Talbott v. Town of Gaithersburg

Marbury, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Montgomery County, dated August 16, 1960, which declared void and of no effect a petition for a referendum on Ordinance No. 3-60 of the Town of Gaithersburg, which ordinance was passed for the purpose of establishing the fiscal budget for the year 1960-61, and fixing the tax rate at sixty (60) cents per one hundred dollars of the assessed valuation of real property within the Town. The Mayor and Council of Gaithersburg passed the ordinance here involved on June 9, 1960, and gave notice by publication in a newspaper having general circulation in the municipality that it would become effective on June 29, 1960, unless twenty percent or more of the persons who were qualified to vote in general or special elections of the Town should file a petition requesting the ordinance, or any part thereof, be submitted to referendum. The notice stated that any such petition must be received within twenty days following approval of the ordinance by the Mayor of Gaithersburg.

In compliance with the procedure set out in the notice, the appellant, Roy L. Talbott, who was joined by at least twenty percent of the qualified voters of the town, filed a petition on June 28, 1960, with the clerk of the town council requesting that “Ordinance passed by the Mayor and Council of the Town of Gaithersburg on June 9, 1960, concerning a tax rate of (60) cents per one hundred dollars ($100) for the year 1960-1961, be made the subject of a referendum to be submitted to a vote of the qualified voters of the Town of Gaithersburg, Maryland.” Instead of submitting the ordinance to a referendum the town filed a bill of complaint against Talbott and one other signer of the petition in the Circuit Court for Montgomery County for a declaratory decree, declaring said petition to ¹⁴⁵ be void and of no effect. The defendants named in the bill of complaint demurred and also filed an answer thereto. No testimony was taken and the cause was submitted to the Court on bill and answer. In accordance with an opinion by Judge Pugh, that Court passed its decree of August 16, 1960, declaring the petition for referendum void and of no effect.

From that decree the appellant brought this appeal. His contention is that the mayor and council do not have the unlimited power under the authority of the town charter of March 13, 1958, or any other authority, to fix a tax rate in excess of fifty (50) cents per hundred dollars on the assessed valuation of real property within the town and thereby deprive the citizens of the town of an opportunity to vote upon the matter of the amount of taxes they will have to pay without first referring the same to a referendum. In support of this contention he relies upon a provision of the 1898 charter of the Town of Gaithersburg, as amended, which required the council to levy the general taxes for the fiscal year next ensuing, “which taxes shall not exceed fifty (50) cents on each hundred dollars of assessable property * * He argues that the new charter of the town which was adopted on March 13, 1958, does not specifically repeal the section of the old charter limiting the amount of the levy and that the limitation upon the taxing power still exists. We disagree with this contention because it is clear upon examination of the resolution, which was adopted by the Mayor and Council of the Town of Gaithersburg on March 13, 1958,