Howard County Metropolitan Commission v. Westphal

³³⁷ Horney, J., delivered the opinion of the Court. This action for declaratory and injunctive relief was brought by Earl C. Westphal, a resident and taxpayer of Howard County, on behalf of himself and others similarly interested, to test the constitutionality of subsections (a) and (c) of § 125 of the Howard County Code (1957 Ed.), 1 as amended by Chapter 530 of the Laws of 1961, and the validity of the action of the Howard County Metropolitan Commission in authorizing the issuance of $2,500,000 in bonds to finance the construction of approved water and sewerage systems in three sub-sanitary districts of the county. Other interested residents and taxpayers of the county subsequently sought and were permitted to intervene in the action. Chapter 991 of the Laws of 1943 created certain sanitary districts within Howard County and provided for the incorporation of a Howard County Metropolitan Commission (usually hereinafter referred to as the Commission) composed of three members appointed by the Board of County Commissioners of Ploward County (usually hereinafter referred to as the Board), to govern the sanitary districts thereby created.

In addition to the power to construct, maintain and operate the water, sewerage and drainage systems and to employ such personnel as was necessary to perform these functions, the Commission was authorized, among other things, to purchase and condemn property; to issue bonds on the faith and credit of the county; and to levy taxes, assessments and other charges for the payment of such bonds and the cost and expense of operating, maintaining and controlling such systems. It was further provided that each member of the Commission should receive a fixed annual salary. By Chapter 287 of the Laws of 1957, the original statute (as previously amended by Chapter 606 of the Laws of 1945 and Chapter 162 of the Laws of 1955) was repealed and reenacted to provide for increases in the salaries of the members of the ³³⁸ Commission and the appointment of one of the county commissioners to sit at meetings of the Commission. Chapter 530 of the Laws of 1961 amended § 125 (a) of the Howard County Code so as to provide for an increase in the membership of the Commission from three to four members, one of whom was to be a county commissioner designated by the Board to serve on the Commission.

Section 125 (c) was also so amended as to provide that should any proposition before the Commission remain unresolved because of a tie vote or should any member of the Commission dissent with respect to any action taken by it, such proposition or action should be finally determined by the Board. However, § 125 (b) of the county code, relating to the payment of salaries to members of the Commission, was not amended to exclude payment of compensation to the county commissioner member. Lastly, Chapter 369 of the Laws of 1963 provided other and additional changes, the effect of which is to return to. the Board some of the powers and duties which had theretofore vested in the Commission. Section 129 of the county code, however, was not altered.

Under it the Commission still has authority to issue bonds on the faith and credit of the county. In April of 1961, the Commission, then consisting of three appointed members (Roger V. Laynor, Leroy C. Moser and J. Carroll Jenkins), approved surveys, plans, specifications and estimates for water and sewerage systems in the Elkridge and Dorsey sub-districts to be financed by grants in aid from the Federal Government and from the State of Maryland and in part by the issuance of bonds on the faith and credit of Howard County in the aggregate amount of $1,500,000. In February of 1963, the Commission, then consisting of four members (of whom Roger V. Laynor, Leroy C. Moser and J. F. Ammerman were appointed members, and David W. Force, a county commissioner, was the member designated by the Board), approved revised surveys, plans, specifications and estimates for water and sewerage systems in the Patuxent sub-district to be financed in part by the issuance of bonds in the amount of $1,000,000. On June 10, 1963, the Commission, then consisting of the same four members, authorized and gave final approval to the ³³⁹ issuance of bonds on the faith and credit of Howard County in the amount of $2,500,000 to finance the water and sewerage systems in the Elkridge, Dorsey and Patuxent sub-districts as theretofore approved by the Commission.

Of the three appointed members presently serving on the Commission, two, Roger V. Laynor and Leroy C. Moser, are employed elsewhere. Laynor holds a position in the office of the Comptroller of the Treasury. Moser holds a position with the State Roads Commission. The lower court, in ruling on the questions raised by the amended bill of complaint, declared that both subsections (a) and (c) of § 125 of the county code were unconstitutional and void; declared that the action of the Commission — in approving the Elkridge, Dorsey and Patuxent water and sewerage systems and authorizing the issuance of the bonds to finance them — was valid; and denied the injunctive relief sought.

These appeals followed. The Commission contends that both subsections of § 125 are constitutional and that the action of the Commission was valid. Westphal contends that both subsections are unconstitutional and that the action of the Commission was invalid. The intervenors contend that the decree of the lower court should be affirmed in its entirety.

(i) The first question to be decided is whether subsections (a) and (c) of § 125 of the county code, as amended by Chapter 530 of the Laws of 1961, or either of them, are unconstitutional in that they violate Article 35 of the Declaration of Rights providing that “no person shall hold, at the same time, more than one office of profit, created by the Constitution or Laws of this State.” Since it is not disputed that the office of a county commissioner is one of profit (see Hetrich v. County Commissioners of Anne Arundel County, 1960, 222 Md. 304, 306 , 159 A. 2d 642 ), it is clear that if membership on the Metropolitan Commission is also an office of profit within the meaning of Article 35, then § 125 (a) is unconstitutional and void. There is, as we see it, little room for doubt that a member of the Commission is a public officer. Although it is a fact ³⁴⁰ that none of the members received a commission, gave an official bond or took an oath of office, it is apparent, from a reading of the statute, that the duties conferred by law on the members of the Commission call, for the exercise of a large portion of the sovereign power of government with respect to water, sewerage and drainage for the benefit of the people of Howard County. See Gary v. Board of Trustees, 223 Md. 446, 449 , 165 A. 2d 475 (1960) ; Hetrich v. County Commissioners, supra (at p. 307 of 222 Md.) ; Pressman v. D’Alesandro, 211 Md. 50, 55 , 125 A. 2d 35 (1956); Nesbitt v. Fallon, 203 Md. 534, 544 , 102 A. 2d 284 (1954); Buchholtz v. Hill, 178 Md. 280, 283 , 13 A. 2d 348 (1940).

In addition to these tests, it must not be overlooked that the provisions of § 125 (b) of the county code do not preclude the county commissioner member from accepting (though in fact he did not) the emoluments of the office and that the refusal of the designated county commissioner to accept a salary did not validate his designation as a member of the Commission. See Hetrich v. County Commissioners, supra (at p. 310 of 222 Md.). Moreover, the contention of the Commission that the common law doctrine — to the effect that a member of an appointing body is ineligible for appointment to a conflicting office by that body — ought not to be applied here so as to invalidate the membership of the county commissioner because he was specifically designated to serve as a member of the Commission, ignores the very purpose of