O. C. Taxpayers for Equal Rights, Inc. v. Mayor of Ocean City

Eldridge, J., delivered the opinion of the Court. This case concerns the validity of charter amendments adopted by the Mayor and City Council of Ocean City, Maryland, which changed the qualifications for voters in the city elections. When Ocean City was incorporated by Chapter 209 of the Acts of 1880, the voting franchise was extended not only to residents of the town, but also to certain non-residents owning an interest in Ocean City real estate. This franchise remained substantially unchanged through the next 95 years.

Immediately prior to the adoption of the charter amendments at issue in this case, non-residents owning property with an assessed value of at least $1,000 were qualified to vote in the city elections according to Section C-403 of the Ocean City Charter. Under the same section, all adult residents, regardless of property ownership, were entitled to vote. On January 5, 1976, the Mayor and City Council of Ocean City adopted 48 charter amendment resolutions. Two of these resolutions, 1976-3 and 1976-4, purported to change the qualifications of voters.

A Charter Revision Committee originally proposed Resolution 1976-3 to the City Council as a sole and separate amendment to the charter. The effect of 1976-8 was to limit the right to vote to persons who are domidliaries for the 4 months preceding an election. Non-resident property owners, therefore, could no longer remain on the voter rolls. In addition, 1976-8 stated that non-resident city eouncilmen could serve out their terms of office even if they were no longer registered voters.

Resolution 19764, on the other hand, was added by the City Council to the Charter Revision Committee’s proposal. This resolution was a so-called “grandfather clause,” stating that those non-resident property owners already on the voter rolls as of the date the resolutions were adopted would not be removed from the rolls, solely because of the provisions of 1976-3. On January 30, 1976, the plaintiffs, non-residents each of ⁵⁸⁸ whom owned more than $1,000 worth of property in Ocean City, and approximately 210 other non-residents, registered to vote. Soon after, on February 25, 1976, the voting rolls were examined by the Board of Election Supervisors and all those who had become unqualified to vote — by change of residence, failure to vote in two consecutive elections, death, failure to meet the new residency requirements, etc. — were stricken from the rolls.

This affected the 220 non-residents who registered on January 30, 1976, along with some 1,500 others. The plaintiffs requested that the Mayor and City Council reinstate them to the voter rolls, but this request was refused. Thereupon, on July 23,1976, the plaintiffs commenced the present action by filing a petition for declaratory relief in the Circuit Court for Worcester County. Plaintiffs there argued, inter alia, that resolutions 1976-3 and 1976-4 were void: (1) because their titles did not conform to the requirements of Maryland Code (1957,1978 Repl.

Vol.), Art. 23A, § 13 (c), which requires that every charter amendment adopted by a municipal corporation be limited to a single subject, and further requires that this subject be described in the amendment’s title; and (2) because the resolutions created a classification between non-resident property owners registered before January 5, 1976, and all other non-resident property owners which was a denial of equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution. Immediately after this suit was filed, the MAyor and City Council of Ocean City adopted Charter Resolutions 197649, 1976-50 and 1976-51. These resolutions recited the improper titling issue raised by the plaintiffs in their petition for declaratory relief. While the substance of these new resolutions was identical to 1076-8 and 19764, they contained new and more descriptive titles, Plaintiffs then filed a motion in the circuit court to amend their petition in order to bring 197649, 1976-50 and 1976-51 into issue.

This motion was denied, and, after a hearing on the merits, the circuit court held: (1) that the titles and subject matter of 1976-3 and 19764 conformed to the requirements of Art. ⁵⁸⁹ 28A, § 18 (c); (2) that 1976-8, limiting the right to vote to domiciliaries, was valid and constitutional; (8) that the classification between non-resident property owners created by 1976-4 was an arbitrary one and thus violated the Equal Protection Clause of the Fourteenth Amendment; and (4) that 1976-8 and 1976-4 were severable, so that the invalidity of one did not affect the validity of the other. The effect of the circuit court’s decision, by sustaining 1976-8 while holding 1976-4 invalid, was to deny the franchise to all non-resident property owners. Plaintiffs took an appeal to the Court of Special Appeals and, prior to a hearing in that court, petitioned this Court for a writ of certiorari, which we granted. Plaintiffs renew their argument that 1976-8 and 1976-4 are invalid due to improper titling, and argue that 1976-3 and 1976-4 are not severable, so that a holding that 1976-4 is unconstitutional requires that 1976-3 also be declared void.

(1) Code (1957, 1973 Repl. Vol.), Art. 23A, § 18 (c), requires that “[i]n conformity with a requirement imposed upon the General Assembly .. . every charter amendment adopted by a municipal corporation shall embrace but one subject, and that shall be described in its title.” (Emphasis supplied.) The title of charter amendment 1976-3 reads “Resolution of the Mayor and City Council of Ocean City, Maryland, to amend the Town Charter.” The title of 1976-4 reads “Resolution of the Mayor and City Council of Ocean City, Maryland, Subsequent to Resolution (Charter) No. 1976-3.” Defendants, arguing that the titles of 1976-3 and 1976-4 adequately describe their subject matter, rely on cases such as Annapolis v. State, 30 Md. 112 (1869), which involved an amendment by the General Assembly to the charter of Annapolis. The title of the act read “An Act to amend and alter the Charter of the city at Annapolis.” This Court upheld the validity of that title, stating that the “subject matter of legislation, was the charter of a Municipal Corporation,” and as such, was adequately described in the ⁵⁹⁰ title. Annapolis v. State, supra, 30 Md. at 119 .

Defendants contend that, analogously, the title of resolution 1976-3 is sufficient. Plaintiffs, on the other hand, argue that what is a sufficient title for an act of the General Assembly is not necessarily sufficient when employed in a municipal corporation’s charter amendments. Art. Ill, § 29 of the Maryland Constitution requires that “every Law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title.” (Emphasis supplied.) But Art. 23A, § 13 (c), imposes a significantly narrower requirement on municipal corporations. Not all laws, nor all enactments, but rather all “charter amendment[s] shall embrace but one subject, and that shall be described in its title.” (Emphasis supplied.) Plaintiffs contend that a title such as “Resolution ... to amend the Town Charter” does not even arguably satisfy the requirement that the subject of a charter amendment be described in its title.

To approve this title in a municipal charter amendment would be similar to upholding a General Assembly act which simply stated, “An Act to Amend the Laws of Maryland.” This type of title, plaintiffs argue, would be clearly insufficient. Although plaintiffs’ argument seems highly persuasive, it is not necessary to decide that issue in this case. We agree with the defendants’ argument that even if the titles of 1976-3 and 1976-4 were defective, this defect was cured by the subsequent enactment of 1976-49,1976-50 and 1976-51. While a motion by the plaintiffs to amend their petition for declaratory relief so as to include 1976-49, 1976-50 and 1976-51 in the circuit court’s proceedings was denied, both plaintiffs and defendants request that we take judicial notice of these later resolutions in our disposition of this case.

In the past, this Court has often pointed out the general though not inflexible rule that the courts do not take judicial notice of the enactments of municipal corporations. Kramer v. Prince George's County, 248 Md. 27, 36 , 234 A. 2d 589 (1967); Walker v. D'Alesandro, 212 Md. 163, 170-171 , 129 A. 2d 148 (1957), and cases there cited. In 1968, however, the General Assembly enacted what is now Code (1974), ⁵⁹¹ § 10-203 (a) of the Courts and Judicial Proceedings Article, providing that “[t]he public laws, ordinances, regulations and resolutions approved and enacted by a ... municipal corporation of the state ... shall be judicially noticed.” Therefore, we take judicial notice of resolutions 1976-49, 1976-50 and 1976-51 (the July resolutions), having content substantially identical to resolutions 1976-3 and 1976-4 (the January resolutions). The titles of the July resolutions are descriptive of their subject matter 1 and have not been challenged by the plaintiffs.

It is well established in Maryland that courts will not ordinarily consider an alleged defect in the title of an earlier enactment when a subsequent valid statute on the same subject cures the alleged title defect in the earlier act. Grillo v. State, 209 Md. 154 , 120 A. 2d 384 (1954); Jones v. State, 207 Md. 481 , 115 A. 2d 273 (1955); Mt. Vernon Co. v. Frankfort Co., 111 Md. 561 , 75 A. 105 (1909); Everstine, Titles of Legislative Acts, 9 Md. L. Rev. 197 ,239-240 (1948). Plaintiffs, however, argue that the July resolutions could not cure the January resolutions since they were not adopted in conformity with Code (1957, 1973 Repl.

Vol.), Art. 23A, § 17. Article 23A, § 17 (b) requires that “[t]he resolution to amend a charter shall identify the source of the existing section or sections, citing the code or other publication or amendment in which appears the most recent text of the section or sections to be amended.” (Emphasis supplied.) Article 23A, § 17 (d) requires, in addition, that the resolution “shall provide specifically (and not simply by implication) for the repeal of any section or sections of the eocisting charter which are inconsistent with the amended ⁵⁹² section or sections.” (Emphasis supplied.) Plaintiffs apparently contend that these requirements were violated when the Mayor and City Council failed to expressly repeal the January resolutions when adopting the July resolutions. As a consequence, the July resolutions purport to repeal language contained in the Ocean City Code, § C-403A (4) as that language already existed before January 1976. That is, plaintiffs contend that the July resolutions attempt to repeal language that had already been repealed by the January resolutions, and that this does not satisfy the statutory requirement that resolutions “identify the source of the existing ... sections, citing the . .. most recent text of the section ... to be amended.” Art. 23A, § 17 (b) (emphasis supplied).

We cannot agree with plaintiffs’ conclusion. Plaintiffs’ theory of the case is predicated on the invalidity of the January resolutions because of defective titling. It is this theory alone which causes us to consider the July resolutions. However, if the January resolutions were invalid, they were not the “existing” provisions for purposes of Art. 23A, §§17 (b) and 17 (d).

An act which is defectively titled, and therefore invalid under a public general law of the State, clearly need not, for the purposes of Art. 23A, § 17, be treated as the “existing” law. Cf. Perkins v. Eskridge, 278 Md. 619, 627-637 , 366 A. 2d 21 (1977). In fact, under the plaintiffs’ theory of the case, defendants proceeded exactly as they should have in reciting the original text of the code in the July resolutions.

Moreover, even if the enactment of the July resolutions would have involved a technical violation of § 17, we could not agree that, as a consequence, the resolutions should be held invalid. As this Court said in Mayor of Hagerstown v. Lyon, 236 Md. 222, 234 , 203 A. 2d 260 (1964), with respect to a similar requirement in § 17 (a), “[t]he obvious objectives of Section 17 (a) ... [are] to permit those who are considering legislation to ascertain, quickly and easily, proposed new legislation or changes in the old.” Plaintiffs do not allege, nor is it conceivable under the facts shown by this record, that any member of the City Council or any ⁵⁹³ interested person was misled by the failure of the July resolutions to identify or repeal the text of the January resolutions in the body of the July resolutions. The Mayor and City Council clearly intended the July resolutions to cure any formal defects that might be found to exist in the January resolutions as a result of the plaintiffs’ pending suit. This fact is recited in the preamble of each of the July resolutions.

It is clear that it was so understood at the City Council meeting where the July resolutions were considered. We find these circumstances to be substantially similar to those in Mayor of Hagerstown v. Lyon, supra, 236 Md. at 234 , where the Court stated: “To hold under the circumstances presented here — where no fraud or trickery has been attempted or perpetrated, and no one has been misled — that the failure to comply literally with Section 17 (a) invalidated the resolution would, we think, place a premium on form and require a disregard of substance,” Consequently, the July resolutions are not invalid under Art, 23A, § 17, and they supersede the January resolutions. Therefore, any defects which may have existed in the January resolutions are immaterial under the circumstances of this ease. (2) Before considering plaintiffs’ arguments regarding severability, it is necessary for us to consider the premise which gives rise to that issue, namely the circuit court's holding that 10764 (and, consequently, its successor 107641) is invalid under the Fourteenth Amendment’s Equal Protection Clause.

Resolution 107641 acts as an exception to 107649. While 197649 limits the franchise to domiciliarios, 197641 provides that currently enrolled non-resident property owners retain the franchise, despite the provisions of 197649. Obviously, 197641 effects a classification between non-resident property owners on the voting lists as of a ⁵⁹⁴ certain date and those who seek to be enrolled on the lists after this date. 2 The stated purpose of this classification is to provide a “phase-out period” for currently registered non-resident voters who would otherwise become disqualified by reason of 1976-49. Presumably, as non-resident voters die, sell their property, or otherwise become disqualified, their names will be removed from the voters’ rolls.

By this means, it is asserted, non-resident voters will ultimately be “phased out,” leaving only domiciliaries on the rolls. We think, however, the term “phase-out” to be inaccurate. No definite plan calling for a gradual withdrawal of non-resident voters is present. Under the provisions of 1976-51, Ocean City has no control over the continued presence of non-resident voters on the rolls.

If non-resident voters, by choice or negligence, disqualify themselves, apparently they cannot be returned to the rolls, but absent this, their franchise is lifetime. In effect, then, under 1976-51, Ocean City has instituted a “freeze,” not a “phase-out,” limiting the non-residents eligible to vote to those currently enrolled. That is, the privilege to vote is granted to those non-residents currently enrolled and to no others. It is not, however, within the power of a legislative body to make a statutory classification which confers upon one class privileges which are denied to another class, unless the classification, at minimum, has some rational basis.

Moreover, we are, of course, here dealing with the right to vote, and thus the classification is subject to some degree of special scrutiny. Kramer v. Union Free School District, 395 U. S. 621 , 89 S. Ct. 1886 , 23 L.Ed.2d 588 (1969); Harper v. ⁵⁹⁵ Virginia Board of Education, 383 U. S. 663 , 86 S. Ct, 1079 , 16 L.Ed.2d 169 (1966). The attempt by Ocean City to grant the voting franchise only to currently registered non-resident voters is a “grandfather clause.” Such clauses have the effect of continuing a benefit upon those already receiving it while denying the benefit, or imposing additional burdens, upon the remainder of the class. This type of clause is often, and properly, used when occupations come for the first time under state regulation.

For example, in Watson v. State, 218 U. S. 173 , 30 S Ct. 644, 54 L. Ed. 987 (1916;, affirming this Court’s decision in 105 Md, 650, 66 A, 635 (1907), a Maryland statute was upheld which provided for the licensure and qualification of physicians, even though a grandfather clause in the statute exempted physicians who had been in practice as of a certain date from meeting these qualifications. The rationale for this decision is clear. Speaking of these types of exceptions in general, the Supreme Court stated that the exceptions proceed “upon the theory that those who have acceptably followed the profession in the community for a period of years may be assumed to have the qualifications which others are required to manifest as a result of an examination before a board of medical experts.” 218 U. S. at 177 . Since experience is deemed an adequate substitute for other manifestations of qualification, the purpose of the statute, the general regulation of the medical profession, is furthered.

Typically, then, a grandfather clause is justified by some rationale other than merely conferring a benefit on some to the exclusion of others. See City of New Orleans v. Dukes, 427 U. S. 297, 303-306 , 96 S. Ct. 2513, 2516-2518 , 49 L.Ed.2d 511 (1976), for a recent case finding a rational basis for a grandfather clause. In the present case, however, no justification at all is present, or even suggested, for the freezing of the voter rolls, either on the face of the resolution or in the