such action. Gloyd v. Talbott, 221 Md. 179, 182 , 156 A. 2d 665 ; McKaig v. Mayor & C. C. of Cumberland, 208 Md. 95, 102 , 116 A. 2d 384 ; Pressman v. D’Alesandro, 211 Md. 50, 54 , 125 A. 2d 35 ; Masson v. Reindollar, 193 Md. 683, 687-88 , 69 A. 2d 482 ; Fluker v. City of Union Point, 132 Ga. 568 , 64 S. E. 648 . This rule applies to such municipal corporations as counties.

Montgomery Co. v. Met. District, supra; Neuenschwander v. Wash. San. Co., 187 Md. 67 , 48 A. 2d 593 .

In view of our holding that equity has jurisdiction in this case, we think it clear that a court of equity may award de ¹¹⁵ claratory (as well as injunctive) relief, if such relief is appropriate; and we deem it to be so. Uniform Declaratory Judgments Act, Code (1957), Article 31 A, Section 2; Gloyd v. Talbott, supra; Pressman v. D’Alesandro, supra; Kirkwood v. Provident Savings Bank, 205 Md. 48 , 106 A. 2d 103 ; Bachman v. Lembach, 192 Md. 35 , 63 A. 2d 641 . We come next to the question whether the Commissioners in the instant case exceeded their