Reed v. President of North East

Sybert, J., delivered the opinion of the Court. The appellant, as a taxpayer, brought this suit in the Circuit Court for Cecil County to test the validity of a proposed bond issue of the Town of North East. His petition prayed declaratory and injunctive relief against the effect of two resolutions passed to amend the charter of the municipal cor ²³⁵ poration for the purpose of authorizing the issuance and sale of $235,000 of general obligation bonds of North East in order to construct a water treatment plant and accessory-equipment and thus remedy the inadequacies of the Town’s existing water supply system. The Town Charter (§§ 221-275, Code of Public Local Laws of Cecil County, 1953 ed.) contains provisions for the issuance of general obligation water bonds, which provisions were enacted by the General Assembly as public local laws prior to the effective date of Article XI-E of the Constitution of Maryland, known as the Municipal Home Rule Amendment, approved November 2, 1954.

Under those provisions, the Town established its original water supply system from the proceeds of bonds issued in 1946 and in 1948. The system has proven unsatisfactory and extensive improvements are now contemplated, including construction of the water treatment plant. The two resolutions now under attack are amendatory of § 274 of the County Code, one of the Charter provisions of the Town. These Charter amendments were passed in pursuance of the authority given the municipalities in Maryland, other than Baltimore City, by the Municipal Home Rule Amendment and by the implementing legislation enacted by Chapter 423 of the Acts of 1955, adding §§ 9 to 43 to Art. 23A of the Maryland Code—specifically pursuant to § 13 of said Article.

The first amendatory resolution, adopted by the President and Commissioners of the Town on November 19, 1959, authorized the issuance of bonds in the amount of $300,000 (including the $150,000 sold in the 1946 and 1948 issues), and provided that the new issue should be made in accordance with the terms and conditions of a resolution or ordinance to be passed in conformity with and pursuant to the authority of §§ 31 through 39, Art. 23A, Code, and also provided that no prior referendum should be necessary in connection with any issue of bonds under § 274 as had theretofore been required by that section. No referendum petition was filed relative to this resolution as permitted by § 13 of ²³⁶ Art. 23A, Code, and therefore the resolution was declared effective as amending the Town’s Charter on January 8, 1960. The Town Commissioners caused plans to be prepared for the improvements to the water system and obtained a permit from the State Department of Health to proceed with the work. However, it became apparent that additional money would be required and question was raised as to whether the amount of bonds authorized by the resolution of November 19, 1959, could legally be issued.

Furthermore, in order to economize on the costs of issuance, the Commissioners desired to have the authority to negotiate a private sale of the bonds. Accordingly, on July 19, 1960, the second of the resolutions intended to amend the Charter of the Town was passed. This resolution provides for the issuance of bonds in the aggregate amount of $385,000, which includes the $150,000 issued in 1946 and 1948, the $150,000 authorized under the resolution of November 19, 1959, and $85,000 in. additional bonds, with the result that $235,000 in new funds would now be made available. It also provides that the “bonds may be sold at private sale without advertisement or publication of notice of sale or solicitation of competitive bids, any public general or public local law to the contrary notwithstanding,” if the resolution or resolutions actually authorizing the issuance of the bonds shall so specify.

Section 2 of the resolution provides that the amendment to the Charter of the Town proposed by the resolution should become effective on September 9, 1960, unless a proper petition for a referendum thereon should be filed as permitted by law, “provided a complete and exact copy of this resolution shall be posted in the Town Hall of North East until August 30, 1960, and provided further that a copy of the title of this resolution shall be published in ‘Cecil Whig’ and ‘Cecil Democrat’ newspapers of general circulation in the Town of North East once in each of the weeks of July 27, August 3, 10 and 17, 1960.” As no referendum petition was filed with respect to this resolution, it was declared effective under its terms on September 9, 1960. The Town Commissioners acquired a tract of land as a ²³⁷ site for the treatment plant and entered into negotiations with a financial institution for the private sale of the bonds authorized by the resolutions. Thereupon the appellant, as a taxpayer (and voter and resident) of North East, brought this action seeking a declaration of invalidity of the two amendatory resolutions and an injunction prohibiting issuance of the bonds. Both below and here the appellant made the following contentions : (1) The Town Commissioners who voted to adopt the two amendatory resolutions were neither de jure nor de jacto officers of North East at the time of passage and both resolutions are therefore void and without amendatory effect.

(2) Even if the Commissioners were de jacto officers at the time of passage, the public policy rule which might be applied to validate their ministerial acts is nevertheless inapplicable to validate their attempt to enact basic legislation under the Home Rule Amendment to the Maryland Constitution. (3) The title of the second resolution was not published in one of the two local newspapers, as required by the resolution, and hence the resolution itself, by its own terms, did not become effective. (4) The provision of the second resolution permitting private sale of water bonds is invalid because it conflicts with the express requirement of public sale set forth in § 34 (4) of Art. 23A, Code, on the ground that that section is binding on all Maryland municipalities (except Baltimore City). The chancellor found in favor of the appellee Town on all points.

He held, in his written opinion, that the President and Commissioners are at least de jacto officers and as such competent to pass the resolutions and to take all other action necessary in the issuance and sale of the bonds; that the requirement of publication in two newspapers was directory and not mandatory, and that publication in one newspaper was substantial compliance with the requirement; and that the provision in Code, Art. 23A, § 34 (4) for public sale of municipal bonds is inapplicable because under § 31 of ²³⁸ that Article the procedure established by a municipal charter for the sale of bonds shall be paramount in case of any conflict. In his opinion, the chancellor stated that in view of his findings a declaratory decree would be unnecessary and he simply signed an order dismissing the petition of the appellant. Additional facts will be stated, as necessary, in our consideration of the points raised by appellant. (1) and (2) Since these questions are inter-related, we shall consider them together.

From the record it appears that the holding of elections for President and Commissioners of North East (hereinafter sometimes called “Board”) has been somewhat sporadic. Section 223 of the County Code provides for annual elections of the Commissioners of that Town, to be held on the third Monday in March. A President and two Commissioners are to be elected in odd-numbered years to serve terms of two years each, or until their successors are elected and qualified, and the remaining two Commissioners are to be elected in even-numbered years, also to serve terms of two years each, or until their successors are elected and qualified. Section 224 (c) requires any candidate to file a certificate of candidacy at least ten days before the third Monday in March.

Section 225 requires the Board annually to designate the hours and place of holding elections by giving ten days’ notice posted in five prominent places in the town. Section 228 requires every elected President and Commissioner to take an oath of office, prior to entering office, before a justice of the peace of Cecil County, whose duty it is to return a certificate of qualification to the Board to be filed and recorded among its proceedings. At least since 1952, elections have been “few and far between”. Without unduly extending this opinion, suffice it to say that the five Commissioners who were in office at the time of the adoption of the 1959 resolution, as well as the four Commissioners who held office at the time of the adoption of the 1960 resolution (there being one vacancy at that time) had initially either been elected or ap ²³⁹ pointed as President or Commissioner as the case might be.

During each of the years in which elections were not held, the record shows that notices of registration for election were posted as required by the Town’s Code, and in those years in which no applications for election were received, no elections were held and the incumbent President and Commissioners simply continued to serve. It appears that this procedure was followed in the interest of saving expense and not with any idea of perpetuating the incumbent Commissioners in office. It does not appear from the record that any citizen of North East ever raised any question concerning a deprivation of the right to vote for members of the Board. The last election actually held was on March 18, 1957 (more than two years prior to adoption of the first amendatory resolution), at which the President and one Commissioner were re-elected.

On December 4, 1958, a new Commissioner was appointed by the President and remaining Commissioners (as provided by § 227) to fill an existing vacancy until the March, 1959, election. In addition, the record reveals that over the years, with few exceptions, the Commissioners appointed or elected, either took no oath of office at all or did so before the President of the Board. It was also shown that in most cases those Commissioners who simply held over after expiration of terms to which they had been elected or appointed took no further oaths of office during the “hold-over” terms. An exception was the taking of an oath of office before a county justice of the peace by the President and one Commissioner on July 21, 1960, the date of the second amendatory resolution.

Appellant points to the above mentioned requirement of § 228 of the County Code that the President and Commissioners shall, before they enter upon the duties of their office, take an oath before some justice of the peace of the county and that the justice shall return a certificate of such qualification. While § 253 of the County Code gives the President of the Board “* * * within the limits of the town all the jurisdiction and power of a justice of the peace, except as to the recovery of small debts * * appellant argues ²⁴⁰ that this provision is nugatory since a justice of the peace can only be a person appointed by the Governor with the advice and consent of the Senate under Article IV, § 42, of the Maryland Constitution, and that in any event § 228 requires the oath to be taken before some justice of the peace of the county duly appointed and approved in accordance with the constitutional provisions. Appellant makes the further point that no certificate of qualification, as required by § 228, has been filed since 1952 with regard to any person serving on the Board. From the whole record before us, it is clear that all those who were incumbents at the time of the adoption of the resolutions were “hold-overs” claiming office under color of election or appointment and continuing to serve after expiration of terms to which they had either been elected or appointed.

The appellees contend that the President and Commissioners were at least de facto officers, and that all their acts as such officers, including adoption of the two amendatory resolutions and other necessary action with respect to issuance of the bonds, are to be taken as valid and binding in the same manner as if they had been performed by de jure officers. It has long been recognized in this State, as elsewhere, that the public interest requires, in the absence of any provision to the contrary, that public offices should be filled at all times, without interruption. In accordance with that policy, § 13 of Art. II of the Maryland Constitution provides that all civil officers appointed by the Governor and Senate shall, except in cases otherwise provided for in the Constitution, continue to hold office until their successors qualify according to law. In Claude v. Wayson, 118 Md. 477 , 84 Atl. 562 (1912), this Court had occasion to construe that section in connection with § 42 of Art. IV of the Constitution, which provides that the term of justices of the peace shall be two years, without any further qualification.

The Court held that justices of the peace do not hold over by virtue of Art. II, §13, until their successors qualify, but that they do continue as de facto officers until their successors are appointed and have qualified. ²⁴¹ In the case of Archer v. State, 74 Md. 410 , 22 Atl. 6 (1891), this Court considered the status of a State Treasurer who was elected and properly qualified, and who was later re-elected to a second term but who failed to take an oath of office and give a bond, as required by the Maryland Constitution, until his second term had almost expired. The Constitution then provided that the term of office was for two years, and until his successor should qualify. In deciding that he held over in the office, and that his original bond was liable for defalcations in the second term, until he filed the new bond, the Court said (at pages 427-428 of 74 Md.) : “* * * The length of the term of office seems to be accurately defined by the words of the Constitution. They are neither obscure nor ambiguous; they declare that the Treasurer’s term is for two years, and until his successor shall qualify.

It must be for two years at the least, and is still further to continue until the occurrence of a distinct, definite and unequivocal event. The term begins when the Treasurer qualifies, and it expires when his successor qualifies. The beginning is fixed and the end is fixed; the demarcation of its limits seems to be sufficiently clear. * * *” It may be noted that many of the statutes creating public offices, state or local, contain similar provisions that the officers shall hold over until their successors qualify, and this is true of the Charter of North East with respect to the President and Commissioners, as stated previously in this opinion. In Izer v. State, 77 Md. 110, 26 Atl. 282 (1893), this Court sustained the validity of an indictment for perjury based on an oath administered by the Deputy Clerk of the Circuit Court for Allegany County, who had continued to act as such although not reappointed or sworn in for a second term when the Clerk was re-elected.

The Court stated (at page 115 of 77 Md.) : ²⁴² “* * * Williamson was then in the undisputed possession of the office of deputy clerk, and since 1886 had openly and notoriously discharged the duties pertaining thereto. He was at least a de jacto officer, filling a de jure office, and. whatever defects or irregularities there may have been in the manner of his appointment or qualification, his acts, done under color of title, are, upon grounds of public policy and necessity, valid and binding. Norton vs. Shelby County, 118 U. S., 425 . Or, as was said in Carleton vs. The People, 10 Mich., 259 : ‘All that is required when there is an office, to make an officer de jacto, is that the individual claiming the office is in possession of it, performing its duties and claiming to be such officer under color of an election or appointment, as the case may be.

It is not necessary that his election or appointment be valid, for that would make him an officer de jure. The official acts of such persons are recognized as valid on grounds of public policy, and for the protection of those having official business to transact.’ * * *” This Court has held that an elected or appointed officer may remain in office at the expiration of his term and is entitled to exercise the powers of the office until his successor qualifies, whether or not the statute creating the office so provides. As stated in Benson v. Mellor, 152 Md. 481 , 137 Atl. 294 (1927), at pages 486, 487 and 491: “* * * And it has long been established in this state, as elsewhere, that an officer regularly holds over in office beyond the election to the qualification of his successor, because it could not be supposed that the law intended offices to be vacant after every election during the time that must necessarily elapse before the returns are canvassed, the result is certified, and the new officers are commissioned and qualified. We find the rule to be that, in the absence of an intention manifested to the contrary, all of ²⁴³ ficers continue to hold their offices until they are superseded by duly commissioned and qualified successors, whether it is or is not so provided in terms in the constitution or statutes. ifc jjc í¡< “The controlling, if not the sole consideration has been that the law requires, in the public interest, that the offices be filled at all times, without interruption, and to this end the intention and understanding that incumbents shall hold until their successors qualify, has grown up and taken position as part of the law; and according to the law as it has been laid down for us, it is upon this provision or rule that dependence is placed primarily for having the offices continuously filled, notwithstanding any delay or failure in the election of successors in ordinary course.” (Emphasis supplied.) Benson v. Mellor, supra, is cited in Co. Comrs. v. Supervisors of Elec., 192 Md. 196, 208 , 63 A. 2d 735 (1949), in support of the statement that “One basic rule for the construction of the Constitution is that it be not so construed as to prevent the filling of vacancies, or to create an interregnum in office.” Benson v. Mellor was again cited with approval in Walker v. Talbot County, 208 Md. 72 , 116 A. 2d 393 (1955), where it was held that a county commissioner serving ex officio as a member of the county’s zoning commission, properly served as a hold-over member of the zoning commission on his re-election as county commissioner, without an additional appointment.

A comprehensive and often quoted definition of what constitutes a de facto officer, cited in part by Judge Markell for the Court in Buckler v. Bowen, 198 Md. 357 , 84 A. 2d 99 (1951), is found in the leading case of State v. Carroll, 38 Conn. 449 (1871), and reads as follows (at pages 471-472) : “An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they in ²⁴⁴ volve the interests of the public and third persons, where the duties of the office were exercised, “First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. “Second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like. “Third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public. “Fourth, under color of an election or an appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such.” It would seem beyond dispute that the above definition includes within its ambit the President and members of the Board of North East. See annotation at 71 A.L.R. 848 . The appellant,