State Department of Health v. Walker

Oppenhbimer, J.,

filed the following dissenting opinion, in which Hornby and Sybbrt, JJ., concurred.

It is important that an individual shall have the right of judicial review when public officials are charged with having abused their discretionary power, even if the statutes give no such right. It is equally important that the state officials have full and fair opportunity, in the court proceedings, to explain their action. In this case, the State Department of Health, in my opinion, was improperly denied the right to show why it believed that the soil and geological conditions here involved precluded safe and proper operation of the desired installations. For this reason, I must dissent from the decision of the majority of my brethren.

The overall provision as to the soil and geological conditions is a part of the regulations governing private water supply and sewage disposal systems, duly promulgated by the Department under delegated legislative authority. The appellee was notified that because, in the judgment of the Department, this provision was operative, his applications were denied. There was substantial evidence before the lower court of the peculiar geological and soil features which Assateague Island presents. Dr. Prather, the State Commissioner of Health, referred to the effect of the ravages of storms on this long sandy barrier reef, whose highest elevation is 12 feet. Mr. Brown testified without objection that the Department was concerned because a number of installations had been built without properly issued permits from the local health department.

There was ample reason for Dr. Prather to ask the local au *525 thorities to send all applications to the Department’s central office lor review. In Board of Health v. Crew, 212 Md. 229, 233 , 129 A. 2d 115 (1957), we sustained an order for the abandonment of a well, issued by the Deputy State Health Officer for Harford County, after consultation with his superiors. Dr. Prather, -while familiar with the island, is not an expert in the area. His Department feels its responsibility to reduce to a minimum the possibility of any health hazard developing. Mr. Brown, Chief of the Bureau of Environmental Hygiene, on whose advice Dr. Prather relied in recommending the denial of the appellee’s applications, was not allowed by the court below to give the reasons for his opinion that the soil and geological conditions involved precluded a safe and proper operation of the desired installations.

Mr. Brown’s educational qualifications and his experience in sanitation are conceded. He has a degree in chemical engineering from the University of South Carolina, and a Master of Public Health degree from Johns Hopkins University. He was on the staff of the St. Louis Plealth Division for seven years and with the South Carolina Board of Plealth for six. He has been Chief of the Bureau of Environmental Hygiene in the Maryland Department of Health since July, 1951. He has made two personal inspections of the island, with staff and local health authorities. One of these visits was an “end to end” inspection of an area known as the Ocean Beach Subdivision. Two of the three parcels of land here involved in the applications are contiguous lots located in Section A of this subdivision; the third parcel, to which the second application pertains, is a 50-acre tract located on the west side of the island, apparently not within the Ocean Beach Subdivision. On his “end to end” inspection, Mr. Brown looked “at the development which existed then on the various parts of the subdivision, and areas in which we had indication there might be applications referred in the future. We noted in particular the low levels of the island on which this construction existed, and in several areas which gave actual indication of tidal wash and where there was water standing at the present time.” He testified he was familiar with the areas covered in both applications. Pie was not allowed to give the reasons for his opinion because he could not testify he had *526 stood on the properties specifically designated in the applications. This ruling of the lower court, in my opinion, was clearly erroneous, an abuse of its discretion, and highly-prejudicial to the State.

In applying the general principles which govern the admissibility of expert testimony to the trial court’s action in this case, in my opinion the majority has not taken into account the kind of testimony which Mr. Brown was prepared to offer. The question in this case is of a different kind than how an accident happened, [State, Use of Stickley v. Critzer, 230 Md. 286 , 186 A. 2d 586 (1962)], or whether a building had been constructed in compliance with plans and specifications, [Hammaker v. Schleigh, 157 Md. 652 , 147 Atl. 790 (1929)], or whether a non-expert can testify as to an individual’s sanity, [Doyle v. Rody, 180 Md. 471 , 25 A. 2d 457 (1942)]. It is true, as Judge Prescott said for the Court in Stickley ( 230 Md. at 290 ), that the opinion of even an extremely competent real estate appraiser as to the value of a certain tract of land would have little, if any, probative force if the expert had not seen the tract. The question here, however, is one of general sanitation, of soil and geological conditions on a low sandy wilderness, ravaged by wind and storm, and whether those conditions precluded the safe operation, from the point of view of the public health, of the sewage disposal system the appellee wished to install. Within this framework, the admissibility of the opinion of an admitted sanitation expert who had visited the surrounding area of the particular location did not depend on whether he had stood upon one precise spot in that location or another.

In another context, we set forth the considerations which, in my judgment, are applicable here, as follows:

“A witness is qualified to testify as an expert when he exhibits such a degree of knowledge as to make it appear that his opinion is of some value, whether such knowledge has been gained from observation or experience, standard books, maps of recognized authority, or any other reliable sources. The knowledge of an expert in any science or art would be extremely limited if it extended no further than inferences from *527 happenings within his own experience.” Casualty Ins. Co. v. Messenger, 181 Md. 295, 298-99 , 29 A. 2d 653 (1943).

Several cases in other jurisdictions illustrate the application of this principle to analogous situations. Experts in veterinary medicine, connected with the Department of Agriculture, who made a specialty of investigating animal diseases, were held competent to speak of certain districts in Texas as being infected with a certain disease, though they may never have visited those districts in person. Grayson v. Lynch, 163 U. S. 468 (1896). The Supreme Court said:

“In the nature of their business, in the correspondence of the department and in the investigation of such diseases, they would naturally become much better acquainted with the districts where such diseases originated or were prevalent, than if they had been merely local physicians and testified as to what came within their personal observation.” 163 U. S. at 480-81 .

The testimony of a properly qualified research geologist that chances for oil and gas in a 640-acre tract of land were not very good was held properly admissible, although the expert had only done geological work in the general area and examined the neighborhood of the tract involved. Schooler v. State, 175 S. W. 2d 664, 670-671 (Tex. Civ. App. 1943). See also Davis, Administrative Law Treatise, § 14.10 and Maguire and Hahesy, Requisite Proof of Basis for Expert, Opinion, 5 Vand. L. Rev. 432 (1952).

Factors such as the length of time since Mr. Brown had examined the conditions on the island and the nature of his examination went to the weight of his testimony, not to its admissibility. For the court below to make these factors a bar to his giving his testimony was a prejudgment of evidence which the court had not heard.

The exclusion of the testimony was prejudicial from another point of view. The decision of the Department had been attacked as arbitrary. The court below recognized that Dr. Prather, the Commissioner, “must rely upon the advice of his advisers * * * [n]ow, he has testified that he has been advised *528 by members of his department, and that knowledge which has been imparted to him by those advisers, of course, he is entitled to rely upon and to act upon.” It was essential for the Department to show what that advice was, and the reasons given for it, on the issue of whether or not the Department’s action had been arbitrary. The testimony of Mr. Brown, who was the chief advisor of the Department in the matter, was admissible if only for this purpose. The evidence of Dr. Waesche and Miss School-field went only to the specific tests called for by the regulations, not to the overall soil and geological conditions, as to which Mr. Brown had given his opinion to the head of the Department. It is a salutary rule of administrative law that a reviewing court, “in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.” Securities Comm’n v. Chenery Corp., 332 U. S. 194, 196-197 (1947). See also Davis, op. cit. §16.12. Here, the testimony of Mr. Brown was highly relevant to show why the agency had acted as it did.

The State, as much as the individual, is entitled to a day in court. This, in the present case, by reason of the judge’s ruling, it did not have. I would reverse the judgment and remand the case for a new trial.