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Mayor and City Council of Havre De Grace v. State Board of Health

Decided: March 19, 1964.


Three appeals in one record from the Circuit Court for Harford County; Day, C. J.

Brune, C. J., and Henderson, Prescott and Horney, JJ., and Duckett, J., Associate Judge of the Fifth Judicial Circuit, specially assigned. Horney, J., delivered the opinion of the Court.


In this action by the State Board of Health*fn1 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 authority

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

group) on the other side as to where the plant should be 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

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 ...

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