Pickett v. Prince George's County

Smith, J., delivered the opinion of the Court. In this declaratory judgment action, three issues are presented: (1) the alleged invalidity of a petition by way of initiative for an amendment to the charter of Prince George’s County; (2) the question of whether that charter amendment impaired contract rights of bondholders so as to be a violation of their rights under United States Constitution Art. 1, § 10, cl. 1; and (3) whether the Board of Election Supervisors of Prince George’s County properly performed its duties upon presentation to it of the petition proposing the charter amendment. In the view we take of the first question, we have no need to address the third. We shall affirm the judgment of the Circuit Court for Prince George’s ⁶⁵⁰ County, which determined that the charter amendment had been validly adopted and that there was no impairment of contract rights. i The case Maryland Constitution Art. XI-A, § 5 provides that amendments to charters of home rule counties may be proposed "by a petition signed by not less than 20% of the registered voters of the ...

County, provided, however, that in any case 10,000 signatures shall be sufficient to complete a petition.” 1 Prince George’s County adopted home rule in 1970. In August 1978, a group calling themselves "the .Tax Reform Initiative by Marylanders” delivered a proposed amendment to the charter of that county to the County Executive of Prince George’s County. This was pursuant to Prince George’s County Charter § 1105 and Maryland Code (1957, 1976 Repl. Vol., 1977 Cum.

Supp.) Art. 33, § 23-1. (From the name of the group came the acronym "TRIM.” Hence, this has become known as the "TRIM Amendment.”) The petition appeared to be signed by more than 10,000 registered voters of Prince George’s County. The proposed amendment placed restrictions upon the levy of real property taxes. 2 It was duly approved by the, voters of Prince George’s County at the general election held in 1978. ⁶⁵¹ On September 4, 1979, about ten months after the election, the appellants instituted a declaratory judgment action in the Circuit Court for Prince George’s County. The allegations of their petition included that they were "holders of Prince George’s County General Obligation Bonds____” They challenged the "TRIM Amendment” on two bases: (1) that it impaired their contract rights, and (2) that it was improperly adopted because it "was placed on the ballot... in a manner not in compliance with the requirements imposed by the Constitution of Maryland, Article XI-A, Section 7 in that the petitions submitted failed to provide the ward, district and precinct of the registered voter signing the petition.” No contention has been presented that any fraud or other irregularity was involved.

The matter ultimately came on for hearing upon motion for summary judgment. Summary judgement was entered in favor of the County and the Board of Election Supervisors. Certain other parties were dismissed. The appellants petitioned us for the writ of certiorari prior to hearing of the matter in the Court of Special Appeals.

We granted that petition to address the important public issues here presented. ii Validity of the petition Constitution Art. XI-A, § 7 provides that a petition to amend the charter of a home rule county is to contain "the ward or district and precinct in which [each signer] is registered.” ** 3 It is conceded that the petitions did not contain information as to the ward or district and precinct of the signers. ⁶⁵² This Court has been consistent in applying a different standard for review after election from that applied before election. See, e.g., the discussion for the Court by Judge Hammond in Dutton v. Tawes, 225 Md. 484, 491-92 , 171 A.2d 688 , appeal dismissed and cert. denied, 368 U.S. 345 (1961). However, the appellants rely upon the fact that this is a constitutional provision and point to language such as that in Baltimore & D.P.R.R. v. Pumphrey, 74 Md. 86, 112 , 21 A. 559 (1891), where Chief Judge Alvey said for the Court, "And to hold that the terms, as employed in the Constitution, are merely directory and not mandatory, as contended by the defendant, would not only be introducing a lax rule of construction of the Constitution, but such construction would virtually nullify and destroy a valuable safeguard intended as means of bringing to the notice and consideration of the people to be affected, contemplated burdens upon them and their property.” That statement must be placed in its proper context. It may be helpful, therefore, to review not only that case but others of our cases.

In that case ("Drum Point’), the Court was concerned with whether there had been compliance with the provisions of ⁶⁵³ Constitution Art. Ill, § 54 as it then stood. It required that before a county might assist financially in the construction of a railroad there had to be authority from the General Assembly together with certain published notice. 4 Immediately after that which we have quoted from Drum Point and which is cited by the appellant, the Court said: "For if the constitutional requirement be held to be directory only, the publication might be for half the time prescribed, or it might be omitted all together, and yet the power would be effective. This was never the design of the constitutional provision; and therefore all the conditions prescribed should be strictly observed; they are all equally essential to the authority attempted to be conferred. Or, as said by the Supreme Court, in Young v. Clarendon, 132 U.S. [340,] 349 [(1889)], 'they are of equal importance under the law, and one cannot be dispensed with more than another.

Neither is directory, but all are mandatory.’ The question is not what, in the absence of a constitutional restriction, would constitute a valid legislative grant of power, but what the Constitution itself requires; and as the two months publication of the Act of 1872 was essential as one of the conditions precedent to a valid confirmatory Act, and that publication was not duly made, as required by the constitutional provision, all the constitutional requirements were not complied with, and ⁶⁵⁴ therefore there was no legal or valid authority conferred and confirmed by the Acts of 1872 and 1874.” 74 Md. at 112-13 . Dutton, 225 Md. 484 , was a postelection challenge to a referendum relative to Ch. 269 of the Acts of 1959, an act to confirm the compact with the State of Virginia relating to the Potomac River. The employees of the Secretary of State of Maryland published the notice concerning the referred law pursuant to the provisions of an earlier act rather than as required by Ch. 739 of the Acts of 1957. The validity of the compact was challenged for that reason.

The Court referred to the large number of votes cast on the proposition ("larger than that cast for and against all but two of the fifteen constitutional amendments voted on at the same time”) and to the extensive preelection publicity. It said the latter included the speech by William J. McWilliams (later a member of this Court) which "discuss[ed] exhaustively all of the aspects and particulars of the proposed compact on June 18, 1959, before lawyers from all over the State assembled at Atlantic City for the meeting of the Maryland State Bar Association.” In upholding the compact against the challenge, Judge Hammond said for the Court: "In factual situations comparable to that before us, courts have supported the upholding of elections despite only partial compliance, or even non-compliance, with modal provisions as to notice or the holding of elections on various grounds. Some have found substantial compliance with statutory requirements, others have said that provisions would be construed as mandatory before election but as directory after the election had been fairly held. The latter reasoning, as we have suggested earlier, may be an imprecise, if not inaccurate, rationalization of what Judge Marbury said for the Court in Wilkinson v. McGill, supra, at page 393 of 192 Md., that when an election has been held and it is not shown that the failure of election officials to hew strictly to the statutory line has prevented a ⁶⁵⁵ full and fair expression of the will of the voters the Courts will not disturb the result.

All of the cases turn fundamentally on whether the mistake in procedure has caused harm by misleading the electorate or by tending to prevent or frustrate an intelligent and full expression of the intent of the voters.” Id. at 495. In Wilkinson v. McGill, 192 Md. 387 , 64 A.2d 266 (1949), an act was not to be effective until submitted to voters at a special election to be held on January 22, 1948. The challenge was based upon an alleged improper registration held on December 20,1947, and the further fact that the original advertisement called for a polling place in one district which had been used for many years but, when it became unavailable, a bowling alley was used in its stead, with advertisement of that fact. Unfortunately, a prohibition existed against using a bowling alley as a voting place.

Chief Judge Marbury said for the Court, "There have been a number of cases in this Court in which irregularities have been asserted to render elections void and the Court has uniformly adopted the construction above set out where the irregularities did not affect the result.” 192 Md. at 393 . The "construction above set out” was that "[t]here is a clearly recognized difference between the interpretation given to provisions of the election laws before election and the construction of these same provisions after election.” Id. The Court held relative to the notice and the place of holding election, "[N]one of them are shown to have affected the ultimate result, and, as mere irregularities, they should not be allowed to set aside what the voters have decided.” Id. at 395 . (As to the challenge relative to alleged illegal registration, the Court said the plaintiffs had failed to meet their burden.) In Wilkinson , the Court distinguished Graf v. Hiser, 144 Md. 418 , 125 A. 151 (1924).

The legislative act with which the Court was concerned in Graf created a special taxing district in Prince George’s County. The notice posted relative to the special election to be held concerning the estab ⁶⁵⁶ lishment of the district, in the words of the Court, "defin[ed] the qualifications of those who would be allowed to participate in the election [in a manner] materially different ... from that prescribed by the statute. It was the plain meaning of the notice actually posted that the franchise should be limited to resident taxpayers, while the act extended it to all who had the qualifications of 'legally registered voters’ and who had resided in the district for the period mentioned.” Id. at 420 . The Court pointed out "that there was a serious defect in the notice which the act made a prerequisite to the election at which the question of its ratification or rejection was to be submitted,” and that this notice "was not a substantial compliance with that essential condition precedent ____” Id. at 421 .

It held: "The inquiry here is whether an act of assembly has become operative. According to its own terms it could take effect only in the event that certain conditions were fulfilled. Those conditions were that a specified notice should be given to the qualified voters of the described district, that an election should be held in pursuance of the notice, and that a majority of the votes cast at such election should be in favor of making the act effective. The charge in this case is not that the election was fraudulent or that the vote was not truly returned, but that an important act which the statute required to precede the election, and without which it could not be validly held, was not properly performed, and that specific directions, as to the basis of voting eligibility upon which the election was to be conducted, were not obeyed.” Id. at 422 .

Thus, it concluded "that the statute in dispute is not in force because the conditions under which it was to become effective have not been satisfied.” Id. at 423 . Further understanding is obtained when we compare Graf with Carr v. Hyattsville, 115 Md. 545 , 81 A. 8 (1911), yet another postelection challenge. There the legislative enactment required a referendum relative to improvements of ⁶⁵⁷ streets. The act required the question printed on the ballot to be "For the Act to Improve the Streets” and "Against the Act to Improve the Streets.” What was printed was "For the road bill” and "Against the road bill.” Judge Burke said for the Court: "The plain purpose of the Legislature was that this act should become effective if approved by a majority of the voters of the special election, and the object of providing the form of ballot was to ascertain the will of the majority of the voters on the question of its approval, and since that majority did approve the act under the form of ballot used, which was substantially, but not strictly, in the words provided in the act, the will of the majority should not be set aside for any of the reasons stated in the bill.

The voters undoubtedly knew they were voting upon the question of the approval or disapproval of the act, and having settled that question at a fair election the object which the Legislature had in view has been gratified, and the act should be held to be in full force and effect. This conclusion is supported by what appears to be the great weight of authority in the American Courts.” Id. at 550-51 (citing cases). Accord, Lexington Park v. Robidoux, 218 Md. 195 , 146 A.2d 184 (1958). Tyler v. Secretary of State, 229 Md. 397 , 184 A.2d 101 (1962), is a preelection case.

There the petition sought to suspend the operation of a statute pending referendum. The Court said: "The question