40 Md. App. 244 | Md. Ct. Spec. App. | 1978
delivered the opinion of the Court.
The appellant, the Board of County Commissioners of St. Mary’s County (Board) is composed of five members.
The owner appealed. On 15 July 1977, in the Circuit Court for St. Mary’s County, Judge Jacob S. Levin entered an order which reversed the decision of the Board and directed it to grant the requested reclassification.
On 3 August 1977, the Board again met. Four of the Board’s five members, Commissioners McKay, Millison, Dean and Parlett, were present. The minutes of this meeting show that when the matter of the Circuit Court’s order directing reclassification was to be considered, Commissioner Millison excused himself from the meeting “because of possible conflict of interest.” Commissioner McKay “offered to provide the applicant with a letter stating that he would have no business interest in the property in question for the remainder of his term as County Commissioner if it would help his cause.” Commissioner Parlett made a motion to appeal the Circuit Court’s decision. Commissioner Dean seconded the motion, and he and Commissioner Parlett voted in its favor. Commissioner McKay abstained. The facts that on 8 September 1976 Commissioner McKay disqualified himself because of a conflict of interest from participation in the hearing on the application for rezoning, that on 21 October 1976 he did not vote on that application, and that his statement on 3 August 1977 did not clearly indicate that his conflict of interest had terminated, establish that his reason for abstaining from the vote to appeal was his disqualification because of conflict of interest.
In this Court the owner filed a motion to dismiss the appeal. He contends that because Commissioner McKay had disqualified himself because of a conflict of interest, he was incompetent to act even though he was physically present when the vote to appeal was taken. As a result, he asserts,
The question of whether a quorum must be constituted of persons competent to act was considered by the Court of Appeals in Hagerstown Furniture Co. v. Baker.
This rule, applied in Maryland to private corporations, has generally been applied elsewhere
The Code of Public Local Laws of St. Mary’s County, § 16 (a),
Here, two members of a five member Board were incompetent to act because they disqualified themselves on the ground of conflict of interest. Had the three members of the Board competent to vote on the question of whether to appeal been present, there would have been a quorum. Because only two competent members were present, however, a quorum did not exist. In the absence of a quorum, the vote on the motion to appeal was void. Accordingly, we shall dismiss the appeal.
Appeal dismissed.
Costs to be paid by appellant.
. St. Mary’s County, Md. Code of Public Local Laws, § 16 (a) (1965,1974 Supp.).
. 158 Md. 574, 149 A. 556 (1930).
. 158 Md. at 585-86, 149 A. at 561-62.
. See also Valle v. Pressman, 229 Md. 591, 605, 185 A. 2d 368, 377 (1962) (concurring opinion).
. But see City of Alamo Heights v. Gerety, 264 S.W.2d 778, 779-80 (Tex. Civ. App. 1954).
. 4 E. McQuillin, The Law of Municipal Corporations § 13.35a at 533 (3d ed. rev. vol. 1968); 2 J. Dillon, Commentaries on the Law of Municipal Corporations §§ 521, 524 (5th ed. 1911).
. 2 W. Fletcher, Cyclopedia of the Law of Private Corporations § 426 at 280-81 (rev. vol. 1969).
. Zeiler v. Central Ry., 84 Md. 304, 35 A. 932 (1896), relied upon bv the Board, is inapposite. In that case, the Court of Appeals neither considered nor decided the question, raised here, of whether a person present but incompetent to act can serve as a constituent part of a quorum.
. St. Mary’s County, Md. Code of Public Local Laws § 16 (a) (1965,1974 Supp.).
. Gemeny v. Prince George’s County, 264 Md. 85, 88-89, 285 A. 2d 602, 604 (1972); Murdoch v. Strange, 99 Md. 89, 110, 57 A. 628, 630 (1904).
. Md. Rule 1035 b 1.