Scull v. Montgomery Citizens League

Hammond, C. J., delivered the opinion of the Court. The Charter of Montgomery County provides, as Art. XI-A of the Constitution of Maryland entitled “Local Legislation” requires, for an elected Council which sits for a specified time each year to enact laws for the County. The Charter also provides, as Art. XI-A permits, that the Council is to act as the Chief Executive authority of the County. On July 20, 1967, the Council, sitting in executive session, adopted Ordinance 6-42, entitled “Fair Housing” effective August 19, 1967, to prohibit discrimination in the sale, lease, rental and financing of residential housing on the basis of race, color, creed, ancestry or national origin.

On August 23 the appellees filed suit in the Circuit Court against the Council and other interested agencies and officials, alleging the ordinance to be invalid for various reasons, including (a) the allegations that it unconstitutionally deprived them of “freedom to contract,” and abridged their liberty and property protected by the Four ²⁷⁴ teenth Amendment, as well as their freedom of speech protected by the First Amendment; and (b) the final allegation that the ordinance, if it could constitutionally be enacted at all, could be enacted only by the Council while sitting in legislative session and could not be adopted in the executive session of the Council, as it was. Judge Shook dealt with and decided only the question of the legality of the procedures of enactment of the ordinance, holding that the Council lacked the power to pass the ordinance in executive session. We agree with Judge Shook’s determination and, even as she did, find no need to go into questions of constitutionality or construction and express no opinion on those points. The purpose of Art. XI-A, to take from the General Assembly and give to counties which became chartered the exclusive power to enact local laws, was referred to in State v. Stewart, 152 Md. 419 , and the Charter which Montgomery County adopted in 1948 was discussed and passed on in part in Schneider v. Lansdale, 191 Md. 317 (Schneider), which held that the traditional and long exercised power of the County Commissioners to adopt budgets and levy taxes was not a legislative power within the meaning of Art. XI-A. The two main reasons for local home rule were to reduce or eliminate the log jam of unacted on measures in the late days of the legislative sessions, which had resulted in passage of laws that had not received proper scrutiny or due consideration and to permit local legislation to be enacted solely by those directly affected by it without interference by representatives from other sections of the State.

In deciding the question before us, there must be read and considered together Art. XI-A, the Charter of Montgomery County, and the Act (now Art. 25A of the Code) which granted express powers to chartered counties as Sec. 2 of Art. XI-A demanded (Sec. 4 of Art. XI-A forbids the legislature to enact a public local law “on any subject covered by the express powers granted” as Sec. 2 required). Section 3 of Art. XI-A provides that every charter formed under Sec. 1: “shall provide for an elective legislative body in which ²⁷⁵ shall be vested the law-making power of said City or County. * * * From and after the adoption of a charter by * * * any County of this State, as hereinbefore provided, * * * the County Council of said County, subject to the Constitution and Public General Laws of this State, shall have full power to enact local laws of said * * * County including the power to repeal or amend local laws of said * * * County enacted by the General Assembly, upon all matters covered by the express powers granted as above provided; * * * Provided, however, that the charters for the various Counties shall specify the number of days, not to exceed forty-five, which may but need not be consecutive, that the County Council of the Counties may sit in each year for the purpose of enacting legislation for such Counties, and all legislation shall be enacted at the times so designated for that purpose in the charter [Schneider said, page 327 of 191 Md.: “Those who framed the amendment were fearful of a lawmaking body in continuous session and therefore the new authority to legislate was carefully restricted”], and all laws and ordinances so enacted shall be published once a week for three successive weeks in at least one newspaper published in such Counties, so that the taxpayers and citizens may have notice thereof.” Section 5 (A) of Art. 25A (the Express Powers Act) gives the elected legislative body of a chartered county the power: “To enact local laws for such county, including the power to repeal or amend local laws thereof enacted by the General Assembly upon the matters covered by the express powers in this article granted * * Section 5 (S) authorizes the amendment of the county charter by the voters, and adds : “The foregoing or other enumeration of powers in this article shall not be held to limit the power of the county council, in addition thereto, to pass all ordinances, resolutions or bylaws, not inconsistent with the ²⁷⁶ provisions of this article or the laws of the State, as may be proper in executing and enforcing any of the powers enumerated in this section or elsewhere in this article, as well as such ordinances as may be deemed expedient in maintaining the peace, good government, health and welfare of the county. (Emphasis added.) “Provided, that the powers herein granted shall only be exercised to the extent that the same are not provided for by public general law * * The appellants find authority and basis for enacting the ordinance here involved during the executive sessions of the County Council in (a) Ch. 947 of the Laws of 1945, which survived the adoption of the Charter and now in general substance is Sec. 2-23 of the Montgomery County Code (1965), and (b) the practice since the Charter became operative in 1949 of enacting ordinances in executive session. Chapter 947 added a new section (Sec. 185A) to Art. 16 of the Code of Public Local Laws (Montgomery County) (1939 Ed.), providing: “The Board of County Commissioners of Montgomery County in its discretion shall have full powers and authority to enact ordinances for said County as it may deem necessary for the peace, good government, health, safety, or welfare of said County, and which are not inconsistent with the provisions of the Constitution or public general laws or public local laws of the State of Maryland * * *.” (Emphasis added.) The section went on to provide that “no ordinance of general application shall be enacted or adopted * * * under the powers conferred by this Act” until published in a newspaper of general circulation in the County “at least once a week for two weeks, with an opportunity for public hearing thereon * * *” (the Council eliminated this requirement when it made the substance of Ch. 947 a part of the County Code).

The Act concluded that: “the powers of ordinance, created by this Act are in addition to and not in substitution nor in derogation ²⁷⁷ of the legislative jurisdiction of the General Assembly of Maryland and that such supplemental powers of ordinance as are herein delegated to the County Commissioners of Montgomery County shall not be construed to include power to repeal or to amend as to their general purpose or intent any Act of the General Assembly by any such ordinance.” The argument on Ch. 947, now Sec. 2-23 of the County Code, comes down to the contention that only public local laws which prior to the Charter only the legislature could have passed are required to be enacted in legislative session and that anything the County Commissioners could have ordained, promulgated, ruled, regulated or adopted now may be similarly done by the Council in executive session. The argument as to contemporaneous and continued administrative practice is based on the fact that at the first legislative session of the new County Council in May 1949 there was enacted a public local law to : “Provide for the Adoption of Building, Fire, Electrical, Plumbing, Trash Removal, Billboard, Street Construction, and Other Codes, and for the Administration and Enforcement of Such Codes and of Zoning and Subdivision Regulations and Ordinances, and for the Procedure for Adoption of Certain Rules, Regulations, Standards and Ordinances.” This local law specified that the Council, from time to time, “in open Executive Session” could adopt “rules, standards, regulations, or ordinances, or amendments thereto” as authorized by “this Act.” It is stipulated that similar “enabling acts” have been enacted by various subsequent councils, and the County contends further that consistently the various councils sitting in executive sessions have ordained on various subjects, even though the action taken had not previously been authorized by a law enacted at a legislative session and was not administrative or executive in nature and character, but purely legislative. Both of appellants’ arguments collapse when subjected to the ²⁷⁸ revealing light which Art. XI-A, the Charter, and the Express Powers Act focus on them. Section 3 of Art. XI-A requires in a charter provision for “an elective legislative body in which shall be vested the lawmaking power” of the County.

The Charter must: “specify the number of days, not to exceed forty-five, which may but need not be consecutive, that the County Council * * * may sit in each year for the purpose of enacting legislation * * *, and all legislation shall be enacted at the times so designated for that purpose in the charter, and all laws and ordinances so enacted shall be published once a week for three successive weeks in at least one newspaper * * (All emphasis added.) It is to be noted that "all" legislation is to be enacted in legislative session and at the appointed time. Section 3 of Art. XI-A also provides that: “the chief executive officer, if any such charter shall provide for the election of such executive officer, or the presiding officer of said legislative body, if such charter shall not provide for the election of a chief executive officer, shall be known * * * in any County as the President of the County Council of the County, and all references in the Constitution and laws of this State * * * and to the County Commissioners of the Counties, shall be construed to refer * * * to the President and County Council herein provided for whenever such construction would be reasonable.” Article II of the Charter, “The Legislative Branch,” provides in Sec. 1, “Composition,” that “the legislative branch of the county government shall be composed of the county council in legislative session and the officers and employees thereof.” Section 3, “General legislative powers,” reads: “The county council is the elective legislative body of the county and is vested with the law-making power thereof including all law-making powers heretofore exercised by the General Assembly of Maryland but ²⁷⁹ transferred to the people of the county by virtue of the adoption of this Charter, and the legislative powers vested in the county commissioners as a district council for the Montgomery County Suburban District. P'or the enactment of legislation the county council shall sit in legislative session during May of each year.” 1 Section 6 of Art. II of the Charter gave a right of referendum, something Art. XI-A does not require in a charter. The people reserved the right to vote on public local laws on specified matters and on “(3) Any other public local law or any part of any other public local law not included under subsections (1) and (2) above.” Montgomery County's charter did not provide for an elected chief executive.

Rather, it conferred upon the County Council not only the legislative power which Art. XI-A demands but also the executive functions of government. Article III of the Charter, “The Executive Branch,” provides in Sec. 1, “Composition,” that: “The executive branch of the county government shall be composed of the county council in executive session, the county manager, the heads of the several departments of county government, the county personnel board, the office of the county attorney, and other administrative agencies of the county government.” Section 2, “General executive powers,” provides that: “The county council is the chief executive authority of the county and is vested with the executive power ²⁸⁰ thereof and constitutes the county commissioners thereof. For the exercise of such powers the county council shall sit in executive session at least once in each calendar month and at such other times as it may determine. The executive sessions of the county council shall be open or closed to the public from time to time as the county council may determine.” Section 3, “Specific executive powers,” provides that: “The county council shall have power in executive session to: (a) Exercise all powers, except powers to enact legislation, heretofore or hereafter: (1) Vested in the county council pursuant to the requirement of Article XI-A of the Maryland Constitution that all references in the Constitution and laws of the state to county commissioners shall be construed to refer to the county council whenever such