Anne Arundel County v. McDonough

O’Donnell, J., delivered the opinion of the Court. Singley, J., concurs in the result. Murphy, C. J., and Levine, J., dissent and Levine, J., filed a dissenting opinion in which Murphy, C. J., concurs at page 308 infra. The issues before us in this case pertain to the legality and regularity of a referendum, submitted to the electorate of Anne Arundel County on 41 amendments, adopted by the ²⁷³ County Council, when it enacted a comprehensive zoning ordinance for the County’s Fourth Tax Assessment District, affecting in particular acreage located within the median of Maryland Route 3, and properties abutting each side of that highway.

Maryland Route 3, running through the County from north to south, traverses portions of the Second, Third and Fourth Tax Assessment Districts. In the early 1950’s, the State Roads Commission converted what was originally a two-lane road to a four-lane separated thoroughfare. In this dualizing process the present southbound lanes were constructed some distance westward of the original highway, thus creating a median area, ranging in width from 50 to 500 feet — with a fairly typical width of 300 feet — which extends from property occupied by a Howard Johnson’s Restaurant (on the north), in the vicinity of New Cut Road, near Glen Burnie, to the county line (on the south), at the Patuxent River. Since the highway construction, older residences within the median have continued to be occupied; although several “sample” homes, used to advertise and sell prefabricated dwellings have been therein erected, no new residential construction has taken place in the median.

From the very nature of this enclave, there had been substantial commercial development within the median up until 1973, and the properties therein came to enjoy commercial zoning classifications. On May 24, 1973, Bill No. 59-73 was submitted to the County Council, proposing a comprehensive rezoning for the Fourth Tax Assessment District and the adoption and application of new zoning maps to the Alternate Zoning Regulations contained in the Anne Arundel County Code. The import of the Bill, as submitted, basically “down-zoned” the commercial properties located within the median to R1 (Residential) classifications; it proposed as well the down-grading of the commercial properties, along the eastern and western boundaries of Route 3 to R1 and RA (Residential Agricultural) classifications. 1 ²⁷⁴ Prior to the submission of the Bill, and prior to the release of the proposed legislation to the public on April 3, 1973, the County’s Office of Planning and Zoning, the sponsor of the legislation and the originators of the map revisions, conducted three public hearings within the affected district. Announcements of such meetings were placed in three local newspapers, the Villager, the Maryland Gazette and the Anne Arundel Times, all having a general circulation within the county.

Mrs. Marian J. McCoy, the County Planning and Zoning officer, in the lower court, gave testimony that a general announcement had as well been sent out “[t]o as many people that we could find from the tax records [so] that, if their property was affected, . .. they would basically know, at least as far as the suggested maps were concerned that they should take some interest in the process. . . . Basically, a notice went out advising [that] the property was being suggested from such-and-such a classification to such-and-such a classification, and that information was available at our office, including, if they wished, a list of what the permitted uses were in that particular classification.” (emphasis added). The reason for the proposed “down-zoning” of the properties, within the median, and along the Route 3 corridor, from commercial to residential, according to the testimony of Mrs. McCoy, was because “in the light of dangerous traffic conditions along Route 3, it would be in the best interests of the health, safety and general welfare of the County.” She further testified that the Planning Board “wanted to certainly not see any further commercialization along the Highway until something was done in order to correct what they considered to be a very dangerous condition due to the traffic and the accident rates that they became familiar with.” (emphasis added). After the public hearings conducted by the Office of Planning and Zoning, the comprehensive zoning ordinance, with accompanying maps — apparently unchanged as a result of the hearings — was submitted to the County ²⁷⁵ Council.

The Council conducted eight public hearings on the proposed legislation. As a result of those hearings, various councilmen proposed a total of 145 amendments to the Bill and its accompanying maps. Four additional public hearings were held by the Council on the proposed amendments, and on August 6, 1973, those 145 amendments to the comprehensive zoning plan and accompanying maps were adopted. As amended, Bill No. 59-73 was passed by the Anne Arundel County Council on August 20, 1973 and submitted to the then County Executive Joseph Alton.

Pursuant to § 405 (h) of the Anne Arundel County Charter, granting the county executive the right “to veto, in his discretion, ordinances of the County Council . . . and to return the same to the Council . .Mr. Alton, on August 30, exercised his veto prerogative as to 87 of the proposed 145 amendments, concurred in the remaining 58, and on August 31, 1973, returned Bill No. 59-73 to the Council. The Council sustained the executive’s veto as to 31 of the amendments it had adopted, and overrode the veto of the remaining 56. Thus, the proposed comprehensive zoning ordinance, as proposed in Bill No. 59-73, was finally enacted by the County Council on September 4, 1973, with 114 amendments and map changes. Disagreeing with the Council’s legislative wisdom, certain citizen groups and civic associations, undertaking to act pursuant to Section 308 of Article III of the Anne Arundel County Charter and Article XVI of the Constitution of Maryland, circulated petitions in the form required by Maryland Code (1957, 1971 Repl.

Vol.) Art. 33, § 23-3, and obtained the signatures of the requisite number of registered voters to bring to referendum 41 specifically selected amendments of the 114 adopted by the Council. 2 ²⁷⁶ The 41 amendments petitioned to referendum affected the zoning on 42 tracts of land. Twenty-six of the amendments (Nos. 39, 40, 41, 43, 44, 45, 46, 58, 80, 85, 86, 87, 88, 90, 91, 92, 96, 97, 100, 113, 136, 137, 140, 141, 143 and 145) related to properties wholly within the median strip between the roadways of Route 3; one amendment (No. 86) involved two properties, with the same ownership, one lying within the median strip and the other, opposite thereto, fronting on the westernmost side of the highway’s southbound lanes; nine amendments (Nos. 34, 42, 56, 59, 68, 72, 105, 106 and 144) pertained to properties fronting entirely on the westernmost right-of-way line of the southbound lanes and five of the amendments (Nos. 49, 55, 75, 77 and 79) had to do with properties fronting entirely on the easternmost right-of-way line of the highway’s northbound lanes. The last amendment on referendum (No. 73) involved the zoning of two contiguous properties — 10 miles distant from Route 3 — located on Brockridge Road, near Maryland City, in Laurel, but within the Fourth Tax Assessment District of Anne Arundel County. As introduced, the ordinance undertook to “down-zone” every commercially used property within the median to that of R1 (Residential).

Amendment No. 44 changed that proposed residential use to C2 (Commercial, office); amendments Nos. 46 and 140 changed such proposed use to a classification of C3 (General Commercial), as did amendment No. 80, for a portion of the tract covered by it. All the remainder of the amendments, as to properties within the median, changed the proposed residential classification to C4 (Highway Commercial). Thus, the amendments, as affecting the properties within the median, retained the zoning uses in effect prior to the introduction of the legislation. Pursuant to amendment No. 56, property on the west side of the highway, proposed for an RA (Residential Agricultural) classification, was changed to a Wl-B (Industrial Development) use; a Wl-B classification, proposed for another of the parcels on the west side of the highway, by amendment No. 144, was changed to C2 ²⁷⁷ (General Commercial).

Under amendments Nos. 34 and 72, a proposed R1 (Residential) classification was changed to R5 (Residential), for other lands abutting the westernmost side of the southbound highway lanes. The five properties fronting on the easternmost northbound lane of Route 3, proposed for RA (Residential Agricultural) classifications, by amendments Nos. 49, 55, 75, 77 and 79, were changed to that of C4 (Highway Commercial). The property in Laurel — 10 miles distant from Route 3 — classified as R5 (Residential) in the original ordinance, was changed by amendment No. 73 to that of Cl-A (Neighborhood Commercial). These amendments, as to properties outside the median, undertook as well to retain substantially the same zoning uses to which they had theretofore been entitled.

It must here be observed that both amendments Nos. 96 and 36 undertook to classify as C4 the property of the J. F. Johnson Lumber Co., located within the median. While amendment No. 96, which was petitioned to referendum, embraced as well four or five properties contiguous to the lumber company, amendment No. 36, not on referendum, related solely to that company’s property. Notwithstanding the results of the referendum as to amendment No. 96, the J. F. Johnson Lumber Co. obtained a judicial determination, unopposed by the County, that, pursuant to amendment No. 36, its property had acquired a C4 classification. 3 It was with this factual background that the County Council formulated the question to be submitted on referendum and certified it to the Board of Supervisors of Elections as “Question D.” The Supervisors adopted the wording of the question, as submitted, for inclusion as a ballot item on the voting machines for the general election to be held on November 5, 1974. The ballot question, ²⁷⁸ undertaking to submit to the voters all 41 amendments to the ordinance enacted by the Council was to read as follows: “QUESTION NO.

D REFERENDUM To rezone certain parcels of land in the median strip, the west side of the southbound lane and the east side of the northbound lane of Route 3; and to rezone one parcel of land on the west side of Brockridge Road near Ellen Street; all parcels of which are in the Fourth Assessment District and which were rezoned by virtue of amendments to Bill No. 59-73. FOR THE AMENDMENTS TO THE BILL AGAINST THE AMENDMENTS TO THE BILL As “Question D” however was actually placed on the voting machines, as a ballot label, the question, as worded, is followed by only the two words “FOR” and “AGAINST,” rather than giving the electorate the option to vote “FOR THE AMENDMENTS TO THE BILL” or “AGAINST THE AMENDMENTS TO THE BILL.” On October 4, 1974 — 32 days before the election — Thomas J. McDonough and his wife, the owners of property within the median to which amendment No. 113 related, together with 20 other owners of properties, both within and without the median, affected by 20 of the other amendments 4 (the appellees and cross-appellants here), filed a bill of complaint in the Circuit Court for Anne Arundel County against the Board of Supervisors of Elections (Supervisors), subsequently amended to include Anne Arundel County, Maryland, (the County), (the ²⁷⁹ appellants and cross-appellees here), which sought injunctive and declaratory relief. The complainants sought an injunction restraining the Supervisors from placing the 41 amendments and “Question D” on the ballot; they also sought a judgment declaring: (a) that Section 308, Article III of the Charter of Anne Arundel County was unconstitutional, as contrary to the provisions of Articles XVI and XI-A of the Constitution of Maryland, as well as the Express Powers Act, Code (1957, 1973 Repl. Vol.) Art. 25A; (b) that none of the provisions contained in Code (1957, 1971 Repl.

Vol.) Art. 33, §§ 23-1 through 23-11, purported to delegate or to permit the filing of a referendum petition with respect to an ordinance of the County Council of Anne Arundel County; (c) that the purported description of the amendments as proposed in “Question D” was “inapplicable, deceptive, and will result in an unfair and defective election upon the purported referendum;” (d) that all 41 of said amendments “may not be lumped together under one heading and subject to one vote for all 41 .. . zoning amendments as a group;” (e) that since the legislation purported to establish a comprehensive zoning map for the Fourth Assessment District and pertained to only a portion of the County, such referendum was being improperly addressed to the voters of the whole County, and (f) that the effect of such referendum would violate the complainants’ rights under § 40 of Article III of the Constitution of Maryland, Art. 23 of the Declaration of Rights, and the Fifth and Fourteenth Amendments to the Constitution of the United States. Because of the proximity of the scheduled general election, at the time the County was impleaded, and the mechanical and logistical problems attending the preparation of the voting machines (called to the court’s attention by the Attorney General), the lower court (Childs, J.), passed an order on October 17, 1974 postponing the trial until November 13, 1974, but providing therein that all issues were: “preserved for the court’s consideration and upon decision are to have the same force and effect as if heard and decided prior to . . . the election of November 5, 1974.” This ²⁸⁰ action by the trial court was in accord with our holdings in Tyler v. Secretary of State, 230 Md. 18 , 185 A. 2d 385 (1962) and in recognition of the complainants’ apprehension that their rights might be prejudiced by a post-election trial, since in Dutton v. Tawes, 225 Md. 484, 491 , 171 A. 2d 688, 690 (1961) this Court had “clearly recognized [the] difference between the effect given to modal provisions of the election laws before [an] election and the effect of the same provisions [when viewed] after election.” Though forewarned of the complainants’ objections, both legal and factual, no steps were taken to restate the content of “Question D.” During the calendar week prior to the election, the Supervisors' published in four newspapers of general circulation within the County, a specimen ballot as it would appear on the voting machines, including the text of “Question D.” 5 The Anne Arundel County League of Women Voters published a sample ballot in its official newspaper, undertaking to give an account of all candidates and referendum issues. Twenty-three thousand copies of the League’s newspaper were distributed to various post offices, banks, libraries and stores within the County. On October 15, 1974, Mr. Alton, as the out-going County Executive, upon his official stationery, mailed a personal letter to each taxpayer within the County, at addresses taken from County tax assessment records, and enclosed therein an “explanation” of the local questions.

In the letter he outlined the accomplishments of his administration, thanked the voters “for their support and thoughtful expressions of confidence in [him],” urged their support for Questions Nos. 1, E and F, 6 and exhorted the defeat of “Question D.” Enclosed with the letter was a card containing the Executive’s recommendations as to how to vote on the ²⁸¹ respective questions. The card, as to “Question D,” was as follows: Although the proponents of the referendum, in their circulated petitions, had set forth verbatim each of the 41 amendments — though illegible except with the use of a magnifying glass — neither the newspaper of the League of Women Voters, nor the Board of Supervisors of Elections, nor the County Executive undertook in any way to apprise the electorate of either the specific content or the nature of any one of the amendments. When the voters throughout Anne Arundel County went to the polls on November 5, 1974, they cast 36,656 votes “against” Question D, while 11,314 voters cast ballots “for” the question. The practical result of the voters’ choice was to negate the effect of the 41 amendments, which had rejected the zoning recommended by the Office of Zoning and Planning, as submitted in the original ordinance.

When the matter came before the Circuit Court for hearing, the chancellor (Wray, J.) pointed out that “ [p]ursuant to Article XI-A of the Maryland Constitution, the voters of Anne Arundel County adopted a Charter .. . Sec. 308 (a) provides that ‘The people of Anne Arundel County reserve to themselves the power known as “The Referendum”, by petition to have submitted to the registered voters ... any ordinance or part of any ordinance ....’” Declining to hold Sec. 308 unconstitutional, the lower court expressed the view: “Nowhere in this section, in the Charter, in an ordinance, in the Maryland Code, or in the Maryland Constitution is there set out any ²⁸² requirement of publication or other notice of the County’s local laws to the electorate so that the electorate may know that there is to be a referendum and have a reasonable chance to find what it is about. This is a fatal flaw. . .. Due process of law ‘is not confined to judicial proceedings, but extends to every case which may deprive a citizen of life, liberty, or property, whether the proceeding be judicial, administrative or executive in its nature,’ Ulman v. Baltimore, 72 Md. 587 (1890), at page 593.

The essence of due process is notice. The due process rights of the Complainants are not protected where there is no publication or other reasonable notice provision with respect to a referendum, so that reasonably well-informed voters may be assured. The procedural requirements of a law providing a referendum are mandatory where the attack upon it is made before an election, Dutton v. Tawes, 225 Md. 484 (1961). The Respondents can not be made to comply with mandatory procedural requirements with respect to publication and notice when the law affords no procedural requirements.

(Even if the rule were substantial compliance, there is no law against which to measure the Respondents’ acts to determine substantial compliance.) It follows that the result of the vote of the people of Anne Arundel County on 5 November 1974 on Question D is a nullity.” (footnotes omitted). A decree was entered on December 12, 1974 declaring the result of the vote on “Question D” to be “a nullity and of no effect” and ordering Anne Arundel County to “proceed administratively in accordance with ordinance [No.] 59-73 as enacted.” The County and the Supervisors filed an appeal; the complainant property-owners filed a cross-appeal. While the case was pending in the Court of Special Appeals, we granted certiorari pursuant to Code (1974), Courts and Judicial Proceedings Article, § 12-201. ²⁸³ In support of their contention that the chancellor was in error, the appellants assert that the provisions in Sections 16-6 (a) and (b), 23-1 (a), 8-5 (a) and 2-10 (a) in Art. 33 pertain to the publication and notice of local questions petitioned to referendum by county voters and that those provisions were gratified with respect to “Question D.” Alternatively, they argue, should such sections in Article 33 be inapplicable, that actual notice given to the electorate fully satisfied the rights of the complainants to “due process” of law. Collaterally, in urging us “to decide all of the legal issues raised below by the appellees,” they argue that the 41 amendments were properly submitted as a single ballot question, that the question as placed on the ballot “was sufficiently fair and informative,” that the issue was “properly submissible to the entire county,” and that even if the results of the election “down-zoned the complainants’ properties,” the appellees were not deprived of their property in violation of their constitutional rights.

The property owners, in their cross-appeal, point out that the chancellor “did not grant every part of [their] request for declaratory and other relief’ and here reassert each of the contentions raised in the trial court. At the threshold of these questions, we point out that “[t]he Referendum, broadly speaking, is the reservation by the people of a State, or local subdivision thereof, of the right to have submitted for their approval or rejection, under certain prescribed conditions, any law or part of a law passed by the law making body....” See Beall v. State, 131 Md. 669, 678 , 103 A. 99, 102 (1917), where the history of the right of referendum and the abuses it was designed to abolish were discussed. See also Board of Education of Frederick County v. Mayor & Aldermen of Frederick, 194 Md. 170, 177 , 69 A. 2d 912, 915 (1949). Ordinarily, a referendum is limited to legislative matters, although the adoption of a charter, charter amendments and local laws authorizing the issuance of bonds or other evidences of indebtedness clearly come within its ambit.

Rezoning, pursuant to a comprehensive plan, has been held to be a legislative function. Board of County Commissioners for ²⁸⁴ Prince George’s County v. Edmonds, 240 Md. 680, 684 , 215 A. 2d 209, 211 (1965); Board of County Commissioners of Prince George’s County v. Levitt & Sons, Inc., 235 Md. 151, 158 , 200 A. 2d 670, 674 (1964). Thus, it would appear — other considerations aside — that legislation, adopting a comprehensive zoning, generically should come within the scope of the right of referendum, to the extent that it might be legally invoked. In support of the chancellor’s reasoning, the property owners basically contend that Section 308 (a) of Article III of the Anne Arundel County Charter, whereby “the people of Anne Arundel County reserve[d] to themselves the power [of] ‘The Referendum’ ” transcends the power authorized by Article XI-A of the Constitution, as well as that contained within the Express Powers Act (Code, (1957, 1973 Repl.

Vol.) Article 25A) and is in conflict with Article XVI of the Maryland Constitution, limiting referenda by petition to “any Act, or part of any Act of the General Assembly.” From these premises, they argue that the provisions within Article 33, are limited in their application, as they relate to referenda, to those specifically provided for in Article XVI of the Constitution, to charter board questions or proposed charter amendments, both under Article XI-A of the Constitution, and to the borrowing of money or issuing of bonds or other evidences of indebtedness, within the provisions of the Express Powers Act, Article 25A, § 5 (P). Conceding, arguendo, the validity of Section 308 (a) of Article III of the County Charter, they further assert that there are no provisions within Article 33 which contain any requirement concerning the publication and notice to be given local ordinances petitioned to referendum. Lastly, they urge that should the provisions of Article 33 be applicable, they were not complied with as to the pre-election publication of notice required for a valid referendum, nor as to the wording of “Question D.” The appellants point out that the chancellor recognized the constitutionality of Section 308 (a) of Article III of the County Charter; that although Article XI-A “neither expressly requires nor prohibits the inclusion of a ²⁸⁵ referendum provision in the charter of a home rule county, a charter may nevertheless include such a provision,” and that upon the adoption of a charter, the right of referendum is implicitly retained in the people with respect to county local laws. From this premise, the appellants contend that the several references within Article 33 to “local questions” and “questions of local concern,” clearly demonstrate a legislative intent that the provisions of Article 33 are applicable to the referenda of all local questions, and that these procedural requirements concerning publication and notice were effective in connection with “Question D.” In Reeder v. Board of Supervisors of Elections, 269 Md. 261 , 305 A. 2d 132 (1973), a case involving the applicability of the residency requirements of Article 33 to an individual, who sought to register to vote in Queen Anne’s County on local issues, this Court held that county elections were within the scope of Article 33, and expressly noted that § § 16-6 (a) and 23-1 (a) were applicable to county certification of questions for the ballot.

Judge Barnes, there writing for the Court, stated: “The term ‘election’ is defined by Maryland Code (1957, 1971 Repl. Yol.) Art. 33, § l-l(a)(6), as follows: ‘ “Election” means the process by which voters of the State, or any county or city thereof, vote for any party or public officer pursuant to the laws of this State or the United States, any constitution or constitutional amendment, public law, public act or proposition and unless otherwise indicated shall include all elections, primary, general, special, local, congressional, presidential, or State-wide. It does not mean any municipal election other than in Baltimore City unless otherwise specifically provided for in this article.’ (Emphasis added) “This definition includes voters of ‘any county’ voting for any ‘public office’ as well as ‘local’ ²⁸⁶ elections. The argument of the appellant that county elections are excluded from the scope of Article 33 because they are ‘municipalities,’ and the only municipality included is Baltimore City, is clearly unsound in view of oie definition and the references in other sections of Article 33 to county elections and local elections.

See, e.g., Sections 4A-6 (a) (filing fees); 9-4 (filling local vacancies including county offices); 16-6(a) and 23-l(a) (county certification of questions for the ballot).” (emphasis in original) 269 Md. at 263-64 , 305 A. 2d at 134 . See also County Council v. Montgomery Ass’n, 274 Md. 52 , 333 A. 2d 596 (1975) where Article 33 was characterized as “a comprehensive State Election Code,” containing “detailed provisions covering every aspect of the electoral processes in Maryland,” and providing for the “administrative supervision of election procedures” and “the administrative supervision of elections on both a state-wide and a local level.” 274 Md. at 60-61 , 333 A. 2d at 601 . In resolving the question of the applicability of the provisions set forth in Article 33 as they affect a local referendum, it is not necessary for us here to pass upon the efficacy of § 308 (a) of Article III of the Anne Arundel County Charter, and we do not do so. We point out however that in Levering v. Board of Supervisors of Elections of Baltimore City, 129 Md. 335, 337 , 99 A. 360 (1916), our predecessors implicitly recognized that a provision in the City Charter could provide for the submission of referenda to the local voters, without specific authorization therefor contained in the State Constitution, or an act by the legislature.

In Levering , the Court, when faced with the validity of the inclusion of a referendum question involving the repeal of a Baltimore City ordinance, which had previously prohibited athletic events on Sundays, decided “that no authority existed, on the part of the Mayor and City Council [of Baltimore], or of the Supervisors of Election, to provide for the submission of the question ... at the general election of’ 1916, because the Mayor and City Council had not received permission from the legislature to submit such ²⁸⁷ a question to the public, and also, in the alternative to not receiving such legislative permission, that there was “[n]o specific grant of power ... to refer questions of that nature to the popular vote ... in the Baltimore City Charter. ” (emphasis added). The reasoning in Levering was acknowledged in Scull v. Montgomery Citizens League, 249 Md. 271 , 239 A. 2d 92 (1968), where this Court recognized that by a county charter provision, the people may reserve the right of referendum on public local laws enacted by its local legislative body, created pursuant to Article XI-A of the Constitution. Chief Judge Hammond, there writing for the Court, stated: “Section 6 of Art. II of the [Montgomery County] Charter gave a right of referendum, something Art. XI-A does not require in a charter. The people reserved the right to vote on public local laws on specified matters and on ‘(3) Any other public local law or any part of any other public local law not included under subsections (1) and (2) above.’ ” 249 Md. at 279 , 239 A. 2d at 96 .

See also Harford County v. Board of Supervisors of Elections, 272 Md. 33 , 321 A. 2d 151 (1974), where we noted that “[i]t is not uncommon for people to write into their basic charter a restriction upon the powers of their legislative body.” 272 Md. at 39 , 321 A. 2d at 154 . Section 16-6 (a) of Article 33 provides “[t]he ballots shall contain a condensed statement in understandable language of every constitutional amendment or other question to be submitted to the vote of the people at any election. It shall be sufficient in any case to print the legislative title, [or] a brief summary of the contents or purpose of the proposed amendment or referendum unless the act proposing the constitutional amendment or other question specifically provides the title to be used.” The subsection further provides, in pertinent part, that the Secretary of State “shall prepare and certify the form in which a constitutional amendment or question shall appear . . .,” and that “[t]he county commissioners, county council, or treasurer of ²⁸⁸ Baltimore City, as the case may be, shall prepare and certify to the boards [of election supervisors] the form in which local questions shall appear on the ballot . . .” (emphasis added). The subsection additionally provides that “[i]n the event [that] the title of the bill, ordinance or resolution, as the case may be, is one hundred words or less, the title shall be sufficient.

In the event the title exceeds one hundred words, a summary of the title containing not in excess of one hundred words shall be prepared and certified [by the county commissioners, county council or treasurer of Baltimore City] to the boards.” (emphasis added). Section 16-6 (b), as amended by Chapter 328 of the Laws of 1974, provides, in pertinent part, that “[l]ocal questions or referenda shall be designated by successive letters of the alphabet, rather than numerically. The county council, county commissioners or the treasurer of the City of Baltimore shall designate the alphabetical order of local questions or referenda.” 7 Section 23-1 (a) of the Article, as it pertains to the certification of questions, provides in pertinent part, that . .. “[i]f questions of local concern are to be submitted for approval to the vote of the people of a county or a municipality the same shall be certified to the boards [pursuant to Section 16-6] within said period [on or before the fourth Monday in July] by the county commissioners, county councils or treasurer of the City of Baltimore, as the case may be, and shall be advertised as herein provided [by Section 8-5] in the case of nominees for county or city offices.” (emphasis added). Section 8-5 (a) of Article 33, relating to the advertisement or publication of nominees provides that “[a]t the time of giving the notice of election required by § 2-10 [(a)] of this Article, each board shall cause to be published by one insertion in two or more newspapers published within each county, .. . the nominations to office which have been filed ²⁸⁹ with or certified to them under the provisions of this article. . . .” Section 2-10 (a), as amended by Chapter 190 of the Laws of 1974, provides that “[i]n the counties, each board shall give notice during the calendar week preceding any election of the time and place of the election by advertisements, ... in at least two newspapers of general circulation published in the county. . . .” (emphasis added).

Section 23-9 of Article 33, expressly applicable to those elections “at which laws are to be submitted to the voters under the provisions of Article XVI of the State Constitution,” requires the publication in newspapers of general circulation of the text of such measures. Since county and local elections have been held to come within the purview of Article 33, and that Article has been held to cover “every aspect of the electoral processes in Maryland” and election procedures, on both a state-wide and local level, we think it clear — assuming the validity of § 308 of Article III of the Anne Arundel County Charter — that referenda questions, including the approval or rejection of legislation enacted by county councils, in charter counties, come within the embrace of the procedures specified in that Article. Even though the Article contains no express reference to such a referendum, such a conclusion emanates from a reading of § § 16-6 (a), 23-1, 23-2 and § § 23-3 through 23-10. In § 16-6 (a), mandating that ballots “contain a condensed statement in understandable language” of every question “to be submitted to the vote of the people at any election,” the legislature clearly recognized that local officials, as distinguished from the Secretary of State, “shall prepare and certify” the form in which such local questions shall appear on the ballot.

The section also significantly refers to “billfs], ordinance[s] or resolution[s],” terms not customarily used in describing enactments of the General Assembly. Whereas § 23-1 (b) and § 23-2 each expressly refers to “[qjuestions arising under Article XIA of the Constitution of Maryland” (pertaining to charters), and §§ 23-3 through 23-10 expressly refer to petitions filed pursuant ²⁹⁰ to Article XVI of the Constitution, there is no such restriction in the language used in § 23-1 (a), where reference is freely made by the General Assembly to “questions of local concern ... to be submitted for approval to the vote of the people of a county, [etc.,]” without in any way modifying the nature of those “questions of local concern.” We think that by such delineation and the express language used, the General Assembly clearly undertook to separately identify those referenda, arising pursuant to Articles XI-A and XVI of the Constitution, from those arising upon “local questions,” “questions of local concern” and “ordinances,” and thereby clearly showed an intent, to bring within the embrace of the procedures specified in Article 33, the submission of such local questions as may be properly subject to a referendum. Contrary to the views expressed by the chancellor, we conclude that the “requirement of publication or other notice of the County's local laws to the electorate so that the electorate may know that there is to be a referendum and have a reasonable chance to find what it is about,” is supplied by the provisions in §§ 23-1 (a), and 16-6 (a) of Article 33, and the interplay of those sections with § 8-5 (a), as the latter relates to the advertisement of “questions of local concern,” as in the case of nominees for county offices. Though we disagree with the chancellor’s ratio decidendi, we shall, upon reasons to be herein set forth, concur in the conclusion reached by the lower court when it declared the results of the referendum on “Question D” to be “a nullity and of no effect.” The County Council purportedly acted pursuant to § § 16-6 (a) and 23-1 (a), when it prepared the form and contents of the referendum question and certified it to the Supervisors; in accordance with § 16-6 (b) the Council designated the question alphabetically as “Question D;” the Supervisors accepted the question, as certified, as a ballot item on the voting machines, after deleting the words “THE AMENDMENTS TO THE BILL,” as submitted with the Question.

The Supervisors then undertook to act pursuant to § 23-1 (a), as “in the case of nominees for county offices,” as ²⁹¹ provided in § § 8-5 (a) and 2-10 (a) when, during the calendar week preceding the election, they caused advertisements to be published in the four newspapers within the county. Such advertisements however did no more than publish the “make-up” of the question, as certified by the Council, and as it was to appear on the voting machines as “Question D.” It was conceded that at no time, nor in any manner, was either the text of ordinance No. 59-73, or the text of its 41 amendments, ever published. 8 (See Article 33, § 23-9, requiring the publication of the text of those enactments by the General Assembly brought to referendum under the provisions of Article XVI of the Constitution). The critical issues however, as we see them, concern a compliance with the provisions of § 16-6 (a) as to the wordage of “Question D” and whether the advertisements, limited to the verbiage of the question, gratified the requirement of sufficient notice by publication to the electorate as contemplated by § 23-1 (a). Presupposing, without deciding, (a) that a comprehensive zoning ordinance, or a portion thereof, may be the proper subject of a petition for referendum, (b) that such a referendum may be limited to the amendments to such an ordinance, without recitation of the provisions in the ordinance to which the amendments apply, (c) that 41 separate amendments, affecting property in different locations, may be combined to form a “single question” on referendum, and (d) that a referendum may be submitted to the voters of the entire county though its subject-matter is limited to properties within one tax assessment district, we shall limit our decision to an appraisal of the wording of “Question D” as it was submitted to the voters on the ballot, and whether or not its publication, by advertisements, prior to the election, permitted, in a meaningful manner, an intelligent decision, by an average voter, when he exercised ²⁹² his choice, in voting either “FOR” or “AGAINST” “Question D.” In its appraisal of compliance with the notice requirements contained in Article 33, this Court has clearly recognized the distinction between the effects of the failure to conform with such provisions when raised in pre-election litigation, as compared with the effect to be given those same provisions, when not strictly followed, and when challenged by litigation attacking the results of an election.

In County Commissioners of Montgomery County v. Henderson, 122 Md. 533 , 89 A. 858 (1914), a case involving a pre-election challenge to a special election to determine the question of a special levy and county bond issue for public improvements, this Court held that “[t]he provision of the statute, as to notice ... is mandatory and not merely directory,” that “[a]ll of the conditions prescribed should be strictly observed, because they are equally essential to the authority attempted to be conferred,” and that “[t]he effect of statutory requirements in cases of this kind as to time of notice by publication .. . and the terms of such provisions must be strictly complied with . . .” 122 Md. at 537 , 89 A. at 859-60 . Finding that the publication of the proposed ballot question was not in accordance with the requirements of the statute and a fatal defect, it was held that an injunction had properly issued enjoining the appellants from holding the special election. In Dutton v. Tawes, supra, Chapter 739 of the Acts of 1957 (then codified as Article 33, § 170) provided that the text of a referred law be published by “at least .. . one insertion in two or more newspapers within the several counties of the state and in all the daily newspapers published in Baltimore City. ..” Overlooking the requirements of that section, employees of the office of the Secretary of State undertook to follow the provisions set forth in former § 208 of Article 33, as enacted by Chapter 335 of the Acts of 1941, and published the referred law (a compact with the State of Virginia relating to the Potomac River) but once, in one newspaper, the jBaltimore Sun, having a general circulation throughout the state. The text of a number of proposed constitutional amendments, also ²⁹³ voted on in the same election in 1960, were published in 53 county newspapers and in three Baltimore City newspapers.

In holding that statutes, giving direction as to the mode and manner of conducting an election, are generally construed as directory when considered after an election, unless the deviation had a vital influence upon the election, Judge Hammond, writing for the Court, stated: “The Maryland cases, like those elsewhere, have held that there is a clearly recognized difference between the effect given to modal provisions of the election laws before election and the effect of the same provisions after election. Election officials of course should do what the law tells them to do and, before election, a court will require that they do their duty. Yet if the election has been held before court action is sought and it is not shown that the failure of the officials to follow the law has interfered with the full and fair expression of the will of the voters, that expressed choice will not be disturbed by the Courts. Wilkinson v. McGill, 192 Md. 387, 393 ; Graham v. Wellington, 121 Md. 656, 661 ; Seyboldt v. Mayor & C. C. of Mt.

Ranier, 130 Md. 69, 73 ; Carr v. Town of Hyattsville, 115 Md. 545, 549-550 . The latest statement of the rule in this Court was in Lexington Park Volunteer Fire Department, Inc. v. Robidoux, 218 Md. 195 , 200: ‘It is generally held that an election which has been honestly and fairly conducted will not be vitiated by mere failure to follow the statute precisely unless the result is shown to have been affected or the statute expressly states that such failure renders the election void. After the election is held, statutes giving direction as to the mode and manner of conducting it are generally construed as directory, unless the deviation from the prescribed forms of the law had so vital an influence as probably to have prevented a free and full expression of the popular will. The courts reason that it would be unjustifiable to defeat the ²⁹⁴ expressed will of the electorate if the irregularity did not frustrate or tend to prevent a free expression of the electors’ intention or otherwise mislead them.’ ” (emphasis added) 225 Md. at 491-92 , 171 A. 2d at 690-91 .

Since in Dutton the litigation instituted sought to enjoin the governor from proclaiming that the compact had been adopted by the electorate in the referendum, this Court, in a post-election review, held that the provisions in then § 170 of Article 33 were “directory,” and “that the record shows there was substantial, if not full, achievement of the purpose of the statute to acquaint the electorate fully with the law involved, and nothing to show that the deviation from the prescribed mode of acquainting, misled the voters or prevented, frustrated or interfered with a free, full and intelligent expression of the popular will.” 225 Md. at 493 , 171 A. 2d at 691 . In reaching this conclusion, the Court pointed out that wide-spread publicity had been given the compact question in both news articles and editorials, that numerous radio and television news broadcasts, including a purchased television program, had related to the proposed compact and that the official specimen ballot, which in fact contained a brief and accurate summary