374 A.2d 1135 (Md. 1977), 35, McCarthy v. Board of Educ. of Anne Arundel County

Docket Nº:35.
Citation:374 A.2d 1135, 280 Md. 634
Opinion Judge:[10] Smith
Party Name:Thomas McCARTHY v. BOARD OF EDUCATION OF ANNE ARUNDEL COUNTY et al.
Attorney:[7] Theodore G. Bloom with whom were Goodman & Bloom, P.A. on the brief, for appellant.
Case Date:July 07, 1977
Court:Court of Appeals of Maryland
 
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Page 1135

374 A.2d 1135 (Md. 1977)

280 Md. 634

Thomas McCARTHY

v.

BOARD OF EDUCATION OF ANNE ARUNDEL COUNTY et al.

No. 35.

Court of Appeals of Maryland.

July 7, 1977

       [280 Md. 635] Robert C. Wilcox, Asst. County Sol., Annapolis (Michael R. Roblyer, Co. Solicitor, Annapolis, on the brief), for Anne Arundel County.

Page 1136

Thomas J. Wohlgemuth, Annapolis, for Board of Education of Anne Arundel County, for appellees.

       Theodore G. Bloom, Annapolis (Goodman & Bloom, P.A., Annapolis, on the brief), for appellant.

       Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

       SMITH, Judge.

       We shall here sustain the holding of a trial judge (Childs, J.) that Anne Arundel County Code (1967) §§ 7-300 and 301 relative to transportation of children attending schools which "do not receive state aid" were invalid.

       The sections in question provide:

"Sec. 7-300. Use of buses by children not attending public schools.

"Whenever there are children attending schools, which schools do not receive state aid, except such schools as are operated for profit in whole or in part, the board of education of the county shall make rules and contracts for the transportation of such children to and from such schools; provided, however, that the transportation benefits accorded children under this section shall be governed by the same rules and standards applicable to and shall be neither more nor less than the transportation benefits accorded public school students by the board of education of the county."

"Sec. 7-301. Tax to be levied for bus operation; charges for use.

"The county council shall levy and appropriate annually sufficient funds to defray any cost [280 Md. 636] incurred by it in carrying into effect the provisions of the preceding section and for the establishment of new bus routes for transporting children to and from the public schools of the county, and schools other than public schools which schools do not receive state aid except such schools as are operated for profit in whole or in part, whenever such routes are necessary to effectuate the provisions of the preceding section. The transportation of children to and from schools other than public schools which schools do not receive state aid except such schools as are operated for profit in whole or in part shall be upon such reasonable terms and conditions as the board of education may from time to time determine, but in no event shall the amount charged children attending such schools for utilizing such buses or other conveyance be greater or less than the amount charged children attending the public schools for the same kind of transportation."

       Chapter 75 of the Acts of the Extraordinary Session of 1947 provided for transportation of children who attend parochial schools in Anne Arundel County "not receiv(ing) State aid" residing along highways on which regular bus service was provided by the Board of Education for transportation of children to and from public schools. The county commissioners were authorized to levy and appropriate sufficient funds to defray the cost of this service. These provisions became Anne Arundel County Code (1957), Art. 2 of the Code of Public Local Laws of Maryland, §§ 18-1 and 2. The General Assembly enacted Chapter 854 of the Acts of 1963 materially amending those sections in basically the language of §§ 7-300 and 301. This act was petitioned to referendum and defeated by the voters of Anne Arundel County at the 1964 general election. Another similar statute was enacted by the General Assembly as Chapter 732 of the Acts of 1967. It was to take effect July 1, 1969, if approved by a referendum at the general election of 1968. It, too, was defeated by the people. [280 Md. 637]

       Anne Arundel County Charter § 1007 states that "the County Council shall provide for a compilation and codification of all public local laws of the County, all ordinances of the County Council and all resolutions heretofore adopted by the County Commissioners having the force and effect of law . . . ." Pursuant to that authority the County Council in 1967 adopted Bill No. 18-67, an ordinance "to adopt a revision and codification of the laws of

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Anne Arundel County" and repealing laws not included within that code with certain exceptions. The code was appended to the ordinance. Sections 7-300 and 301 were in that code and give their source line as Chapter 854 of the Acts of 1963.

       Appellant, Thomas McCarthy, "on his own behalf and on behalf of all others similarly situated," brought a declaratory judgment action. He said that he had four children attending a "non-public, parochial school, (which) does not receive State aid, and is not operated for profit in whole or in part." He sought a declaratory judgment as to his rights under §§ 7-300 and 301 and "injunctive relief to compel the defendants to carry out and perform their duties in respect to said laws and damages for their past failure to do so." Named as parties defendant were the Board of Education of Anne Arundel County (the Board of Education), the members of the County Council of Anne Arundel County "in their official capacity," the County Executive of Anne Arundel County "in his official capacity," and Anne Arundel County (the County).

       The trial judge found that the provisions in question "were not legally adopted prior to the enactment of 18-67 (and thus) the County Council was without the power or authority to enact new legislation through codification," pointing out that "(i)f this were not so, the process of codification would develop into a nightmarish process, involving the necessity for all manner of security provisions lest one or more special interest groups might circuitously succeed in surreptitiously inserting within the codification material legislation which might never survive the strictures of Section 307 (of the Anne Arundel County Charter) or the [280 Md. 638] referendum process now specifically declared to apply to home rule legislation."

       A prompt appeal was entered to the Court of Special Appeals. Because of the public importance of the question presented we granted the writ of certiorari prior to consideration of the case by that court.

       The County and the Board of Education present three different arguments to us as to why the trial judge was correct, (1) that the sections are a nullity because they were never intended to become law nor were they validly enacted into law as prescribed by the Anne Arundel County charter, (2) that the County has no authority under the express powers act to enact such legislation, and (3) the field of education has been preempted by the General Assembly, thus rendering local enactments affecting boards of education void. Obviously, if we were to agree with them on any one of these points the judgment would be affirmed. We prefer to place our decision on the doctrine of preemption rather than on one of the other two grounds. Our preference should not be interpreted, however, as an intimation that we are of the opinion that the decision of the trial judge could not be sustained on either of those other two grounds.

       If there has been but little application of the preemption doctrine in Maryland, it must be remembered that it has been only in comparatively recent years that any subdivision in Maryland, other than Baltimore City, has had general legislative power. This authority came with the adoption of Art. XI-A of the Maryland Constitution by the people in 1915. See State v. Stewart, 152 Md. 419, 422, 137 A. 39 (1927), for an explanation of the reason for adopting home rule. Such legislative power does not reside in Baltimore City or a county unless it adopts home rule. Baltimore City adopted a charter soon after the adoption of the home rule amendment but it was not until 1948 that home rule came to the first of the counties, Montgomery.

       In City of Baltimore v. Sitnick and Firey, 254 Md. 303, 255 A.2d 376 (1969), this Court, in a comprehensive opinion...

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