Maryland Attorney General Opinion 96 OAG 093

Gen. 93] 93

COUNTIES

CODE REVISION – WHETHER REPEAL OF STATUTORY PROVISIONS
ALLOWING CITIZENS TO APPEAL COUNTY BRIDGE WORK
DECISIONS WOULD EFFECT A SUBSTANTIVE CHANGE IN THE
LAW

November 16, 2011

Kelly G. Dincau
Department of Legislative Services
Office of Policy Analysis

In connection with the ongoing code revision process, you have
requested our opinion whether Article 25, §§46 and 47 of the
Annotated Code of Maryland, which grant citizens the right to
appeal a decision of county commissioners to build or repair a
bridge, may be repealed without effecting a substantive change in
the law. Specifically, you are concerned that these two sections may
assign a nonjudicial function to the court, in violation of the
separation of powers doctrine expressed in Article 8 of the
Declaration of Rights, and that they would therefore be
unenforceable.

In our opinion, a repeal of these statutes would effect a
substantive change in the law. Sections 46 and 47 grant a remedy to
citizens who might otherwise lack standing to appeal a particular
bridge decision and trigger procedures under the Maryland Rules
that would not otherwise apply to such appeals. While an argument
can be made that the statutory language invites a circuit court to
exceed its judicial function, we cannot say with certainty that such
an argument would either apply or prevail in every case. We
therefore recommend that these sections not be repealed through the
code revision process.1

1
You also asked whether, if the portions of §§46 and 47 are
unconstitutional, they could be severed from the remainder of the bridge
provisions of Article 25. In light of our conclusion that the sections are
not clearly unconstitutional, we do not address this question.
94 [96 Op. Att’y

I

Article 25 Bridge Provisions

The two provisions that are the subject of your inquiry govern
a citizen’s appeal of a decision by county commissioners whether to
build or repair a bridge. These appeal provisions are best understood
in the context of the statutory scheme of which they are a part.
Under the Article 25 bridge statutes, the Legislature granted county
commissioners the power – now extended to all forms of county
government – to build and repair bridges, levy property taxes to
cover the expenses, and conduct proceedings on citizen applications
for the performance of those bridge works. The Legislature also
subjected these decisions concerning bridges to judicial review upon
an appeal by “any citizen.”

A. Origin

The General Assembly originally enacted the predecessor of
the Article 25 bridge provisions in 1856. Chapter 308, Laws of
Maryland 1856. Although that act has been recodified a number of
times in various sections of Article 25 of the Annotated Code of
Maryland, the statutory scheme, and particularly the appeal
provisions, have changed little in substance.2 See Annotated Code
of Maryland, Article 25, §§34 - 50A. These provisions apply in
every county, regardless of the form of local government.3

2
Chapter 308 included the general power to build or repair
bridges, now codified at Article 25, §26 for most counties. The rest of
Chapter 308 has been divided into the 21 separate sections now appearing
at Article 25, §34 et seq. In 1962, the Legislature enacted two changes to
the appeal procedures, neither of which is pertinent to this opinion.
Chapter 36, Laws of Maryland 1962.
3
As originally enacted, the statute applied to the “commissioners
of the several counties of this State.” Chapter 308, §1, Laws of Maryland
1856. Subsequent recodifications of the statute, enacted after the creation
of the two home rule methods of county government, retained the
reference to “county commissioners.” In 2010, the General Assembly
made §§34 through 37 and §§38 through 49 explicitly applicable to the
code home rule counties and every charter county, except Baltimore City.
Chapter 699, §2, Laws of Maryland 2010. Two sections omitted from that
law – §§37A and 37B – apply only to Cecil County and Dorchester
County. Other county-specific bridge provisions appear elsewhere in
(continued...)
Gen. 93] 95

B. Application to Construct or Repair a Bridge

The Article 25 bridge provisions set forth a procedure under
which a person may apply for the construction or repair of a bridge.
Article 25, §§34 - 45. An application for building or repairing a
bridge is to be made by petition to the governing body of a county.
§34. The applicant is to give public notice “in the same manner and
for the same length of time prescribed for applications for opening
roads.” §35.4 The county commissioners, after “they have heard the
reasons and evidences for and against the application” are to decide
the “case” under a standard of promoting the public convenience.
Id. If the commissioners grant the application, they “shall, at their
usual time for levying taxes, levy on the assessable property of the
county a sum sufficient to pay for the bridge and its embankment
and abutments.” §36. Sections 37 through 39 set forth procurement,
inspection, and payment procedures.

Special procedures apply to applications for the construction
or repair of a bridge over a geographical feature that divides adjacent
counties. Article 25, §§40 - 45. If both boards of commissioners
deem the petition “reasonable,” each board appoints three
“disinterested and discreet examiners.” §40. The examiners are then
to meet and determine such matters as “the expediency of building
or repairing the bridge, the place where, the plan, material and
relative portion of the cost each of the adjoining counties should
pay.” §41. If the examiners report the proposed bridge work “as
proper and expedient” to their respective county commissioners, the
commissioners are to direct the examiners to advertise for sealed
proposals to perform the work. §42. Sections 43 through 45
elaborate on procurement and cost allocation procedures.

3
(...continued)
Article 25. See, e.g., Article 25, §§10B and 10I, respectively addressing
the powers of Carroll County and St. Mary’s County.
4
The Legislature had enacted similar provisions with respect to
roads in 1853. Chapter 220, Laws of Maryland 1853; see also 93
Opinions of the Attorney General 103, 104-05 (2008) (summarizing
Article 25 roads provisions). The 1856 bridge statutes incorporated some
of those provisions by reference. When the Laws of Maryland were
codified in 1888, both sets of laws were placed in Article 25 along with
other statutes granting powers to county commissioners.
96 [96 Op. Att’y

C. Appeal under Sections 46 and 47

The appeal provisions of §§46 - 47 apply to a county bridge
work decision, regardless of whether the bridge is located in a single
county or links two counties.5 Section 46 confers on citizens of an
affected county the right to appeal the county’s decision and sets a
deadline for filing an appeal:

In all cases, upon representation in writing of
any citizen or citizens of any county in which
the county commissioners may determine to
build or repair any bridge or unite with an
adjoining county to build or repair any bridge
between the said adjoining counties filed
before a contract for building or repairing has
been made that the said determination of the
county commissioners is inexpedient, and
desiring an appeal from such determination,
the county commissioners shall grant such
appeal.

Article 25, §46.6

Section 47 allows the appellant access to county records
relating to the bridge work decision, provides for jurisdiction in the
circuit court, and states a standard of review:

Upon such appeal being taken, the county
commissioners shall afford the appellant, or
his counsel, with full opportunity to examine
the books and papers of the commissioners
relative to the matter. The circuit court shall

5
The captions added by legal publishers to some editions of the
code are therefore slightly misleading. In particular, the Michie captions
to §46 – “Between counties – Right of appeal” – and to §47 – “Between
counties – procedure on appeal” – suggest that the appeal provisions apply
only to decisions concerning bridges between two counties. The captions
are not part of the law. Article I, §18.
6
As enacted in 1856, the statute provided that, upon granting the
appeal, the county commissioners “shall cease all further proceedings until
the appeal is decided by the circuit court of the county....” Chapter 308,
§9, Laws of Maryland 1856. This provision was deleted in 1962. Chapter
36, Laws of Maryland 1962.
Gen. 93] 97

proceed to try and determine the matter
according to justice and right, with or without
the aid of a jury, as the parties may agree or
the court may order.

Article 25, §47.

II

Discussion

A. Whether Repeal of Sections 46 and 47 Would Effect a
Substantive Change

You ask whether a repeal of §§46 and 47 would effect a
substantive change in the law. In our opinion, these sections confer
standing on citizens who might otherwise lack it, and so a repeal
would effect such a change. Furthermore, the mere existence of a
statute granting a right to a judicial review of an administrative act
brings into play rules and procedures that would not otherwise
apply.7

1. Effect on Standing to Challenge a Decision to
Construct or Repair a Bridge

Under the common law, a person’s standing to bring a judicial
action “generally depends on whether one is aggrieved, which means
whether a plaintiff has an interest such that he [or she] is personally
and specifically affected in a way different from . . . the public
generally.” Jones v. Prince George's County, 378 Md. 98, 118, 835
A.2d 632 (2003) (citations and some internal quotation marks
omitted). A taxpayer may show common law aggrievement by
alleging that the complained-of action “may injuriously affect the
taxpayer’s property,” 120 West Fayette Street, LLLP v. Mayor of
Baltimore, 407 Md. 253, 267, 964 A.2d 662 (2009), but a person’s
status as a citizen of the jurisdiction does not by itself meet the
aggrievement test. The common law, however, is subject to change

7
We have not undertaken to identify all of the possible substantive
effects of repeal. Particularly, we have not examined whether the various
counties have provisions that might govern a person’s appeal if §§46 and
47 were repealed.
98 [96 Op. Att’y

by the Legislature,8 which may confer standing on persons unable to
establish the requisite aggrievement. For example, Article 66B,
§4.08(a) grants standing to “any taxpayer” to appeal a zoning
decision of a municipal board of appeals, regardless of whether the
taxpayer is “aggrieved.” Boulden v. Mayor, 311 Md. 411, 414, 535
A.2d 477 (1988).

By enacting §46, the Legislature conferred standing on “any
citizen or citizens” of the county in question. So, while status as a
citizen would not necessarily suffice to establish aggrievement for
purposes of standing under the common law, that status would
suffice under §46. There do not appear to be other statutes that
would confer such broad standing in cases involving Article 25
bridge petitions. Thus, the repeal of §46 would change the law by
restricting standing for some county citizens.9

2. Effect on the Judicial Review of Administrative
Actions

The existence of a statutory remedy under Article 25 affects
whether other remedies are available and hence would also affect the
procedure governing judicial review.

a. Effect of Article 25 Remedy on Other Remedies

The existence of the Article 25 appeal provisions effectively
precludes a petitioner from seeking judicial review through a
declaratory judgment or mandamus action. The Declaratory
Judgment Act provides: “if a statute provides a special form of
remedy for a specific type of case, that statutory remedy shall be
followed in lieu of a proceeding [under the Act].” Annotated Code
of Maryland, Courts & Judicial Proceedings Article (“CJ”), §3-
409(b). Similarly, the remedy of mandamus is available only if there
is no statutory provision for judicial review. Dep't of Health v.
Walker, 238 Md. 512, 522-23, 209 A.2d 555 (1965); see also

8
Maryland Declaration of Rights, Article 5.
9
In 93 Opinions of the Attorney General 103 (2008), we concluded
that other provisions of Article 25 that authorize county commissioners to
take various actions as to county roads were not implicitly repealed by the
enactment of Article 66B, which grants land use powers to certain
counties. That opinion noted that a provision allowing a person to request
the opening, alteration, or closure of a public road was not duplicated in
Article 66B. Id. at 112-13.
Gen. 93] 99

Goodwich v. Nolan, 343 Md. 130, 146, 680 A.2d 1040 (1996)
(before a court “grant[s] a writ of mandamus to review discretionary
acts, there must be both a lack of an available procedure for
obtaining review and an allegation that the action complained of is
illegal, arbitrary, capricious or unreasonable”). That principle
existed before the Article 25 bridge provisions were enacted, and the
Court of Appeals applied it in the one case in which it has discussed
the Article 25 appeal provisions. See Bembe v. County
Commissioners of Anne Arundel County, 94 Md. 330, 51 A. 183
(1902).

Bembe involved an appeal of an equity court’s dismissal of a
petition for a writ of mandamus to compel county commissioners to
repair an inoperable drawbridge. The Court addressed “the single
question as to whether there is an adequate legal remedy for the
redress of the wrong complained of....” 94 Md. at 331. The Court
held that the bridge application and appeal procedures provided an
adequate legal remedy:

Thus the statute in explicit terms gives to the
[petitioners] an adequate and complete
remedy, adapted to the precise question of
which they complain and moulded by the
legislature to fit the exact circumstances of the
case. Should a Court of law upon an
application for a writ of mandamus undertake
to order the County Commissioners to repair
the bridge it could only do so by deliberately
disregarding and repudiating the statutory
remedy especially provided to meet just the
contingency which is here presented. In the
face of this specific remedy neither the Court
below nor this Court on appeal could ....
undertake to interpose by the writ of
mandamus, and thereby deprive the Circuit
Court of the clearly defined appellate
jurisdiction exclusively conferred upon it.

Id. at 334.10

10
The decision in Bembe was consistent with the effect that the
Court had accorded to statutes providing for review of road decisions. In
1848, for instance, the Court addressed a case in which the petitioner had
(continued...)
100 [96 Op. Att’y

When discussing the availability of mandamus in other
contexts, the Court of Appeals has, consistently with the holding in
Bembe, cited the Article 25 bridge provisions as an example of a
statutory remedy that precludes the remedy of mandamus. See
Giessman v. County Commissioners, 185 Md. 350, 363, 44 A.2d 862
(1945); County Comm'rs of Carroll County v. Rickell, 146 Md. 463,
470, 126 A. 711 (1924); Commissioners of Anne Arundel County v.
Baltimore Sugar Refining Co., 99 Md. 481, 488, 58 A. 211 (1904);
Miles v. Stevenson, 80 Md. 358, 367, 30 A. 646 (1894).

A repeal of §§46 and 47 would thus remove the bar those
sections pose to a person’s pursuit of judicial review under the
mandamus and declaratory judgment statutes and rules.

b. Filing Deadline and Content of the Petition for
Review

Each mode of seeking judicial review has “domino-type
consequences.” Thompson v. State Farm Ins. Co., 196 Md. App.
235, 250, 9 A.3d 112 (2011). Those consequences depend on
whether the right to judicial review is granted by statute and, if not,
on whether the decision in question was quasi-judicial in nature or
legislative in nature. Among other consequences, a repeal of the
Article 25 appeal provisions would change the applicable deadline
and the content required of a citizen’s initial filing.

When, as in this case, a statute provides for judicial review,
Maryland Rules 7-201 et seq. govern procedure in the circuit court.
Under §46, an appeal must be filed “before a contract for building
or repairing has been made...,” and a citizen need only submit a

10
(...continued)
requested that the court enjoin Baltimore City from widening a certain
street. Methodist Protestant Church v. Mayor and City Council, 6 Gill
391 (1848). An act applicable to Baltimore City then provided for appeals
by interested persons to the Baltimore City Court. The Court of Appeals
held that the petitioner’s action was barred by the statutory remedy
because the “complainant ... could, in the mode prescribed by the
[statute], by an appeal to the City Court ..., have been amply protected and
redressed against all the illegality and injustice of which it now
complains.” Id. at 400; see also Hazlehurst v. Baltimore, 37 Md. 199,
220-21 (1872) (“where an appeal is given by law ... the legality and
regularity of the [commissioners’] proceedings, are open for review on
that appeal, and redress on such grounds must be sought in that mode
only”).
Gen. 93] 101

representation that the “determination ... is inexpedient” and that the
citizen “desir[es] an appeal.” Rule 7-203(a) incorporates the
applicable statutory filing deadline and thus makes the §46 deadline
applicable. Rule 7-202, like §46, only requires the petitioner to
provide basic information; neither provision requires the petitioner
to allege a factual basis for the appeal or identify the issues to be
raised. 11

These procedures, among others,12 would change if the Article
25 appeal provisions were repealed. If the decision were deemed
quasi-judicial in nature, the “administrative mandamus” rules at
Maryland Rules 7-401 et seq. would apply. Rule 7-402(a), by
incorporating the timing requirements of Rule 7-203, sets a deadline
within 30 days after various events that pertain to the issuance of the
decision. None of those events is keyed to the formation of a
contract for bridge work. The content of the initial complaint would
not change, because Rule 7-402 incorporates the requirements of
Rule 7-202.

11
Rule 7-202(c) provides, in pertinent part:
The petition shall request judicial review, identify
the order or action of which review is sought, and
state whether the petitioner was a party to the
agency proceeding. If the petitioner was not a
party, the petition shall state the basis of the
petitioner's standing to seek judicial review. No
other allegations are necessary. ...
The relevant agency and other interested parties may file a similarly brief
response. Rule 7-204. Rule 7-206 provides for the filing of a record or
statement of the agency proceeding. Once the record has been filed, the
parties may submit memoranda outlining the relevant facts and their
respective contentions. Rule 7-207.
12
For example, §47 arguably entitles an appellant to greater access
to county records in some cases than might be available through discovery
or the Public Information Act. Its repeal could thus effect a substantive
change in the law on the accessibility of records pertaining to bridge
construction and repair.
102 [96 Op. Att’y

If the decision were deemed legislative in nature,13 the
petitioner’s options might include actions for injunctive relief
(subject to Rule 15-501 et seq., among others), declaratory relief
(subject to the Declaratory Judgment Act, CJ §§3-401 et seq. and
various rules), or mandamus (subject to CJ §§3-8B-01 and 02 and
Rule 15-701). See Talbot County, 415 Md. at 393 (explaining
methods by which a petitioner may seek the court’s exercise of its
inherent powers to review a legislative action); see also Wilson v.
Simms, 380 Md. 206, 223-24, 844 A.2d 412 (2004) (explaining that
“where the exercise of discretion is permitted, mandamus ordinarily
will not lie”); O'Brien v. Bd. of License Comm'rs, 199 Md. App. 563,
578-80, 23 A.3d 323 (2011) (distinguishing between “administrative
mandamus” and “traditional mandamus”). In each event, the filing
deadline would likely be governed by the common law doctrine of
laches. See, e.g., Ross v. Board of Elections, 387 Md. 649, 668-69,
876 A.2d 692 (2005); see also O'Brien, 199 Md. App. at 580 n.16
(stating the possibility that a “general statute of limitations” might
also apply to a traditional mandamus action). The formation of a
contract for bridge work might be relevant to a determination of
laches, but it would not necessarily be determinative. Furthermore,
a petitioner filing an original action for injunctive or declaratory
relief or a writ of mandamus would have to file a complaint meeting
the pleading requirements of Rule 2-303, notably “such statements
of facts as may be necessary to show the pleader’s entitlement to
relief....”

In sum, the repeal of the Article 25 appeal provisions would
take all bridge decisions out of the Chapter 200 rules in Title 7,
make the Chapter 400 rules applicable to quasi-judicial bridge
decisions, and put the legislative bridge decisions under a series of
other rules, all with various consequences.

13
When the decision maker has both quasi-judicial and legislative
powers, the basis that the decision-maker articulates for a decision will
likely govern whether it is considered quasi-judicial or legislative. The
line between the two categories is not always bright. As explained by the
Court of Appeals in the land use context, “[t]he greater a decision-maker's
reliance on specific facts relating to a parcel of land, the more likely that
the decision made is adjudicatory in nature.” Id. (citation and quotation
marks omitted). Talbot County v. Miles Point Prop., LLC, 415 Md. 372,
395, 2 A.3d 344 (2010). Conversely, “‘ [d]ecisions that are largely
predicated on general facts, and on issues of law and policy, are legislative
in nature.’” Id. A bridge decision in a particular case could thus fall into
either category.
Gen. 93] 103

B. Whether §§46 and 47 Delegate a Nonjudicial Function to the
Courts

You ask whether §§46 and 47 violate the separation of powers
principle set forth in Article 8 of the Maryland Declaration of
Rights. Article 8 provides:

That the Legislative, Executive and Judicial
powers of Government ought to be forever
separate and distinct from each other; and no
person exercising the functions of one of said
Departments shall assume or discharge the
duties of any other.

Under Article 8, courts “have no jurisdiction to perform a
nonjudicial function, and any enactment which attempts to confer
such a function [on them] is unconstitutional.” Duffy v. Conaway,
295 Md. 242, 254, 455 A.2d 955 (1983); see also Smigiel v.
Franchot, 410 Md. 302, 324-25, 978 A.2d 687 (2009); Schisler v.
State, 394 Md. 519, 549-585, 907 A.2d 175 (2006).

A grant of “unguided discretion, involving ... questions of
policy and expediency” is a legislative function that may not be
delegated to the judicial branch. Sugarloaf Citizens Assoc. v. Gudis,
319 Md. 558, 572, 573 A.2d 1325 (1990). In Sugarloaf, the Court
held that a county ethics provision empowering a circuit court to
void an improper action “if the court deems voiding the action to be
in the best ... interest of the public” violated the principle of
separation of powers. Id. The Court explained that the General
Assembly itself “could not validly confer on a court the power to
void legislation because the court thinks it is in the public interest to
do so” and that the county had therefore exceeded the powers
delegated to it by the General Assembly. Id. at 572-73; see also
Cromwell v. Jackson, 188 Md. 8, 25-26, 52 A.2d 79 (1947) (county
ordinance authorizing the circuit court to issue liquor licenses only
to a person “fit” to hold the license was unconstitutional because an
applicant’s fitness to hold a license was “a question of public policy
or expediency depending on many matters” and therefore “not a
judicial question”).

Similarly, in Department of Natural Resources v. Linchester
Sand & Gravel Corp., 274 Md. 211, 334 A.2d 514 (1975), the Court
held that a statute that allowed a court or jury to displace the
judgment of an administrative agency was unconstitutional. In that
case, the statute authorized an appeal and a de novo jury trial of the
104 [96 Op. Att’y

agency’s determination, free of the deferential standard of review
accorded to agency decisions under the Administrative Procedure
Act.14 274 Md. at 215. The appeal provision explicitly required the
court to assess reasonableness; it provided that the court could “set
aside or modify the determination” upon finding “ that the decision
of the board of review appealed from is an unreasonable exercise of
police power.” The Court described such a scope of review as “a
practice which would permit judges or jurors to substitute, on a de
novo basis, their discretion for that of the department's experts,” and
thereby “reduce this agency's power, in this field, as a practical
matter, to a nullity.” Id. at 228-29. The Court stated that “the circuit
court is constitutionally limited to an assessment of whether that
determination was based on evidence sufficiently substantial so that
the permit denial was not ‘arbitrary and capricious.’” Id. at 228.

On the other hand, a generally worded grant of judicial review
of an administrative decision may be implemented without offending
Article 8 if the scope of review is limited to a justiciable question,
such as the legality of the decision. For example, in Lamb v.
Hammond, 308 Md. 286, 291, 518 A.2d 1057 (1987), a statute
provided that the circuit courts had jurisdiction to hear appeals of
decisions made by boards of canvassers of elections. Rejecting a
contention that the statute conferred a non-judicial function on the
courts, the Court held that the legality of the board of canvassers’
decision in that case was justiciable. Similarly, in Cicala v.
Disability Review Board, 288 Md. 254, 261, 418 A.2d 205 (1980),
the Court construed a provision in the mandamus statute, which
allowed for trial by jury, not to entitle a petitioner to a new trial of
facts found by the agency. Instead, a court reviewing an agency
decision may only exercise its power to review legal questions,

14
See Annotated Code of Maryland, State Government Article,
§10-222(h); see also Commission on Medical Discipline v. Stillman, 291
Md. 390, 401, 435 A.2d 747 (1981) (courts may review administrative
actions for “arbitrariness, illegality, capriciousness, or unreasonableness”).
Subsequent to the Linchester decision, the General Assembly incorporated
the judicial review provisions of the Administrative Procedure Act as the
general standard to be applied for de novo judicial review of
administrative agency action. Annotated Code of Maryland, Article 1,
§32(a) (“the term ‘de novo’ means judicial review based upon an
administrative record and such additional evidence as would be authorized
by §10–222(f) and (g) of the State Government Article”). Excepted from
that section are cases from the Workers’ Compensation Commission, and
the Health Care Alternative Dispute Resolution Office, and certain cases
from the Maryland Insurance Administration. Article 1, §32(b).
Gen. 93] 105
including the question whether, from the record before the agency,
“a reasoning mind could have reasonably reached [the agency’s]
factual conclusion....” Id. That power is inherently judicial, and
“the separation of powers doctrine mandates that the legislature may
not divest the judiciary of [its] inherent powers.” Stillman, 291 Md.
at 401; see also Talbot County, 415 Md. at 394 (referring to the
courts’ inherent powers to address abuses of discretion); Smigiel v.
Franchot, 410 Md. 302, 324-25 (2009) (explaining the framework
for a court’s determination of justiciability).

The question, then, is whether the Article 25 appeal provisions
more closely resemble the statute at issue in Sugarloaf, which
attempted to confer nonjudicial powers on a court, or the statute in
Lamb, which provided an avenue for a petitioner to seek judicial
review and for the court to assess the justiciability of the questions
presented.

The language of §46 would appear to bring the appeal
provisions within the Sugarloaf Court’s admonition that “questions
involving ... expediency” are not judicial in nature. As noted above,
§46 permits a citizen to submit in writing to the county
commissioners that “the ... determination of the county
commissioners [to build or repair a bridge] is inexpedient, and [that
the citizen] desir[es] an appeal from such determination....”
(emphasis added). An argument can be made, however, that §46
merely prescribes the method of seeking judicial review, that §47
generally grants jurisdiction to a court to review “the matter,” does
not explicitly require the court to determine expediency, and is
ambiguous on that point when viewed in context.15 So viewed, both

15
The first step in statutory interpretation is gauging the clarity of
the words of the statute:
In construing statutes, we obviously begin with
the language of the statute. If that language, both
on its face and in context, is clear and
unambiguous, we need go no further.
Swinson v. Lords Landing Village Condo., 360 Md. 462, 478, 758 A.2d
1008 (2000). However, the plain language must be viewed within the
context of the statutory scheme to which it belongs, considering the
purpose, aim, or policy of the Legislature in enacting the statute. Lockshin
v. Semsker, 412 Md. 257, 987 A.2d 18 (2010). Then, “[i]n resolving [any]
ambiguities, a court considers the structure of the statute, how it relates to
other laws, its general purpose, and the relative rationality and legal effect
(continued...)
106 [96 Op. Att’y
sections can be construed to fall within the Lamb category and thus
to comply with Article 8. That argument follows.

The starting point is the language of the two sections, and,
particularly, of §47, which sets the scope of review without
explicitly incorporating the §46 reference to expediency. The appeal
procedure provided by §§46 and 47 is comprised of three steps.
Section 46 sets forth the first: a citizen’s “representation in writing”
to the commissioners that their determination to build or repair a
bridge is “inexpedient” and that the citizen wishes to appeal.
Section 47 then contains the next two steps: the commissioners are
to provide the citizen “with full opportunity to examine the books
and papers of the commissioners relative to the matter,” and the
circuit court is “to try and determine the matter according to justice
and right....” Section 47 does not explicitly foreclose the citizen
from raising issues, such as the issue of illegality, after the citizen’s
examination of the commissioners’ books. Likewise, in contrast to
the statutes addressed in Sugarloaf, Linchester, and Cromwell, §47
does not explicitly require the circuit court to reach questions of
public policy or expediency; rather, it merely requires the circuit
court to “try and determine the matter according to justice and
right....” Section 47 thus is ambiguous on the scope of the “matter”
to be addressed by the circuit court: the section might be interpreted
to direct the court’s review to a nonjusticiable issue, or it may simply
serve as a general grant of jurisdiction to review such issues as the
court finds justiciable.

The facial ambiguity of §47 persists when it is viewed in the
context of the larger statutory scheme, notably, the Article 25 grants
of power to county commissioners to determine when to repair and
build bridges. See Article 25, §§1-1, 26, and 35. In Walter v. Board
of County Comm'rs, 179 Md. 665, 22 A.2d 472 (1941), the Court,
addressing a challenge to a roads decision, discussed the relative
powers of the commissioners and the courts. Citing the Article 25,
§1 grant of powers to build and repair bridges and roads, the Court
emphasized that the Legislature had entrusted discretion to the
county commissioners, not the courts:

15
(...continued)
of various competing constructions.” 412 Md. at 274-78 (internal
citations omitted).
Gen. 93] 107
A consideration of the language of the
sections referred to is sufficient to
demonstrate that it was the legislative intent to
entrust to them judgment and discretion as to
when and under what circumstances and in
what order such repairs were to be made. If it
were otherwise an incongruous situation
would result, in that the Commissioners duly
elected by the people and charged with raising
money to repair the roads according to their
judgment and discretion would not be
permitted to do so, because taxables within the
county through proceedings of this character
would divest them of their judgment and
discretion in spending the money so raised for
repairs and thus divert it to roads which the
petitioner himself considered were more in
need of attention.

Id. at 669. Under the reasoning in Walter, the grant of discretionary
bridge powers in §§1-1, 26, and 35 makes ambiguous the reference
in §46 to an appeal of a decision deemed “inexpedient” by a citizen.

When “a statute is susceptible of two reasonable
interpretations, one of which would involve a decision as to its
constitutionality, the preferred construction is that which avoids the
determination of constitutionality.” R. A. Ponte Architects v.
Investors’ Alert, Inc., 382 Md. 689, 718, 857 A.2d 1 (2004) (citation
and quotation marks omitted); see also Koshko v. Haining, 398 Md.
404, 426, 921 A.2d 171 (2007). If the §47 grant of jurisdiction to
review “the matter” were to be construed to give the circuit court
only the power to address the expediency of the county’s decision,
the appeals procedures would unconstitutionally confer on the court
a nonjudicial power. Furthermore, so construed, the appeal
procedures, viewed by the Bembe Court as the petitioner’s sole
remedy, would also likely violate Article 8 by divesting the court of
its inherent power to review the action.

These constitutional questions can be avoided by construing
§47 as a general grant of jurisdiction, unqualified by the §46
requirements pertaining to the request to appeal, and enacted with
the likely purpose of requiring all bridge appeals to be filed before
the commissioners had contracted for the work. So construed, §47
would grant a circuit court the jurisdiction to determine the
108 [96 Op. Att’y
justiciability of the questions raised by the petitioner and decide the
ones within its powers. See, e.g., Lamb, 308 Md. at 293.

Statutes are also to be construed to avoid interpretations that
are “absurd, illogical, or incompatible with common sense.”
Lockshin, 412 Md. at 274-78. Treating the §46 requirement of a
written statement of inexpediency simply as a pro forma notice
requirement is workable; Rule 7-202 similarly provides that a
petition for judicial review need only include the request for appeal,
the order appealed from, and the person’s status as a party or basis
of standing. Under both §46 and Rule 7-202, the petitioner must file
the request for review before the decision maker is required to
produce the record and thus conceivably before the petitioner has
been able to identify the precise issues. It therefore is not illogical
to view §46 simply as a notice procedure triggering the
commissioners’ duty to produce documents and §47 simply as a
grant to the circuit court to exercise its inherent powers over any
justiciable issues subsequently presented to it. That interpretation is
consistent with Bembe, in which the Court held that the remedy
displaced mandamus. It is also consistent with the fact that when
the appeals provisions were enacted, the law was that matters of
“morality and expediency” were considered legislative and that the
courts would decline to address such questions. See Spencer v.
Dennis, 8 Gill 314, 317 (1849).

In short, the Article 25 appeal provisions can be construed to
confer upon a circuit court the jurisdiction to address a properly-filed
request for judicial review and determine the issues that are
justiciable. In our opinion, the Legislature’s use of the word
“inexpedient” in §46 does not make the jurisdiction granted in §47
so clearly unconstitutional as to warrant the repeal of these sections
through code revision.

III

Conclusion

The appeal procedures set forth in Article 25, §§46 and 47, are
old and apparently seldom used, but, in our view, they are not clearly
unconstitutional. Furthermore, they grant standing to persons who
would otherwise lack it and bring a petitioner’s request for judicial
review under Title 7, Chapter 200 of the Maryland Rules. In our
opinion, these sections cannot be repealed without effecting a
Gen. 93] 109
substantive change in the law. Accordingly, we recommend that
they not be repealed through the code revision process.

Douglas F. Gansler
Attorney General

Ann MacNeille
Assistant Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice