Citizens Planning & Housing Ass'n v. County Executive

Eldridge, J.,

dissenting:

The majority opinion in this case is directly contrary to the principles regarding taxpayers’ standing to sue which this Court has consistently adhered to for over one hundred years.

In Baltimore v. Gill, 31 Md. 375, 394 (1869), our predecessors stated:

“It is certainly well settled that public wrongs cannot be redressed at the suit of individuals, who have no other interest in the matter than the rest of the public. Thus an individual cannot maintain a bill of injunction to prevent a public nuisance, unless he suffers thereby some special damage

The Court in Gill went on, however, to hold that the complainants there did suffer some “special damage” as taxpayers because, under the allegations, the unlawful act would result in an “increase of the burden of taxation upon their property situated within the city.” (Ibid.) See also Citizens Committee v. Co. Comm., 233 Md. 398, 400-404, 197 A. 2d 108 (1964); Ruark v. Engineers’ Union, 157 Md. 576, 588-590, 146 A. 797 (1929), and cases therein cited.

Moreover, merely being a taxpayer is not a sufficient basis for standing to attack the acts of one’s government on the ground that they are unlawful. “[N]or can taxpayers restrain official acts upon the mere ground that they are ultra vires.” Ruark v. Engineers’ Union, supra, 157 Md. at 588; Bauemschmidt v. Standard Oil Co., 153 Md. 647, 651, 139 A. 531 (1927). As this Court’s cases hold, one who bases his standing to challenge ultra vires governmental action upon the fact that he is a taxpayer, must be able to show that the governmental action results in pecuniary loss or increases his taxes. Kerpelman v. Bd. of Public Works, 261 Md. 436, 442-443, 276 A. 2d 56, cert. denied, 404 U. S. 858, 92 S. Ct. 109, 30 L.Ed.2d 100 (1971); Gordon v. City of Baltimore, 258 Md. 682, 688-689, 267 A. 2d 98 (1970); Stovall v. Secretary of State, 252 Md. 258, 263, 250 A. 2d 107 (1969); *347Murray, Etc. v. Comptroller, 241 Md. 383, 391, 216 A. 2d 897, cert. denied, 385 U. S. 816, 87 S. Ct. 36, 17 L.Ed.2d 55 (1966); Citizens Comm. v. County Comm’rs, supra, 233 Md. at 401-405; Ruark v. Engineers’ Union, supra, 157 Md. at 589-590.

In all of the cases relied on in the majority opinion where this Court held that the complainants had standing as taxpayers to challenge allegedly illegal governmental action, it was clear, or at least likely, that the government acts would result in losses of public money. The suit in Sun Cab Co. v. Cloud, 162 Md. 419, 422, 159 A. 922 (1932), was to prevent the government officials from holding an allegedly illegal referendum on a law because “the [plaintiff] taxpayers will be put to wrongful expense for the publication of the referendum and the printing of it on the ballots of the next general election . . . .” In Castle Farms, Etc. v. Lex. Mkt. Auth., 193 Md. 472, 478, 482, 67 A. 2d 490 (1949), the governmental action under attack was creation of a Baltimore City “instrumentality” and “public corporation” to “erect, remodel, extend, improve, equip, operate and maintain” the Lexington Market, and the Court pointed out that the City “presumably would incur some expense or loss in extricating itself and its property.” Also in that case, the plaintiffs had standing as “owners and claimants of rights in the market” and thus were entitled to “sue to protect their property rights.” (Id. at 482.) In Horace Mann League v. Board, 242 Md. 645, 220 A. 2d 51, cert. denied, 385 U. S. 97, 87 S. Ct. 317, 17 L.Ed.2d 195 (1966), the plaintiff taxpayers were contesting the expenditure of $2,500,000.00 in public money in the form of State grants to private colleges. In Gordon v. City of Baltimore, 258 Md. 682, 689, 267 A. 2d 98 (1970), this Court pointed out that the challenged transfer of books from the Peabody Institute to the Enoch Pratt Free Library would cost an additional $100,000.00 for salaries and would result in expenditures likely to exceed $1,000,000.00 to preserve the books, and the Court continued: “That these expenses are and will be borne by the City’s taxpayers, including Mr. Gordon, is beyond question.” In Thomas v. Howard County, 261 Md. 422, 430-431, 276 A. 2d 49 (1971), *348the alleged failure of county officials to enforce the plumbing code, about which the plaintiffs as taxpayers were complaining, resulted in a “substantial loss to the County of permit fees. . . .”

The present case is totally different from the above-cited decisions invoked by the majority opinion. Here, there are no allegations leading to the conclusion, or even the likelihood, that Baltimore County’s reorganization of the Office of Planning and Zoning will increase government expenditures or result in a loss of government funds. Under the allegations of the bill of complaint, and the letter from the County Administrative Officer to the Director of Planning which was incorporated in the bill of complaint, the only “reorganization” of the Office of Planning and Zoning was to merge or combine certain functions and sections so as to reduce the necessary personnel requirements by four positions. No operations or functions of the office itself were done away with. Instead, as the letter stated, “The effect of the reorganization will eliminate four positions.” Thus, the government action here, by reducing the county’s work force by four employees, and consequently reducing the amount the county would have to pay in salaries, resulted in a saving of public money. In this respect, the case is like Kerpelman v. Bd. of Public Works, supra, 261 Md. at 443, and Citizens Committee v. Co. Comm., supra, 233 Md. at 404, where in each case taxpayers were denied standing to challenge allegedly illegal government action because the likely effect of the government action was a net gain in public funds instead of a loss.

The only “damages” which the county’s reorganization of the Office of Planning and Zoning allegedly caused the individual plaintiffs as taxpayers was set forth in the bill of complaint as follows:

“As taxpayers of Baltimore County [plaintiffs were damaged] because said acts by the Defendants will make the Office less efficient in carrying out its functions and responsibilities, and this will result in an impairment of the property tax base of *349the County, therefore causing a prospective pecuniary loss incident to the increase in the amount of taxes the Plaintiffs and other such taxpayers will be constrained to pay.”

Thus, the sole basis for the allegation that the allegedly illegal act, namely a reduction in force, would cause an increase in the expenditure of plaintiffs’ tax money was that the governmental action would result in less efficiency. However, no specific facts were alleged to explain how the reorganization would result in less efficiency. The mere combining of certain government functions, resulting in four less employees, furnishes no basis for concluding that the government will in all likelihood be less efficient. If it does, any taxpayer will have standing to challenge any discharge of a government employee where the employee is not replaced, on the ground that the government entity will be less “efficient” and will thus cause an increase in his taxes, even though the discharged employee himself does not object.1

The subject case, in my opinion, is virtually indistinguishable from Stovall v. Secretary of State, supra, 252 Md. 258. In that case the State, purportedly acting pursuant to statute, abolished the Board of Trustees of Morgan State College and placed the responsibility for governing Morgan State College under the Board of Trustees of State Colleges, which board had previously governed the five other state colleges. Thus in Stovall, as in the case at bar, separate functions, previously under separate heads, were combined under a single authority, and certain positions were eliminated. The complainants in Stovall, claiming that they had standing as alumni of Morgan State College and also as taxpayers of the State of Maryland, brought suit to have the reorganization declared “null and void” and for injunctive relief, claiming that the *350reorganization was illegal because the statute authorizing it was “vague and indefinite,” and that, in any event, a contingency required by the statute had not occurred. Plaintiffs asserted that “the transfer of control has resulted in increased taxes.” (Id. at 265.) This Court, however, in an opinion by Judge McWilliams, flatly held that plaintiffs did not have standing as taxpayers to challenge the reorganization because the allegations of the bill of complaint “can neither support a conclusion nor necessarily imply that pecuniary loss or increased taxes have been alleged.” (Ibid.) Similarly, in the instant case, the paragraphs of the bill of complaint do not contain allegations of facts leading to the conclusion, or necessary implication, that pecuniary loss or increased taxes will result from the reorganization of the Baltimore County Office of Planning and Zoning.2

If we were to reconsider our prior decisions, overrule them, and frankly hold that any citizen of Maryland has standing to challenge an allegedly illegal action by the government of the jurisdiction of which he is a resident, such holding might have merit. But we should not reach this result by the fiction that in this case the plaintiffs’ tax money is being illegally expended when, in fact, the challenged governmental action obviously results in a saving of the plaintiffs’ tax money.

Judge O’Donnell authorizes me to state that he concurs in the views expressed herein.

. In this connection, it should be pointed out that there are an estimated 287,965 state, county and municipal government employees in Maryland. See The Maryland State Budget For The Fiscal Year Ending June 30, 1975, submitted to the General Assembly of Maryland in January 1974, Vol. I, at 214.

. The majority opinion in the subject case attempts to distinguish Stovall on the ground that in that case, the complainants took the position that they need not allege a pecuniary loss to them or an increase in taxes. However, this was only an alternative argument by complainants in Stovall. Complainants there alleged that they 'had standing on three separate grounds: (a) that they were alumni of Morgan State College (id. at 262); (b) that where an action is a “class action,” the complaining taxpayers need not allege pecuniary loss or increased taxation (id. at 263); (c) that “they have alleged pecuniary loss” (id. at 264). Thus, Stovall cannot be distinguished on the basis of the arguments made to the court by the taxpayers.