County Commissioners v. Supervisors of Elections

Niles, J., by special assignment, delivered the opinion of the Court. The question presented in these proceedings is whether a County is entitled, under the “Home Rule Amendment” of the State Constitution, to adopt a Charter providing for a prompt special election of the first County Council, or whether it is required to defer such election until the next quadrennial general election for State and County officers, and then to comply with all of the requirements for a general election. Specifically, the voters of Montgomery County on November 2, 1948 adopted a Charter in accordance with the procedure required by the Home Rule Amendment to Constitution, art. XIA.

Article IX of the Charter provided that the members of the new County Council should be nominated only upon petition, to be filed within 10 days after the Charter becomes law; and that a special election should take place on January 6, 1949. The appellants, who are four of the County Commissioners whose functions will be superseded by the new County Council, both in their corporate capacity, and individually as citizens and as taxpayers, sought, in the Circuit Court for Montgomery County, an injunction against the Supervisors of Elections of Montgomery County to prohibit them from holding the special election on January 6, 1949. The case was heard in the Circuit Court for Montgomery County by Chief Judge Woodward and Judges Prescott and Schnauffer, who, by a decree passed December 13,1948, sustained a demurrer to the bill of complaint and denied the injunction. From that decree an appeal was taken to this Court; and in view of the public importance of the case and the nearness of the date for the proposed election, the case was advanced on the docket, and heard on December 16, 1948.

On the same day, by ²⁰¹ an order per curiam, the decree of the Chancellors was affirmed, for reasons to be stated in an opinion to be filed thereafter; this opinion, although filed later, is written as of that date. There are no facts in dispute, ’and the appellants make no complaint that the Charter, as submitted to the voters of Montgomery County and as adopted by them, does not comply in all respects both with constitutional provisions and with statutory provisions, except for the single point that the provisions of the Charter for holding a special election on January 6, 1949 are invalid. In all other respects they concede, and we assume for the purposes of this case, that the Charter complies with the provisions of the Home Rule Amendment, and that the powers granted to the County Council and to the other officers of the proposed County government are in strict accord with the constitutional scheme provided for in the Home Rule Amendment. Furthermore, the appellants, as County Commissioners in office at the time of the adoption, have accepted office under the new Charter, and are exercising such powers as are confided to them during the interim period between December 2, 1948 when the Charter became effective, and the date when the new County Council is to take office.

It is their claim, however, that they are entitled to hold their offices as County Commissioners and as County Councilmen for a term of 4 years from the date of their election in 1948 and until successors to be elected in November 1950 shall qualify. The appellants contend that the provisions of the Charter respecting the special election are invalid, for the following reasons: 1. That they violate the “Quadrennial Elections Amendment” or “Fewer Elections Amendment” to the Constitution, Article XVII, which provides that “all elections” shall be held every fourth year after 1926; under that provision the next general election will not be held until 1952. 2. That they violate the provisions of the same Amendment by shortening the terms of the present County Com ²⁰² missioners to a period of less than four years. 3.

That they violate the “Home Rule Amendment” of the Constitution, Article XIA, and the Express Powers Act (Article 25A of the Code of Public General Laws) by assuming a power to hold an election when none is expressly given either to the voters or the government of the County. 4. That they violate Article 25A, section IA of the Code of Public General Laws, Acts of 1945, ch. 792, in that nominations and elections in the proposed special election for County Councilmen are not made as for members of the General Assembly. To these contentions the Supervisors of Elections answer: 1. That the election of the members of the first County Council is a special election to fill vacancies in newly created offices; that the Quadrennial Elections Amendment applies only to general elections, and does not prohibit the proposed special election. 2.

That whether or not the Charter shortens the terms of the present County Commissioners is not material and not an issue in this case. 3. That the holding of the contemplated special election does not violate the Home Rule Amendment, since power to hold the contemplated election is clearly implied by the Amendment itself. 4. That the method of nomination does not violate art. 25 A, sec. 1A, since there are no provisions in the general laws for filling vacancies in the membership of the General Assembly by election. The adoption of the Montgomery County Charter on November 2, 1948 was the result of long public debate and controversy, one part of which came before the Court recently in the case of Schneider v. Lansdale, 191 Md. 317 , 61 A. 2d 671 .

The Charter recites that it is adopted by the people of Montgomery County in accordance with art. XIA of the Constitution and the general laws of Maryland. It is a complete scheme of government for the affairs of the ²⁰³ County, and is composed of nine Articles, relating respectively to: the County Council, the Legislative Branch, the Executive Branch, the Departments of County Government, the Merit System, Expense and Capital Budgets, Centralized Purchasing, Miscellaneous Provisions, and Transitory Provisions. Article IX, on Transitory Provisions, is the only Article with which we are here concerned.

It provides for a special election for members of the first County Council on January 6, 1949 “in order that the Charter may become operative promptly after it becomes law.” To that end petitions for the nomination of candidates for the offices of members of the first County Council shall be filed not later than the tenth day after the Charter becomes law, i. e., December 12, 1948. The same Article provides that the terms of the members of the first County Council shall commence on the Monday following their election, and that “in order to place the election of members of the County Council on the quadrennial basis” provided in the Quadrennial Elections Amendment, Article XVII, of the Maryland Constitution, they shall expire at such time as the successors elected at the next quadrennial election qualify and take office, i. e., November 1950. To provide for government during the period from December 2, 1948 until the assumption of its duties by the County Council, it is provided that the five County Commissioners in office at the time that the Charter is adopted shall hold office and exercise their present powers, and shall constitute the County Council, until the members of the first elected County Council take office. Section 5 of the Article provides that Articles I, II and VIII establishing the County Council as the Legislative Branch of the County Government and containing miscellaneous provisions, shall take effect on December 2, 1948; whereas the provisions of Articles III to VII, including those relating to the County Council as the Executive Branch, do not become operative until the members of the first County Council take office. ²⁰⁴ The point at issue involves two Articles of the State Constitution, namely, the “Home Rule Amendment,” Article XIA, adopted in 1915, and the “Quadrennial Elections Amendment” or “Fewer Elections Amendment,” Article XVII, adopted in 1922.

For a clear understanding of the case it is necessary to outline these constitutional provisions. The Home Rule Amendment provides a systematic plan for establishing county government, with local legislative powers exercised by a County Council in place of the previous system of government by County Commissioners exercising no general legislative power. Montgomery is the first county of the State to adopt a charter under these provisions, although the City of Baltimore adopted a charter in 1918, and has several times amended it under other provisions not material here. Section 1 of the Home Rule Amendment provides for the election in any County of a charter board to prepare a “charter or form of government” for such County, to be submitted to the voters at the next general election.

Section 1 further provides that if a majority of the votes cast shall be in favor of adoption, “the said charter from and after the thirtieth day from the date of such election shall become the law of said * * * County, subject only to the Constitution and Public General Laws of this State, * * Section 2 of the Amendment provides that the General Assembly at the first session after the adoption of the Amendment shall, by public general law, provide a grant of express powers for such Counties as might thereafter form a charter, but provides further that such express powers granted to the Counties shall not be enlarged or extended by any charter so formed. In fulfillment of this mandate, the General Assembly adopted the “Express Powers Act,” now codified as Article 25A of the Code of Public General Laws. This Act, while enumerating the granted powers in nineteen separate paragraphs, grants no power to hold elections. The only reference to elections is contained in a grant of ²⁰⁵ power to rearrange and create election districts and precincts.

There is also in the Express Powers Act a restrictive clause which provides that the powers therein granted shall only be exercised to the extent that the same are not provided for by Public General Law. Section 3 of the Home Rule Amendment provides that “Every charter so formed shall provide for an elective legislative body in which shall be vested the law-making power of said * * * county.”, and that such elective body shall be known as the County Council. It further provides that all references in the Constitution and laws to the County Commissioners shall be construed to refer to the President and County Council “whenever such construction would be reasonable.” The County Council is empowered to enact local laws for the County, and to repeal or amend local laws theretofore enacted by the General Assembly upon all matters covered by the “express powers.” Section 4 of the Home Rule Amendment provides that “From and after the adoption of a charter * * *, no public local law shall be enacted by the General Assembly for said * * * County on any subject covered by express powers * * *.” Section 6 of the Home Rule Amendment provides that the power theretofore conferred upon the General Assembly to prescribe the number, compensation, powers and duties of the County Commissioners, is transferred to the voters of the County, but that such powers shall be exercised only by the adoption (or amendment) of a charter. As a result, with respect to any County adopting a charter: 1.

The new charter takes effect thirty days after its adoption. 2. A County Council is to be elected. 3. The local legislative power is transferred from the General Assembly to the County Council, and the General Assembly is forbidden to enact local legislation. ²⁰⁶ 4. The County Council can exercise the “express powers” enumerated in the Express Powers Act, and succeeds to the rights and obligations of the County Commissioners “whenever such construction would be reasonable.” 5.

The provisions of the Charter are subject to the Constitution and Public General Laws of the State. 6. All public local laws inconsistent with the Charter aré repealed. The Quadrennial Election Amendment, Article XVII, of the Constitution, adopted in 1922, provides in See. 1 that all State and County officers shall hold office for terms of four years, and in Sec. 2 that elections for such officers shall be held in November 1926, and every fourth year thereafter. The next such election should be held in November 1950.

Section 11 of Article XVII provides: “The purpose of this Article is to reduce the number of elections, by providing that all State and county elections shall be held only in every fourth year, and at the time now provided by law for holding congressional elections; and to bring the terms of appointive officers into harmony with the changes effected in the time of the beginning of the terms of elective officers; and the administrative and judicial officers of the State shall construe the provisions of this Article so as to effectuate that purpose * * *”. The remaining sections of the Amendment, 4—10, 12, are devoted to a detailed adjustment of the terms of elective and appointive officers in order to effect the result of having all the terms of regularly elected or appointed officers expire at appropriate times to comply with the general plan of holding elections every four years to fill their places. Section 13 provides that in the event of any inconsistency between the provisions of the Amendment and any of the other provisions of the Constitution, the provisions of the Amendment shall prevail. The Charter is carefully drawn to comply with these provisions for quadrennial elections after the election of the members of the first County Council. ²⁰⁷ The principal ground upon which the appellants rest their case is that the provision contained in Article IX, section 3a of the Charter providing for a special election on January 6, 1949, is in direct and inescapable conflict with both Sections 2 and 11 of Article XVII of the Constitution, which require that elections for county officers shall be held every fourth year after 1926, and that “all State and county elections shall be held only in every fourth year”.

It is of course obvious that the bare words of these two provisions indicate a conflict, since a special election is an election, and the special election provided for by the Charter is not to be held four years after the last general election, at which the present County Commissioners were elected. The appellants allege that there is no room for interpretation of these words of the Constitution,