Ritchmount Partnership v. Board of Supervisors of Elections

Levine, J., delivered the opinion of the Court. We consider in these two appeals the constitutionality of Article III, § 308 of the Charter of Anne Arundel County and specifically whether the people of a home rule county may ⁵¹ confer upon themselves the power of referendum over local legislative enactments, where such power was neither delegated by act of the General Assembly nor expressly reserved to the inhabitants of charter counties by the Constitution of this State. 1 In ratifying § 308, the voters of Anne Arundel County sought to retain the right to approve or reject by way of petition and popular election ordinances of the Anne Arundel County Council. Appellants, who own real property situated in northern Anne Arundel County, instituted these separate suits in the Circuit Court for Anne Arundel County (Childs, J.), challenging the validity of § 308 and a 1974 zoning referendum held pursuant thereto. 2 The trial court issued a declaratory decree upholding the referendum article and election. Because of the singular importance of the constitutional question to the fundamental structure and administration of local government in Maryland, we granted certiorari to review these companion cases prior to their consideration by the Court of Special Appeals.

We now affirm. Early in October 1972, the Anne Arundel County Council (the County Council) enacted Bill No. 136-72, adopting comprehensive zoning maps for the northern portion of the County’s third assessment district in which appellants’ property is located. That same day the County Council gave its approval to a total of 97 individual amendments, 14 of which were successfully vetoed by the County Executive. 3 The remaining 83 amendments and original Bill No. 136-72 finally went into effect on December 2, 1972. As a result of the passage of Bill No. 136-72, appellants’ properties were reclassified to permit commercial and light industrial uses in lieu of prior primarily residential restrictions. ⁵² In the meantime, a contingent of property owners dissatisfied with the 1972 zoning legislation commenced a suit in equity to restrain County authorities from enforcing Bill No. 136-72.

The Circuit Court for Anne Arundel County granted the desired relief, declaring the ordinance to be void in its entirety on account of the County Council’s failure to comply strictly with the dictates of § 307 of the county charter setting forth certain procedural requirements for the amendment of local ordinances. On appeal this Court, in Anne Arundel County v. Moushabek, 269 Md. 419, 430-31 , 306 A. 2d 517 (1973), affirmed the decision of the chancellor insofar as it invalidated all 83 amendments, but modified the decree so as to resurrect the original unamended version of Bill No. 136-72. In the wake of Moushabek , the County Council acted swiftly to pass emergency legislation, Bill No. 52-73, which was designed to repeal what remained of Bill No. 136-72 and reenact it, this time with the provisions of the judicially stricken 83 amendments incorporated directly into the text of the new law. Instead of challenging the new ordinance through litigation, opponents of this latest zoning action undertook to defeat it by appealing to the voters of Anne Arundel County.

Accordingly, a petition for referendum bearing the requisite number of signatures was filed in timely fashion with the Board of Supervisors of Elections of Anne Arundel County (the Elections Board), which, in accordance with the provisions of § 308 of the Charter, ordered the question placed on the ballot for the upcoming general election. 4 On November 5, 1974, the voters of Anne Arundel County rejected Bill No. 52-73 by a decisive margin. ⁵³ In an effort to annul the results of the November referendum and thereby to revive the ill-fated Bill No. 52-73, appellants commenced the present actions, claiming that the Elections Board lacked authority to approve the citizen referendum petitions. It was argued that § 308, which created the right to hold local referenda in the first instance, was itself invalid, being an exercise of power allegedly in excess of that vested in counties adopting a charter form of government under the Home Rule Amendment to the State Constitution, Md. Const., Art. XI-A, and the Express Powers Act, Maryland Code (1957,1973 Repl. Vol. & 1977 Cum. Supp.) Art. 25A, § 1 et seq.

Ruling in favor of the constitutionality of the charter referendum article, the lower court concluded that Bill No. 52-73 had been properly presented to the electorate of Anne Arundel County and therefore had been effectively repealed. In so holding, the chancellor was thus required to ascertain what, if any, prior zoning legislation governed the permissible use of appellants’ real estate following the popular repudiation of Bill No. 52-73. Rejecting appellants’ suggestion that the repeal of Bill No. 52-73 had created a zoning vacuum, leaving their property free from land use controls altogether, the trial court ruled that the defeat of the ordinance automatically revived predecessor Bill No. 136-72 in its unamended form — a result which, in the chancellor’s opinion, was mandated by our holding in Anne Arundel County v. Moushabek, supra, 269 Md. 419 . In the appeals before us, appellants challenge both the legality and effect of the 1974 zoning referendum.

We turn first to the question of the constitutionality of the Anne Arundel County charter referendum article. I The crux of appellants’ constitutional assault on § 308 is that when the people of Anne Arundel County framed and ratified their county charter in 1964, they, like the inhabitants of the state’s seven other charter counties (Baltimore, Harford, Howard, Montgomery, Prince George’s, Talbot, and ⁵⁴ Wicomico), possessed no power to repeal or amend legislative enactments of the County Council, except that which had been explicitly conferred upon them by organic or statutory law. It is argued that, save for certain provisions relating to the issuance of county bonds (Art. 25A, § 5 (P) (1) (ii)), there was nothing to be found in either the Constitution or the acts of the General Assembly which even remotely resembled a grant of the referendum power to the voters of Anne Arundel County, at least as of the time of the zoning referendum in November 1974. 5 Thus, say appellants, § 308 must be deemed a nullity, since it purports to reserve to the county citizenry a power which it had never validly acquired. 6 Resolution of the complex constitutional claim presented in these cases turns on the nature and scope of the rights of local self-government guaranteed to county residents by Article XI-A of the Constitution as implemented by Article 25A. From the time of . the establishment of the first county administration (St. Mary’s) around the' year 1637, see 1 J. Scharf, History of Maryland 123 (1967 ed.), to the first decade of the twentieth century, residents of Maryland’s 23 counties enjoyed no appreciable measure of local self-determination.

Being nothing more than political subdivisions of the state, counties were considered to be mere administrative ⁵⁵ instrumentalities of state government, public corporations, subject at all times to the plenary control of the Legislature and possessing only those limited powers which had been delegated by the General Assembly, together with such implied powers as were necessary for the execution of the powers expressly granted. Howard County v. Matthews, 146 Md. 553, 561 , 127 A. 118 (1924); County Comm’rs of Talbot County v. County Comm’rs of Queen Anne’s, 50 Md. 245, 259 (1879); Baltimore v. State, 15 Md. 376, 462 , 74 Am. Dec. 572 (I860). For the historical background of early county government in Maryland, see J. McMahon, An Historical View of the Government of Maryland 79-97 (1831).

By and large, these delegated powers of local government were wielded by county commissioners who, like members of the levy and provincial courts before them, were administrative officials concerned primarily with the collection and disbursement of revenues to pay for needed county services. Code (1957, 1973 Repl. Yol. & 1977 Cum. Supp.) Art. 25; City of Bowie v. County Comm’rs, 258 Md. 454, 461-62 , 267 A. 2d 172 (1970); Schneider v. Lansdale, 191 Md. 317, 324-26 , 61 A. 2d 671 (1948); Cox v. Anne Arundel County, 181 Md. 428, 433-34 , 31 A. 2d 179 (1943).

As for county residents, beyond the right to elect county commissioners and state legislators, they had limited authority to control or shape the form of county government, a matter which had always been dictated by the General Assembly. Lacking constitutional recognition as a distinct political entity within the state, Maryland v. Baltimore & Ohio R.R. Co., 44 U. S. (3 How.) 534 , 550-51, 11 L. Ed. 714 (1845), aff’g, 12 G. &. J. 399, 38 Am.

Dec. 317 (1842), the county electorate, as such, could not effectively direct or influence the formulation of policy affecting purely local concerns. The waning years of the nineteenth century witnessed the birth of a national movement, the purpose of which was to restore and revitalize local government by giving citizens of counties and municipalities the power to legislate as to local matters free from undue encroachment by state legislatures. In Maryland, as elsewhere, the “Home Rule” movement was fueled by widespread public indignation over excessive ⁵⁶ legislative interference with and insensitivity toward local problems and concerns, and by a growing dissatisfaction with the enormously inefficient system of performing local law-making functions at the state level. J. Hurst, The Growth of American Law 234 (1950); see Steimel v. Board, 278 Md. I, 6-7, 357 A. 2d 386 (1976); City of Baltimore v. Sitnick & Firey, 254 Md. 303, 311-12 , 255 A. 2d 376 (1969); Scull v. Montgomery Citizens, 249 Md. 271, 274 , 239 A. 2d 92 (1968).

It was this popular demand for increased local autonomy that led ultimately to the ratification of Article XI-A at the general election of November 1915. The theory behind the principle of home rule is that the closer those who make and execute the laws are to the citizens they represent, the better are those citizens represented and governed in accordance with democratic ideals. State v. City of Milwaukie, 231 Or. 473 , 373 P. 2d 680, 685 (1962). It is said that since the opportunity for popular participation and maximum public awareness of government is greatest at the local level, the likelihood of governmental arbitrariness and imposition is diminished by strengthening local political control over local concerns.

See Fordham, Decision-Making in Expanding American Urban Life, 21 Ohio St. L. J. 274, 275 (1960). Although this Court has stated that the Home Rule Amendment was intended to secure to the citizens of Maryland “the fullest measure of local self-government” in respect of their local affairs, State v. Stewart, 152 Md. 419, 422 , 137 A. 39 (1927), Article XI-A in actuality does not constitute a grant of absolute autonomy to local governments^ J. Spencer, Contemporary Local Government in Maryland 21 (1965). Rather, by providing for the transfer to the counties, within well-defined limits, of legislative powers formerly reserved to the General Assembly, Article XI-A affords chartered counties a certain measure of independence from the State Legislature. County Council v. Investors Funding, 270 Md. 403, 418 , 312 A. 2d 225 (1973); Murray v. Director of Planning, 217 Md. 381, 389 , 143 A. 2d 85 (1958).

For a general discussion of county self-government in Maryland, see Moser, County Home Rule — Sharing the ⁵⁷ State’s Legislative Power with Maryland Counties, 28 Md. L. Rev. 327 (1968). The exercise of local legislative powers is subject at all times to provisions of the Constitution and general law, and is limited to those matters allocated by the express powers which the Legislature has delegated under Article 25A of the Annotated Code. Md. Const., Art. XI-A, §§ 1 & 3; Mont Citizens League v. Greenhalgh, 253 Md. 151, 158 , 252 A. 2d 242 (1969); J. Spencer, Contemporary Local Government in Maryland 22 (1965). Article XI-A does not in and of itself confer legislative power upon the counties.

Instead it mandates that the General Assembly expressly enumerate and delegate those powers exercisable by counties electing a charter form of government. Md. Const., Art. XI-A, § 2. In compliance with this constitutional injunction, the Legislature enacted in 1918 the Express Powers Act, which, as amended, endows charter counties with a wide array of legislative and administrative powers over local affairs. Art. 25A, § 5.

These “legislative powers” are those usually associated with the objects of government — that is, powers to legislate for the benefit of the health, safety and general welfare of the local community. 7 Once a particular power has been delegated under Article 25A, the Home Rule Amendment forbids the State Legislature from enacting any further public local laws within the scope of the express power so granted, Art. XI-A, § 4; State’s Atty v. City of Balto., 274 Md. 597, 606 , 337 A. 2d 92 (1975), until such time as the Legislature withdraws the power by public general law. Moreover, under Art. XI-A, § 3 the county council of a chartered county has full power to enact local laws and to repeal or amend local laws of the General Assembly applicable solely to the county, so long as the county legislation is covered by one or more of the express powers enumerated in Article 25A. ⁵⁸ Despite the expansive grant of authority effected by the Express Powers Act, the legislative power of Maryland’s charter counties nevertheless remains vulnerable to amendment or perhaps even extinction at the discretion of the Legislature. Moser, County Home Rule, 28 Md. L. Rev. 327 , 342-43 (1968). This is because the local law-making power exists by reason of a statutory grant of authority; the legislative power of a charter home rule county is not and never has been constitutionally secured.

There are, however, certain powers implicit in Article XI-A which do not qualify as legislative powers and which do not require implementing legislation to render them operative. These powers necessarily proceed from § 1 of the Home Rule Amendment and have as their object the initial organization and formation of charter government in the counties. See Appendix. Article XI-A, § 1 effectively reserves to the people of this state the right to organize themselves into semi-autonomous political communities for the purpose of instituting self-government within the territorial limits of the several counties.

The means by which the inhabitants acquire such autonomy is the charter. Being, in effect, a local constitution, the charter fixes the framework for the organization of the county government. In re Pfahler, 150 Cal. 71 , 88 P. 270, 275 , 11 L. R. A., N.S., 1092 (1906); cf. Harford County v. Schultz, 280 Md. 77, 85 , 371 A. 2d 428 (1977); Anne Arundel County v. Moushabek, supra, 269 Md. at 422 (charter is to local legislative body as Constitution is to General Assembly). It is the instrument which establishes the agencies of local government and provides for the allocation of power among them.

From beginning to end, the charter adoption and ratification process is an act of the people, an expression of the local popular will to which the Maryland Constitution has attached fundamental legal significance. Thus, the preamble to the Charter of Anne Arundel County provides in its entirety: “We, the People of Anne Arundel County, State of Maryland, in order to form a more orderly County government, establish separate legislative and ⁵⁹ executive branches, insure responsibility of and accountability for public funds, promote the general welfare and secure the benefits of home rule, do, in accordance with the Constitution and the laws of the State of Maryland, adopt, ordain, and establish as our Charter and form of government this Charter of Anne Arundel County, Maryland.” Furthermore, under the procedures set out in §§ 1 and 1A of Article XI-A, a proposed charter cannot become operational until it receives the imprimatur of the people through ratification at a popular election. From this it can be seen that the power to establish and organize local government springs directly from Article XI-A and thus lies beyond the competence of the General Assembly or any other branch of state government to alter or erase. Consequently, in adopting a home rule charter the people have the right to make provision therein for any form of government they deem suitable for their needs, so long as they do not in the process run afoul of the letter and spirit of the Federal and State Constitutions.

Their right to adopt a particular form of government, in contradistinction to the power to enact local legislation, is in no way dependent on legislative authorization or enactment. See State v. City of Lincoln, 137 Neb. 97 , 288 N. W. 499, 502 (1939); see In re Pfahler, supra, 88 P. at 275 . To summarize then, Article XI-A was intended to encompass two distinct categories of home rule powers: the power to enact local law (legislative power) and the power to form and establish local government. Thus, with regard to the present appeals, it is incumbent upon us to determine in which of these two classes of home rule powers the right to referendum by petition secured by § 308 properly belongs.

If the referendum is a power arising under § 1 of Article XI-A, that is, one respecting the formation and structure of local government, we need look no further to identify the grounds for upholding the constitutionality of § 308, since the referendum would then have been a power vested directly in the people of Anne Arundel County under the Home Rule Amendment. But if the referendum falls outside the ambit of ⁶⁰ Article XI-A, § 1, its exercise must have been expressly authorized by the Legislature. By the term “referendum,” we mean that power of direct legislation through the exercise of which the people of a state or a political subdivision may approve or reject an act or other measure passed by a legislative body. Anne Arundel Co. v. McDonough, 277 Md. 271, 283 , 354 A. 2d 788 (1976); Beall v. State, 131 Md. 669, 678 , 103 A. 99 (1917). 8 It is customary to draw a distinction between compulsory referenda on the one hand and optional or “facultative” referenda on the other.

Where the Legislature directs that a given statute not take effect until and unless approved by a vote of the electorate, it is described as “compulsory.” See, e.g., Bradshaw v. Lankford, 73 Md. 428 , 21 A. 66 , 11 L. R. A. 582 (1891); Hammong v. Haines, 25 Md. 541, 90 Am. Dec. 77 (1866); Burgess v. Pue, 2 Gill 11 (1844). Where, however, the people are authorized, usually by constitutional reservation, to require submission of a bill for their approval by petition, even though the Legislature is silent on the matter of a plebiscite, the voters are said to possess the power of facultative referendum. It is to this latter category that § 308 of the Anne Arundel County Charter belongs. 9 ⁶¹ Described recently by the United States Supreme Court as a “basic instrument of democratic government,” Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668, 679 , 96 S. Ct. 2358 , 49 L.Ed.2d 132 (1976), and by the California Supreme Court as “one of the outstanding achievements of the progressive movement of the early 1900’s,” Associated Home Builders v. City of Livermore, 18 Cal. 3d 582 , 135 Cal.

Rptr. 41 , 557 P. 2d 473, 477 (1976), the referendum is an integral component of the