Thomas v. Howard County

Barnes, J., delivered the opinion of the Court. The Circuit Court for Howard County (Macgill, C. J.) on March 26, 1970, sustained, without leave to amend, a demurrer of the appellees and defendants below — Howard County, its County Council, its Chief Executive, its Director of Public Works, its Chief of the Bureau of Inspections and its Chief Inspector of the Bureau of Inspections, Licenses and Permits — to the bill of complaint filed by the appellants, Wilbur E. Ficke (an original plaintiff but who has withdrawn from this appeal), Robert Thomas and the Plumbers and Gasfitters U. A. Local Union No. 48 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Local Union No. 48) and dismissed the bill of complaint by a ⁴²⁴ decree signed and filed on August 27, 1970. The principal question in this appeal is whether the bill of complaint, on its face, alleges a cause of action. We have concluded that it does and shall reverse and remand the case for further proceedings.

The bill of complaint alleges that the two individual plaintiffs, Ficke and Thomas, “are residents and taxpayers” of Howard County, a Municipal' Corporation of the State of Maryland (County), and that they “own property in the County on which they pay County and State real property taxes in addition to taxes on their annual income * * *.” It is also alleged that they are registered journeymen plumbers duly licensed in Maryland in accordance with Code (1957), Art. 43, §§ 326, 333 and 336. They work at the plumbing trade in the County as well as other counties and in Baltimore City. They are members of Local Union No. 48. Because of their residency in the County, they receive from it water, sewer and sewage disposal services and their “health, welfare and comfort will be directly affected by the improper installation of sanitary waste lines, storm water lines, and acid waste lines and other plumbing systems by those unlicensed and unskilled in the plumbing trade” in violation of the Howard County Plumbing Code as well as of Code (1957), Art. 43, §§ 326 and 333.

They further allege that “as taxpayers they have a further direct and real inter est in the matter and controversy because of the real and substantial loss to Howard County of permit fees as a result of the lack of enforcement of the County Plumbing Code. . . .” It is also alleged that, as a further result, “their employment opportunities in Howard County are and will be lessened and impaired with the direct personal loss of wages” and, further, that as a result of the financial loss to their certified collective bargaining representative, Local Union No. 48, their voice and effectiveness in matters concerning wages, hours and other conditions of employment in the plumbing industry will be adversely affected as well as personal losses to them of employer contributions based on hours worked made ⁴²⁵ to pension, health and welfare funds in their behalf under collective bargaining agreements. In paragraph 2 of the bill of complaint Local Union No. 48 is described as an unincorporated labor organization under Section 7 of the Labor Management Relations Act of 1947 (29 U.S.C.A. 157) and is an association of individuals licensed to work at the plumbing trade and regularly doing business in the County. It is authorized to sue and be sued as an entity and on behalf of its members. Its members “are residents and taxpayers” in the County and regularly work at the plumbing trade in the County.

It has a “direct legal interest and stake” in the controversy and “will suffer direct and immediate financial injury” along with its members by the “inapplication and lack of enforcement” of the County Plumbing Code in that employment opportunities under collective bargaining agreements negotiated by it on behalf of its members “are being dissipated and impaired” in the County “resulting in a substantial loss to its members in wages, and, necessarily resulting in a direct loss of revenue” to Local Union No. 48 “of dues paid to it by its members based upon the number of man hours they work”; this financial loss will impair its functions and obligations to its members and they are “being adversely affected by the deliberate, willful and negligent lack of enforcement of the Howard County Plumbing Code.” Local Union No. 48 will suffer an infringement upon its certification under the Federal Statute with its statutory right to bargain collectively for its licensed journeymen plumbers in the County. In paragraph 3, the plaintiffs allege that they filed the suit “in behalf of themselves and all persons similarly situated.” After describing in paragraph 4 the various defendants and their respective relevant duties under the County Charter, the plaintiff's allege in paragraph 5 that the County Council in the exercise of powers granted by the County Charter, adopted Council Bill No. 19 in its 1969 Legislative Session (Legislative Day No. 10), which Bill [it was enacted on July 14, 1969] adopted by ref ⁴²⁶ erence the County Plumbing Code and Rules and Regulations governing plumbing and drainage work, dated January 1, 1969, which was printed by the County Central Services. The broad definitions of “Plumbing” and “Plumbing System” in Chapter 1 are then set forth in full. Paragraph 6 alleges that the Plumbing Code sets forth certain basic principles as follows: “ ‘The basic principles of this code are enunciated as basic goals in environmental sanitation worthy of accomplishment through properly designed, acceptably installed, and adequately maintained plumbing systems.

Some of the details of plumbing construction must vary, but the basic sanitary and safety principles are the same. The results desired and necessary to protect the health of the peoples are the same everywhere. Furthermore, as unforeseen situations arise which are not covered in the body of the Code, the principles shall serve to define the intent.’ ” Paragraphs 7, 8 and 9 of the bill of complaint are as follows: “7. That the Respondents are willfully, deliberately, negligently and knowingly exceeding the authority granted to them by the Charter of Howard County and the Ordinances and Resolutions of Howard County; and further that in so doing they are acting outside the scope of their granted authority in that they are permitting the laying of sanitary drainage lines (sanitary sewer drainage piping for the conveyance of fecal matter from water closets and for the drainage of urinals or fixtures having similar functions), and the laying of storm sewer drainage lines, all of which within the property line and in violation of the Howard County Plumb ⁴²⁷ ing Code adopted pursuant to Bill No. 19 aforesaid in that the work is not being performed under permit issued to a registered master plumber and by licensed journeymen plumbers and their apprentices, at the new General Electric plant construction job located and lying in the 6th Election District, 5th Precinct of Howard County, State of Maryland; and further, by a utility contractor not qualified to work at the plumbing business in Maryland as provided for in Article 43, Section 326, Annotated Code of Maryland; and further by permitting the work to be done by unqualified laborers and others in the employ of said utility contractor, rather than by licensed journeymen plumbers and their apprentices under the direction and control of a duly certified and registered master plumber as required by said Article 43, Sections 326, 333, Annotated Code of Maryland; and further, such action is detrimental to the health and welfare of the Complainants and other residents and taxpayers of the County. “8.

That the Complainants believe and therefore allege and aver that the Respondents are aware, or should be aware, that the General Electric plant, in addition to the sanitary drainage facilities and the Storm drainage facilities as aforesaid, and also in addition to potable water lines for plumbing fixtures, appliances and appurtenances, will have numerous lines for acid waste disposal systems, all of which if not installed by licensed journeymen plumbers under the responsible and expert supervision of a duly certified and registered master plumber, could and will result in a real and serious health hazard to the community arising through the negligent crossconnecting of sanitary lines, potable water lines, storm water lines and waste pipe lines, resulting in and creating conditions ⁴²⁸ whereby water (potable) lines may become contaminated with nonpotable water lines further resulting in serious and irreparable harm and damage epidemically affecting the health, welfare, comfort and safety of the community; and the pollution of streams and rivers with raw sewage, waste acid and other liquid wastes. “9. That the Complainants believe and therefore allege and aver that on or about the 25th day of September, 1969, the said Complainants’ representatives did meet with Melvin L. Klappenberger, Chief Inspector, Bureau of Inspections, Licenses and Permits, for the expressed purpose of bringing to the attention of this said County official the wrongs aforesaid; as well as to request that the Plumbing Code of Howard County be strictly enforced; and further, that the said Respondents did knowingly and deliberately and negligently refuse to apply and enforce said Code; and further the Complainants believe, allege and therefore aver that this deliberate and wilful refusal to enforce the Howard County Plumbing Code on the part of the Respondents has resulted in, and will continue to result in a serious health hazard as well as a substantial loss in revenue and funds to the County due to the officers, agents and employees of the County not issuing required permits when such work as aforesaid is being performed in the County, thus adversely affecting the tax rate of the said Complainants and each and every taxpayer similarly situated.” The plaintiffs prayed for (1) a mandatory injunction, both pendente lite and permanent, to require the defendants “to strictly enforce” the County Plumbing Code, “particularly with regard to the General Electric construction job aforesaid”; (2) a mandatory injunction that in order to enforce the Plumbing Code, they “reject ⁴²⁹ all completed and partially completed work” which violates any provision of the Plumbing Code and that they order the work to be installed in accordance with the Plumbing Code and “under a permit issued to a registered master plumber and carried out and performed by licensed journeymen plumbers and apprentices”; (3) a negative injunction restraining the defendants from “allowing construction and work such as aforesaid at the General Electric job, from being performed in the County without the required permits, and without being done by licensed journeymen plumbers and their apprentices under the supervision of a duly certified registered master plumber” and under permit issued to the master plumber by the County Bureau of Inspections, Licenses and Permits ; and (4) other and further relief. The defendants demurred to the bill of complaint on a number of grounds which may be summarized under three headings: (1) although a writ of mandamus is no't specifically prayed, the bill of complaint has the heading, “BILL OF COMPLAINT FOR MANDAMOUS [sic] AND INJUNCTION” and hence the action should have been at law; (2) the available administrative remedies have not been sought by appeal to the Board of Appeals; and (3) the action of the defendants, as County officials, in permitting plumbing work to be done on the General Electric site by non-registered plumbers was a discretionary act with which the Courts will not interfere. The Chancellor was of the opinion in his memorandum opinion of March 26, 1970, that none of the grounds of demurrer already mentioned had merit and suggested to counsel that the important question was in regard to the standing of the plaintiffs to maintain the suit, referring them to various opinions and withholding a ruling on the demurrer until counsel had an opportunity to submit memoranda or further arguments along the lines indicated.

Counsel apparently did this and on May 8, 1970, the Chancellor filed his second memorandum opinion indicating his opinion that the plaintiffs lacked the necessary ⁴³⁰ standing to maintain the suit. As we have indicated, a decree sustaining the bill of complaint, without leave to amend, and dismissing the bill of complaint and requiring the plaintiffs to pay the costs was signed and filed on August 27, 1970, from which the plaintiffs filed a timely appeal to this Court. We are of the opinion that the