Pickett v. Prince George's County

• Decision Date: 28 October 1981
• Docket Number: No. 27,27
• Citation: 291 Md. 648,436 A.2d 449
• Parties: Stanley S. PICKETT et al. v. PRINCE GEORGE'S COUNTY, Maryland et al.
• Court: Maryland Court of Appeals

Page 648

291 Md. 648

436 A.2d 449

Stanley S. PICKETT et al. v. PRINCE GEORGE'S COUNTY, Maryland et al.

No. 27.

Court of Appeals of Maryland.

Oct. 28, 1981.

R. Calvert Steuart, Hyattsville, for appellants.

Valerie J. Monaghan, Associate County Atty. and Robert B. Ostrom, County Atty., Upper Marlboro (Michael O. Connaughton, Deputy County Atty. and Ralph E. Grutzmacher, Associate County Atty., Upper Marlboro, on the brief), for appellee, Prince George's County.

Ronald A. Willoner, College Park, for appellee, Board of Elections Supervisors.

David P. Bird, Cheverly, on the brief for other appellees.

Argued Before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

SMITH, Judge.

In this declaratory judgment action, three issues are presented: (1) the alleged invalidity of a petition by way of initiative for an amendment to the charter of Prince George's County; (2) the question of whether that charter amendment impaired contract rights of bondholders so as to be a violation of their rights under United States Constitution Art. 1, § 10, cl. 1; and (3) whether the Board of Election Supervisors of Prince George's County properly performed its duties upon presentation to it of the petition proposing the charter amendment. In the view we take of the first question, we have no need to address the third. We shall affirm the judgment of the Circuit Court for Prince George's County, which determined that the charter amendment had been validly adopted and that there was no impairment of contract rights.

i The case

Maryland Constitution Art. XI-A, § 5 provides that amendments to charters of home rule counties may be proposed "by a petition signed by not less than 20% of the registered voters of the ... County, provided, however, that in any case 10,000 signatures shall be sufficient to complete a petition." ¹ Prince George's County adopted home rule in 1970.

In August 1978, a group calling themselves "the Tax Reform Initiative by Marylanders" delivered a proposed amendment to the charter of that county to the County Executive of Prince George's County. This was pursuant to Prince George's County Charter § 1105 and Maryland Code (1957, 1976 Repl. Vol., 1977 Cum.Supp.) Art. 33, § 23-1. (From the name of the group came the acronym "TRIM." Hence, this has become known as the "TRIM Amendment.") The petition appeared to be signed by more than 10,000 registered voters of Prince George's County. The proposed amendment placed restrictions upon the levy of real property taxes. ² It was duly approved by the voters of Prince George's County at the general election held in 1978.

On September 4, 1979, about ten months after the election, the appellants instituted a declaratory judgment action in the Circuit Court for Prince George's County. The allegations of their petition included that they were "holders of Prince George's County General Obligation Bonds ...." They challenged the "TRIM Amendment" on two bases: (1) that it impaired their contract rights, and (2) that it was improperly adopted because it "was placed on the ballot ... in a manner not in compliance with the requirements imposed by the Constitution of Maryland, Article XI-A, Section 7 in that the petitions submitted failed to provide the ward, district and precinct of the registered voter signing the petition." No contention has been presented that any fraud or other irregularity was involved. The matter ultimately came on for hearing upon motion for summary judgment. Summary judgment was entered in favor of the County and the Board of Election Supervisors. Certain other parties were dismissed.

The appellants petitioned us for the writ of certiorari prior to hearing of the matter in the Court of Special Appeals. We granted that petition to address the important public issues here presented.

ii Validity of the petition

Constitution Art. XI-A, § 7 provides that a petition to amend the charter of a home rule county is to contain "the ward or district and precinct in which (each signer) is registered." ³ It is conceded that the petitions did not contain information as to the ward or district and precinct of the signers.

This Court has been consistent in applying a different standard for review after election from that applied before election. See, e. g., the discussion for the Court by Judge Hammond in Dutton v. Tawes, 225 Md. 484, 491-92, 171 A.2d 688, appeal dismissed and cert. denied, 368 U.S. 345, 82 S.Ct. 385, 7 L.Ed.2d 342 (1961). However, the appellants rely upon the fact that this is a constitutional provision and point to language such as that in Baltimore & D.P.R.R. v. Pumphrey, 74 Md. 86, 112, 21 A. 559 (1891), where Chief Judge Alvey said for the Court, "And to hold that the terms, as employed in the Constitution, are merely directory and not mandatory, as contended by the defendant, would not only be introducing a lax rule of construction of the Constitution, but such construction would virtually nullify and destroy a valuable safeguard intended as means of bringing to the notice and consideration of the people to be affected, contemplated burdens upon them and their property." That statement must be placed in its proper context. It may be helpful, therefore, to review not only that case but others of our cases.

In that case ("Drum Point "), the Court was concerned with whether there had been compliance with the provisions of Constitution Art. III, § 54 as it then stood. It required that before a county might assist financially in the construction of a railroad there had to be authority from the General Assembly together with certain published notice. ⁴ Immediately after that which we have quoted from Drum Point and which is cited by the appellant, the Court said:

"For if the constitutional requirement be held to be directory only, the publication might be for half the time prescribed, or it might be omitted all together, and yet the power would be effective. This was never the design of the constitutional provision; and therefore all the conditions prescribed should be strictly observed; they are all equally essential to the authority attempted to be conferred. Or, as said by the Supreme Court, in Young v. Clarendon, 132 U.S. 340, 349 (10 S.Ct. 107, 109, 33 L.Ed. 356) ((1889)), 'they are of equal importance under the law, and one cannot be dispensed with more than another. Neither is directory, but all are mandatory.' The question is not what, in the absence of a constitutional restriction, would constitute a valid legislative grant of power, but what the Constitution itself requires; and as the two months publication of the Act of 1872 was essential as one of the conditions precedent to a valid confirmatory Act, and that publication was not duly made, as required by the constitutional provision, all the constitutional requirements were not complied with, and therefore there was no legal or valid authority conferred and confirmed by the Acts of 1872 and 1874." 74 Md. at 112-13, 21 A. 559.

Dutton, 225 Md. 484, 171 A.2d 688, was a postelection challenge to a referendum relative to Ch. 269 of the Acts of 1959, an act to confirm the compact with the State of Virginia relating to the Potomac River. The employees of the Secretary of State of Maryland published the notice concerning the referred law pursuant to the provisions of an earlier act rather than as required by Ch. 739 of the Acts of 1957. The validity of the compact was challenged for that reason. The Court referred to the large number of votes cast on the proposition ("larger than that cast for and against all but two of the fifteen constitutional amendments voted on at the same time") and to the extensive preelection publicity. It said the latter included the speech by William J. McWilliams (later a member of this Court) which "discuss(ed) exhaustively all of the aspects and particulars of the proposed compact on June 18, 1959, before lawyers from all over the State assembled at Atlantic City for the meeting of the Maryland State Bar Association." In upholding the compact against the challenge, Judge Hammond said for the Court:

"In factual situations comparable to that before us, courts have supported the upholding of elections despite only partial compliance, or even non-compliance, with modal provisions as to notice or the holding of elections on various grounds. Some have found substantial compliance with statutory requirements, others have said that provisions would be construed as mandatory before election but as directory after the election had been fairly held. The latter reasoning, as we have suggested earlier, may be an imprecise, if not inaccurate, rationalization of what Judge Marbury said for the Court in Wilkinson v. McGill, supra, at page 393 of 192 Md. (387, 64 A.2d 266), that when an election has been held and it is not shown that the failure of election officials to hew strictly to the statutory line has prevented a full and fair expression of the will of the voters the Courts will not disturb the result. All of the cases turn fundamentally on whether the mistake in procedure has caused harm by misleading the electorate or by tending to prevent or frustrate an intelligent and full expression of the intent of the voters." Id. at 495, 171 A.2d 688.

In Wilkinson v. McGill, 192 Md. 387, 64 A.2d 266 (1949), an act was not to be effective until submitted to voters at a special election to be held on January 22, 1948. The challenge was based upon an alleged improper registration held on December 20, 1947, and the further fact that the original advertisement called for a polling place in one district which had been used for many years but, when it became unavailable, a bowling alley was used in its stead, with advertisement of that fact. Unfortunately, a prohibition existed against using a bowling alley as a voting place. Chief Judge Marbury said for the Court, "There have been a number of cases in this Court in which irregularities have been...