O. C. Taxpayers For Equal Rights, Inc. v. Mayor and City Council of Ocean City

• Citation: 375 A.2d 541,280 Md. 585
• Decision Date: 06 July 1977
• Docket Number: No. 111,111
• Parties: O. C. TAXPAYERS FOR EQUAL RIGHTS, INC., et al. v. MAYOR AND CITY COUNCIL OF OCEAN CITY et al.
• Court: Maryland Court of Appeals

Page 585

280 Md. 585

375 A.2d 541

O. C. TAXPAYERS FOR EQUAL RIGHTS, INC., et al. v. MAYOR AND CITY COUNCIL OF OCEAN CITY et al.

No. 111.

Court of Appeals of Maryland.

July 6, 1977.

K. King Burnett and Paul D. Wilber, Salisbury (Webb, Burnett & Simpson, Salisbury, on the brief), for appellants.

Dale R. Cathell, Ocean City, for appellees.

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

ELDRIDGE, Judge.

This case concerns the validity of charter amendments adopted by the Mayor and City Council of Ocean City, Maryland, which changed the qualifications for voters in the city elections.

When Ocean City was incorporated by Chapter 209 of the Acts of 1880, the voting franchise was extended not only to residents of the town, but also to certain non-residents owning an interest in Ocean City real estate. This franchise remained substantially unchanged through the next 95 years. Immediately prior to the adoption of the charter amendments at issue in this case, non-residents owning property with an assessed value of at least $1,000 were qualified to vote in the city elections according to Section C-403 of the Ocean City Charter. Under the same section, all adult residents, regardless of property ownership, were entitled to vote.

On January 5, 1976, the Mayor and City Council of Ocean City adopted 48 charter amendment resolutions. Two of these resolutions, 1976-3 and 1976-4, purported to change the qualifications of voters. A Charter Revision Committee originally proposed Resolution 1976-3 to the City Council as a sole and separate amendment to the charter. The effect of 1976-3 was to limit the right to vote to persons who are domiciliaries for the 4 months preceding an election. Non-resident property owners, therefore, could no longer remain on the voter rolls. In addition, 1976-3 stated that non-resident city councilmen could serve out their terms of office even if they were no longer registered voters. Resolution 1976-4, on the other hand, was added by the City Council to the Charter Revision Committee's proposal. This resolution was a so-called "grandfather clause" stating that those non-resident property owners already on the voter rolls as of the date the resolutions were adopted would not be removed from the rolls, solely because of the provisions of 1976-3.

On January 30, 1976, the plaintiffs, non-residents each of whom owned more than $1,000 worth of property in Ocean City, and approximately 210 other non-residents, registered to vote. Soon after, on February 25, 1976, the voting rolls were examined by the Board of Election Supervisors and all those who had become unqualified to vote by change of residence, failure to vote in two consecutive elections, death, failure to meet the new residency requirements, etc. were stricken from the rolls. This affected the 220 non-residents who registered on January 30, 1976, along with some 1,500 others. The plaintiffs requested that the Mayor and City Council reinstate them to the voter rolls, but this request was refused.

Thereupon, on July 23, 1976, the plaintiffs commenced the present action by filing a petition for declaratory relief in the Circuit Court for Worcester County. Plaintiffs there argued, inter alia, that resolutions 1976-3 and 1976-4 were void: (1) because their titles did not conform to the requirements of Maryland Code (1957, 1973 Repl.Vol.), Art. 23A, § 13(c), which requires that every charter amendment adopted by a municipal corporation be limited to a single subject, and further requires that this subject be described in the amendment's title; and (2) because the resolutions created a classification between non-resident property owners registered before January 5, 1976, and all other non-resident property owners which was a denial of equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution.

Immediately after this suit was filed, the Mayor and City Council of Ocean City adopted Charter Resolutions 1976-49, 1976-50 and 1976-51. These resolutions recited the improper titling issue raised by the plaintiffs in their petition for declaratory relief. While the substance of these new resolutions was identical to 1976-3 and 1976-4, they contained new and more descriptive titles. Plaintiffs then filed a motion in the circuit court to amend their petition in order to bring 1976-49, 1976-50 and 1976-51 into issue. This motion was denied, and, after a hearing on the merits, the circuit court held: (1) that the titles and subject matter of 1976-3 and 1976-4 conformed to the requirements of Art 23A, § 13(c); (2) that 1976-3, limiting the right to vote to domiciliaries, was valid and constitutional; (3) that the classification between non-resident property owners created by 1976-4 was an arbitrary one and thus violated the Equal Protection Clause of the Fourteenth Amendment; and (4) that 1976-3 and 1976-4 were severable, so that the invalidity of one did not affect the validity of the other. The effect of the circuit court's decision, by sustaining 1976-3 while holding 1976-4 invalid, was to deny the franchise to all non-resident property owners.

Plaintiffs took an appeal to the Court of Special Appeals and, prior to a hearing in that court, petitioned this Court for a writ of certiorari, which we granted. Plaintiffs renew their argument that 1976-3 and 1976-4 are invalid due to improper titling, and argue that 1976-3 and 1976-4 are not severable, so that a holding that 1976-4 is unconstitutional requires that 1976-3 also be declared void.

(1)

Code (1957, 1973 Repl.Vol.), Art. 23A, § 13(c), requires that "(i)n conformity with a requirement imposed upon the General Assembly . . . every charter amendment adopted by a municipal corporation shall embrace but one subject, and that shall be described in its title." (Emphasis supplied.) The title of charter amendment 1976-3 reads "Resolution of the Mayor and City Council of Ocean City, Maryland, to amend the Town Charter." The title of 1976-4 reads "Resolution of the Mayor and City Council of Ocean City, Maryland, Subsequent to Resolution (Charter) No. 1976-3."

Defendants, arguing that the titles of 1976-3 and 1976-4 adequately describe their subject matter, rely on cases such as Annapolis v. State, 30 Md. 112 (1869), which involved an amendment by the General Assembly to the charter of Annapolis. The title of the act read "An Act to amend and alter the Charter of the city at Annapolis." This Court upheld the validity of that title, stating that the "subject matter of legislation, was the charter of a Municipal Corporation," and as such, was adequately described in the title. Annapolis v. State, supra, 30 Md. at 119. Defendants contend that, analogously, the title of resolution 1976-3 is sufficient.

Plaintiffs, on the other hand, argue that what is a sufficient title for an act of the General Assembly is not necessarily sufficient when employed in a municipal corporation's charter amendments. Art. III, § 29 of the Maryland Constitution requires that "every Law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title." (Emphasis supplied.) But Art. 23A, § 13(c), imposes a significantly narrower requirement on municipal corporations. Not all laws, nor all enactments, but rather all "charter amendment(s) shall embrace but one subject, and that shall be described in its title." (Emphasis supplied.) Plaintiffs contend that a title such as "Resolution . . . to amend the Town Charter" does not even arguably satisfy the requirement that the subject of a charter amendment be described in its title. To approve this title in a municipal charter amendment would be similar to upholding a General Assembly act which simply stated, "An Act to Amend the Laws of Maryland." This type of title, plaintiffs argue, would be clearly insufficient.

Although plaintiffs' argument seems highly persuasive, it is not necessary to decide that issue in this case. We agree with the defendants' argument that even if the titles of 1976-3 and 1976-4 were defective, this defect was cured by the subsequent enactment of 1976-49, 1976-50 and 1976-51.

While a motion by the plaintiffs to amend their petition for declaratory relief so as to include 1976-49, 1976-50 and 1976- 51 in the circuit court's proceedings was denied, both plaintiffs and defendants request that we take judicial notice of these later resolutions in our disposition of this case. In the past, this Court has often pointed out the general though not inflexible rule that the courts do not take judicial notice of the enactments of municipal corporations. Kramer v. Prince George's County, 248 Md. 27, 36, 234 A.2d 589 (1967); Walker v. D'Alesandro, 212 Md. 163, 170-171, 129 A.2d 148 (1957), and cases there cited. In 1968, however, the General Assembly enacted what is now Code (1974) § 10-203(a) of the Courts and Judicial Proceedings Article, providing that "(t)he public laws, ordinances, regulations and resolutions approved and enacted by a . . . municipal corporation of the state . . . shall be judicially noticed." Therefore, we take judicial notice of resolutions 1976-49, 1976-50 and 1976-51 (the July resolutions), having content substantially identical to resolutions 1976-3 and 1976-4 (the January resolutions).

The titles of the July resolutions are descriptive of their subject matter ¹ and have not been challenged by the plaintiffs. It is well established in Maryland that courts will not ordinarily consider an alleged defect in the title of an earlier enactment when a subsequent valid statute on the same subject cures the alleged title defect in the earlier act. Grillo v. State, 209 Md. 154, 120 A.2d 384 (1954); Jones v. State, 207 Md. 481, 115 A.2d 273 (1955); Mt. Vernon Co. v. Frankfort Co., 111 Md. 561, 76 A. 105 (1909); Everstine, Titles of Legislative Acts, 9 Md.L.Rev. 197, 239-240 (1948).

Plaintiffs, however, argue that the July...