Hitchins v. Mayor of Cumberland

Bruñe, C. J., delivered the opinion of the Court. The appellant, as a taxpayer, brought two suits in the Circuit Court for Allegany County, each of which sought a declaratory decree and an injunction, against the Mayor and City Council of Cumberland (referred to below as “Cumberland”, the “City” or the “City of Cumberland”) and the Mayor and City Clerk of Cumberland. In the first suit (No. 58) the principal question was this: Were Sections 215-222 of the Charter of Cumberland dealing with the methods of amending that Charter as enacted by Chapter 702 of the Acts of 1951, a Public Local Law, superseded by the provisions relating to the methods of amending municipal charters generally contained in Chapter 423 of the Acts of 1955, a Public General Law passed to implement the Municipal Home Rule Amendment (Article XI-E of the State Constitution) adopted in 1954? The second suit (No. 59) presented this further, but closely related, question: Could the specific provisions of the Charter relating to the authorization of water bonds be amended after the effective date of the 1955 Act in the manner authorized by that Act?

The Circuit Court upheld both the applicability of the 1955 Act and the validity of the proceedings taken in pursuance thereof with respect to amending the Charter provisions relating to the authorization of water bonds; and the taxpayer appealed. This Court advanced both cases for argument and affirmed the decree in each case by a per curiam order. There were several other questions raised, but they do not require decision. One was a claim by the City that Chapter 702 of the Acts of 1951 was unconstitutional.

It was rejected by the Circuit Court and abandoned here. Two others would have been pertinent if the effect of the Home Rule Amendment and of Chapter 423 of the Acts of 1955 had not been to super ¹³⁹ sede Sections 215-222 of the Charter of Cumberland as enacted by Chapter 702 of the Acts of 1951. We shall now proceed to state our reasons for holding that these Sections have been superseded. For brevity, we shall refer to the municipal corporations of the State to which Chapter 423 of the Acts of 1955 is applicable as “municipalities”.

All of them are within the scope of Article XI-E of the Constitution, and they include all incorporated cities, towns and villages in the State, except the City of Baltimore. The sections added to Article 23A of the Code (1951 Edition and 1954 Supplement), entitled “Corporations — Municipal”, are codified in the 1955 Supplement under the sub-title, “Home Rule”, as Sections 9-43, inclusive, and they will be referred to as so codified. The Charter of Cumberland as it existed prior to April 18, 1955, which was the effective date of Chapter 423 of the Acts of 1955, will be referred to as the “old Charter.” Sections 215-222 of the old Charter provided, in brief, that the Charter of Cumberland could be amended (except in certain respects not here involved) in this way: An amendment might be proposed by a majority of all of the members of the Mayor and City Council or by a petition signed by registered voters numbering not less than 10% of those who had voted for mayoralty candidates at the last election; and thereafter the amendment as proposed by either of these methods had to be submitted to a referendum vote of the voters of the City, and would become effective if, and only if, approved by a majority of the voters voting on the question. The contrasting provisions of Article XI-E of the Constitution and of the implementing legislation passed pursuant thereto require a rather full statement.

Article XI-E, the Municipal Home Rule Amendment, is generally in accord with the recommendations of the Commission on Governmental Organization of the State, which was appointed by Governor McKeldin and is usually known by the name of its Chairman, the Honorable Simon E. Sobeloff, as the “Sobeloff Commission.” This Amendment ¹⁴⁰ consists of six sections. Under Sections 1 and 2 the General Assembly is required to classify all municipal corporations of the State, except the City of Baltimore and the Counties, by grouping them into not more than four classes, based on population, and the Legislature is prohibited from passing “any law relating to the incorporation, organization, government, or affairs of * * * [such] municipal corporations * * * which will be special or local in its terms or in its effect”. It is further provided that the General Assembly shall act in relation to such matters only by general laws applicable to all municipal corporations in any of the several classes to be established. Sections 3 and 4 read in full as follows: “Sec. 3.

Any such municipal corporation, now existing or hereafter created, shall have the power and authority, (a) to amend or repeal an existing charter or local laws relating to the incorporation, organization, government, or affairs of said municipal corporation heretofore enacted by the General Assembly of Maryland, and (b) to adopt a new charter, and to amend or repeal any charter adopted under the provisions of this article.” “Sec. 4. The adoption of a new charter, the amendment of any charter or local laws, or the repeal of any part of a charter or local laws shall be proposed either by a resolution of the legislative body of any such municipal corporation or by a petition containing the signatures of at least five per cent of the registered voters of a municipal corporation and filed with the legislative body of said municipal corporation. The General Assembly shall amplify the provisions of this section by general law in any manner not inconsistent with this article.” Section 5, which deals with limitations upon rates of municipal taxation of property, upon sources of municipal taxation and upon the amount of municipal debt and reserves powers to the General Assembly with regard ¹⁴¹ to such matters (notwithstanding other provisions of the Article), is not directly pertinent. It may be noted in passing that Acts of the General Assembly adopted pursuant to this Section are subject to local referenda, and that charter provisions falling within the field of this Section which may be adopted pursuant to Section 3, are subject to local laws which may be enacted by the General Assembly pursuant to Section 5 and approved by local municipal referendum votes.

Section 6 provides, inter alia, that “Any local law, or amendments thereto, relating to the incorporation, organization, government, or affairs of any municipal corporation and in effect at the time this article becomes effective, shall be subject to any applicable State law enacted after this article becomes effective. All laws enacted by the General Assembly and in effect at the time this article becomes effective, shall remain in effect until amended or repealed in accordance with the provisions of this Constitution.” Chapter 423 of the Acts of 1955 was enacted to implement the Municipal Home Rule Amendment. It added thirty-five new sections to Article 23A of the Code. We shall refer to those which have a direct bearing on these cases.

Section 11 prescribes that “Every municipality shall proceed as in this sub-heading provided in exercising and applying the powers for the amendment of municipal charters which are granted thereto by Article 11E of the Constitution of Maryland.” Sections 12, 13 and 14 contain provisions authorizing the adoption of charter amendments and permit them to be initiated by action of the legislative body of the municipality through a majority vote of all persons elected to such legislative body or by petition of at least 20% of the qualified voters of the municipality. There is a difference between Section 14 of Article 23A and the provisions of the old Charter of Cumberland in the number or percentage of votes required to initiate a petition for amendment. ¹⁴² The major difference between the amending procedure authorized by the old Charter of Cumberland and that set out in Sections 11-14 of Article 23A is with regard to proceedings after the proposed amendment has been initiated by action of the legislative body, and it is this difference which gives rise to this litigation. Under the old Charter a referendum vote was mandatory as a prerequisite to the proposed amendment becoming effective. Under the present Code provisions it may not be necessary to submit a proposed amendment to a referendum vote.

Under Section 13 of Article 23A a copy of the proposed amendment must be posted for at least forty days following its proposal by the legislative body at the town hall or at some other public place, and a fair summary of its provisions must be published in a newspaper of general circulation in the municipality at least four times at weekly intervals within forty days after its approval by the legislative body. An amendment so proposed and advertised will become effective on the fiftieth day after its being so ordained or passed, unless within forty days after the adoption of the resolution proposing the amendment not less than 20% of the qualified voters of the municipality file a petition for a referendum. If such a petition is filed, the amendment must be submitted to a referendum vote; in the absence of such a petition no referendum is necessary, and, as stated, the amendment becomes a part of the charter on the fiftieth day after its approval by the legislative body. It is interesting to note that there may be no need for a referendum vote on an amendment initiated by petition.

Under Section 14(b), if an amendment is initiated by petition under subsection (a) of Section 14, the legislative body may, if it approves of the amendment, in effect take it over and propose it by resolution of its own. In such a case the amendment goes forward as if the legislative body itself had initiated it under Section 13; and unless a referendum is demanded, it ¹⁴³ becomes a part of the charter without any referendum vote. We think it perfectly clear that in terms the Municipal Home Rule Amendment and the Code provisions added to Article 23A by Chapter 423 of the Acts of 1955 are applicable to the City of Cumberland. The appellant suggests that the absence of any express repeal of prior inconsistent laws indicates that none was intended, and hence that Sections 215-222 of the old Charter remain in force.

We think, however, that this is clearly a case in which the provisions of Sections 11-18 of Article 23A of the Code, enacted to implement Article XI-E, and particularly to implement Section 4 thereof, occupy the whole field of amendments to charters of municipalities and that the provisions of Sections 215-222 of the old Charter are thereby superseded by what may be termed either a repeal by substitution or a repeal by implication. The provisions of the old Charter just referred to authorize amendments to the Charter of Cumberland and prescribe how they may be made. Article XI-E of the Constitution authorizes amendments of the charters of all municipal corporations (with certain exceptions not here material), and Sections 11-18 of the Code prescribe how such municipal corporations