Mayor of Hagerstown v. Lyon

Prescott, J., delivered the opinion of the Court. We, heretofore, affirmed the action of the trial judge herein by per curiam order. The appeal was taken by the Mayor of Hagerstown from an order of the Circuit Court of Washington County granting a petition for declaratory decree brought by the appellee, a resident of the City of Hagerstown, in his own behalf and in behalf of all taxpayers and voters in said City. The order declared that: the Mayor did not have the power to veto a charter amendment resolution passed by a majority of the Council of Hagerstown pertaining to an election to be held relative to the sale, other disposition of, or lease of the Municipal Electric Eight Plant; the said resolution having been passed by a majority of the Council, the posting thereof and a publication of a summary of said resolution complied with the intent, purpose and substantive provisions of the Code (1957), Article 23A, Sections 13-17; the said charter amendment will become a valid amendment to the Charter of Hagerstown unless it is defeated on referendum as provided in Article 23A; the clerk make an amendment to the minutes of one of the meetings of the Mayor and Council, not here contested.

The case may be determined by answering these questions: 1. Was the trial court correct in holding that the enactment of the charter amendment resolution in ²²⁶ question is governed solely by State law and need not be enacted as an ordinance subject to mayoral veto in accordance with the procedure set out in the Hagerstown Charter ? 2. Was the lower court correct in holding that the Mayor of Hagerstown is not a member of the legislative body of that City within the meaning of Code (1957), Article23A, Section 13 (a) ? 3. Was the charter amendment resolution invalidated because it was not presented to the Council in the form provided in Section 17 (a) ?

No question is raised relative to a failure to join possible necessary parties. Cf. Pressman v. D’Alesandro, 211 Md. 50 . And no contention has been made that the resolution has not been registered in accordance with Section 17 (f).

At a meeting of the Mayor and City Council of Hagerstown duly called and convened on February 13, 1964, at which the Mayor and all five members of the Council were present, a motion was presented by a member of the Council proposing the passage of a resolution amending Section 81 of the Hagerstown City Charter with respect to the procedure to be followed in connection with a referendum on “a proposed sale, lease or other disposition” of the Municipal Electric Light Plant, which resolution, including the summary thereof, was read in its entirety to the other members of the Council. At said meeting, the Mayor publicly stated that he possessed the right to veto the proposed charter amendment and refused to permit a vote on said amendment until the charter amendment resolution was amended to include the following: “preserving the right of the Mayor to exercise his right to veto if he has such power.” The amendment was added to the resolution and the resolution was then passed by a majority vote of the members of the City Council. After the passage of said resolution, the Mayor refused to publish the summary or post the resolution as provided for in Section 13 (d) and (e) of Article 23A of the 1957 Annotated Code of Maryland. A complete and exact copy of the resolution containing the proposed charter amendment was posted by ²²⁷ John H. Conrad, City Clerk of Hagerstown at City Hall in Hagerstown, Maryland, on February 15, 1964, and remained posted for at least 40 days following its adoption according to the requirements of Section 13 (d) of Article 23A of the 1957 Annotated Code of Maryland.

A fair summary of the proposed charter amendment as passed by the Council on February 14, 1964, was published in the Morning Herald and Daily Mail on February 19, February 26, March 4 and March 11 by David W. Byron and Franklin L. Morgal according to' the requirements of Section 13 (e) of Article 23A of the Annotated Code of Maryland, 1957 Edition. Under date of February 18, 1964, the Mayor of Hagerstown, purported to veto the said charter amendment resolution and filed his written veto message with the City Clerk for presentation to the Council at its next regular meeting, which veto message was read at the next regular meeting of the Council. Thereafter, a petition fox declaratory decree was filed by Charles D. Eyon as a citizen, taxpayer and voter of Hagerstown on his behalf and on behalf of all other taxpayers and voters of Hagerstown seeking a judicial determination of the question as to whether or not the Mayor had the right to veto this resolution and of the general validity of said amendment. The Mayor and City Clerk, filed answers; briefs were filed by both parties and a hearing was held before the Circuit Court for Washington County on the questions thereby presented.

Thereafter, the Circuit Court by Chief Judge McLaughlin passed the order appealed from. I and II Both sides agree that the statute primarily controlling the answers to these questions is Code (1957), Article 23A, Section 13 (a). We agree as indicated by the decision of this Court in Hitchins v. City of Cumberland, 208 Md. 134 . The section reads as follows: “(a) Initiation of amendment by resolution.

The legislative body of the municipal corporation, by whatever name known, may initiate a proposed amendment or amendments to the municipal charter, by a resolution which, except as otherwise specified in this ²²⁸ subtitle, is ordained or passed as in the usual course of considering resolutions in the government of the municipal corporation, by a majority of all the persons elected to the legislative body.” Appellant argues here that the word “resolution” used three times in the section is synonymous with, and really means, “ordinance.” He points out that two verbs, “ordained or passed,” are used, and states that “ordained” is unusual to describe the passage of a resolution. He argues further that whether an amendment proposal measure be called a “resolution” or an “ordinance,” it constitutes legislation and must be adopted in accordance with the usual “legislative procedure and formality of the municipality.” The question gives us no great difficulty. This Court in Hitchins held that the provisions of Sections 11-18 of Article 23A occupy the “whole field” of amendments to charters of home-rule municipalities; hence the answer to our present questions may be ascertained by a determination of the proper construction of Section 13 (a), without setting forth and considering in detail the provisions of the Hagerstown Charter relative to the passage of ordinances generally or charter amendments. The question now under consideration is not the same as that determined in Reed v. President and Com’rs of Town of North East, 226 Md. 229 , wherein we held that a provision in a resolution, which required notice thereof in two named newspapers, did not invalidate the resolution, even though Section 13 only requires notice in one newspaper. 1 ²²⁹ Section 13 (a) is short, and we think its meaning clear.

The Legislature in this concise section not only uses the word “resolution” (or resolutions) three times but goes on to state that “except as otherwise specified” the “resolutions” shall be “passed as in the usual course of considering resolutions in the government of the municipal corporation, by a majority of all persons elected to the legislative body (italics ours).” In using the word “resolution” in Section 13 (a), the Legislature merely followed the same term used in Article XI-E, Section 4, of the Constitution of Maryland. Article XI-E was adopted in 1954, and Articles 23A and 23B of the Code were, in the main part, enacted in 1955 to implement, primarily, Section 4 of Article XI-E. The constitutional article as well as the statutory ones all arose from a concerted effort (as we shall point out later in more detail) to afford home-rule powers and authority to municipal corporations. A careful reading of these provisions convinces us the word “resolution” contained therein was advisedly and deliberately used. Two of the principal objectives attained thereby were to place the veto power of proposed charter amendment resolutions in the electorate (Section 13 [f], [g], and [h]), and, in those municipalities coming within the purview of Article 23B, to point out clearly that charter amendment “resolutions” were not subject to certain provisions relative to “ordinances” (cf. Article 23B, Sections 14 and 15).

We reaffirm the Court’s ruling in Hitchins, supra, and hold that the present appeal is controlled by the State law, Sections 11-18, Article 23A, and not by the provisions of the Hagerstown Charter dealing generally with the passage of ordinances; consequently, Chief Judge McLaughlin was correct in declaring that the Mayor had no right to veto the resolution involved herein. The Supreme Court of Errors of Connecticut reached a similar conclusion in the recent case of Sloane v. City of Waterbury, 183 A. 2d 839 . However, this does not completely answer the two questions under discussion. This brings us to a consideration as to whether the Mayor of Hagerstown is a member of the “legislative body” of that City within the meaning of said Section 13 (a); because if he be, there can be little doubt that the resolution was not passed by a majority vote of all the persons elected to the legislative ²³⁰ body of Hagerstown, as expressly required by the section.

Code of Public Local Laws of Washington County (1957), Section 262, provides that the Mayor shall preside at all meetings of the Council, and “in case of a tie vote of the Council, except in the passage of ordinances, shall have the deciding vote (all italics our unless otherwise noted).” It further provides that he shall “act in all respects as the Chief Executive or administrative officer of said City and shall have the right to veto all ordinances, except ordinances proposing amendments to the Charter. (Whether this latter provision is now in effect, in view of Section 13 (a), is a question we do reach at this point. Cf. Hitchins, supra, wherein a charter amendment “ordinance” was passed simultaneously with a charter amendment “resolution,” and the ordinance was considered to be surplusage.) Section 266 of the Charter provides that all ordinances passed by the Council shall be sent to the Mayor for his approval or disapproval ; if approved, the ordinance becomes law; if disapproved, it does not become law unless passed by a four-fifths vote of the Council.

Because of the above duties and a few others, which we do not deem it necessary to detail, appellant argues that the Mayor is “in effect” á member of the “legislative body” of the City within the purview of Section 13 (a). Chief Judge