Wicomico County v. Todd

• Citation: 260 A.2d 328,256 Md. 459
• Decision Date: 09 January 1970
• Docket Number: No. 260,260
• Parties: WICOMICO COUNTY, Maryland v. Robert Millard TODD et al.
• Court: Court of Appeals of Maryland

Page 459

256 Md. 459

260 A.2d 328

WICOMICO COUNTY, Maryland v. Robert Millard TODD et al.

No. 260.

Court of Appeals of Maryland.

Jan. 9, 1970.

David H. Clark, County Atty., Salisbury, and William C. Stifler, III, Baltimore (William O. Doub and Niles, Barton & Wilmer, Baltimore, on the brief), for appellant.

Patrick L. Rogan, Jr., Salisbury (Richardson, Rogan & Anderson, Salisbury, on the brief), for appellees.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, SMITH and DIGGES, JJ.

HAMMOND, Chief Judge.

This appeal exists because Wicomico County, a charter county, is having difficulty in enacting a bond bill which will satisfy bond counsel, to provide funds for its five year Capital Improvement Budget, consisting of twelve projects including an office building, schools, a mental retardation center, playgrounds and airport estimated to require, above State and Federal contributions, $3,402,018. In the February 1969 legislative session, the County Council enacted Chapter 1, Bill 1 (Bill 1), which authorized the issuance of general obligation bonds in the amount of $3,402,018. Section 309(a) of the Wicomico County Charter provides that:

'The people of Wicomico County reserve to themselves the power, by petition, to have submitted to the registered voters of the County, for approval or rejection by them by a majority vote, at the next regular or special election in Wicomico County for any state or federal office, any public local law or any part of any public local law hereafter passed, including any public local law or any part of any public local law authorizing any issue of bonds, certificates of indebtedness, notes, or other obligations of the County, or renewal thereof.'

Section 309(b) provides that:

'Any referendum petition hereunder shall be filed with the Board of Supervisors of Elections within forty-five days after the close of the Legislative Session at which the subject of the referendum was passed, and shall bear the signatures of ten per centum of the registered voters of the County.'

(Section 308(g) directs that generally laws shall take effect forty-five days after the close of the Legislative Session.) Sections 309(c), (d) and (e) provide the mechanics of the referendum process, and paragraph (d) provides that if a proper petition containing the signatures of at least 10% of the registered voters of the County is duly filed within forty-five days after the close of the legislative session at which the subject of the referendum was passed: 'said public local law shall not become effective until thirty days after its approval by a majority of the qualified voters voting thereon.'

A taxpayers' group identified as the National Taxpayer Coordinating Committee (NTCC) circulated petitions to put Bill 1 to referendum. At 9:30 a. m. on March 31, 1969, the last day of the forty-five day period following the February 1969 legislative session, the referendum petitions were filed with the Board of Election Supervisors of Wicomico County. At 4:00 p. m. that same day the County Council in executive session vetoed Bill 1 pursuant to § 404 of the Charter, reading:

'To guard against hasty legislation and afford the people of the County adequate opportunity to express their will, no bill, except emergency measures as provided in Article III, Sec. 308(g) of this Charter, shall become law until 45 days following the close of the Legislative Session. Within the 45 days aforesaid any person shall have the right to petition the County Council, or on written application to appear in person before it in Executive Session, and state his reasons why the bill should not become law. Prior to the expiration of said 45 day period, the County Council in Executive Session shall have the right, as the chief executive authority of the County, by the affirmative vote of four members, to veto a bill; and if vetoed, the bill shall not become law. If not vetoed, the bill shall become law on said 45th day next following the last day of the Legislative Session in which passed, unless the bill is subjected to a valid referendum under this Charter. In the latter event, the bill shall become law on the 30th day following approval by the voters at the election, but not otherwise. Emergency measures may be vetoed in the same manner as hereinbefore provided, except such laws shall be effective until the date of veto, and subject to referendum as provided in Article III, Sec. 309.'

The Council also issued a veto message addressed to the citizens of the County and later published, which read:

'Pursuant to Article IV, Section 404 of the Charter of Wicomico County, Maryland, we have today vetoed Chapter No. 1, Bill No. 1 of the First Legislative Session of 1969. Due to the unique nature of this act, we offer to you the citizens of Wicomico County, the following in explanation of this course of action.

'The Capital Budget for fiscal year 1970-71 was passed by this Council on January 14, 1969. The Council, after long deliberation and due public hearing and notice, deleted in excess of $850,000.00 from the budget as originally submitted for 1970-71. It was and is the considered judgment of the Council that the programs provided for in the Capital Budget are necessary for the continued progress of this County. At no time during our deliberations was there an indication that any portion of this Legislation would be brought to referendum. We cannot, now, in good conscience, allow the consequences of the delay this referendum would cause to all of the citizens of the County for the desires of a number to vote their wishes, when the major concern seems to be $49,000.00 out of a $3,400,000.00 capital program.

'We are most reluctant to veto this legislation inasmuch as we realize that a situation such as this was not the reason for the veto power being given the Council when the Charter was adopted. We are convinced, however, that the great majority of the citizens of this County do not wish to delay these projects for two years and thereby cause our children to receive inferior educational opportunity, possibly lose a much-needed mental retardation facility and further eventually require the taxpayers to fund the additional costs that a two-year delay would cause.

'By vetoing this Bill, we have provided the only opportunity to return in our June Legislative Session and provide the necessary legal machinery to reintroduce a bill to implement these much needed improvements. There is no question but what even this slight delay will mean increased costs to the citizens of this County. We feel, however, that our responsibility to the majority of the public requires that we take this action in order to minimize the cost and inconvenience to all of us in the County.'

At its June 1969 Legislative Session the County Council passed Chapter 2, Bill 2 (Bill 2), which is a twin of Bill 1. Neither the taxpayers' group nor anyone else attempted to refer any part of Bill 2. Instead, the appellees, acting either in their own right or on behalf of the taxpayers' group, chose to seek a decree which would declare:

1. The veto power in the Wicomico County Charter to be unconstitutional,

2. The veto of Bill 1 to be invalid and ineffective,

3. Bill 2 to be invalid and ineffective, and

4. Would order that Bill 1 be placed on the ballot in the next general electiion (in November 1970).

Judge Travers held the veto provisions of the Charter to be valid and that Bill 1 had been lawfully and effectively vetoed, but that the Council could not enact a bill substantially like the one that would have gone to referendum had it not been vetoed, because this would nullify the right the people reserved to themselves to vote directly on whether they do or do not want a proposed law.

We think that Judge Travers was right as to the veto power and the vetoing of Bill 1 but wrong in holding that Bill 2 was invalid and ineffective.

The argument of the appellees below-an argument they now do not seriously press-was that to allow the County Council in executive session to veto a bill it had enacted in legislative session violates Article 8 of the Declaration of Rights of the Constitution of Maryland, which commands the separation of legislative, executive and judicial powers and provides that 'no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.' The short answer is that it was reiterated in so many words in Pressman v. D'Alesandro, 193 Md. 672, 679, 69 A.2d 453, 454, that 'the constitutional requirement of separation of powers is not applicable to local government,' the question of just how much power has been granted being one of statutory construction. Judge Markell for the Court added:

'In the past municipal charters, through imitation of state and federal constitutions, often made a separation of powers similar to the constitutional separation. Such charters gave rise to questions of statutory construction similar to constitutional questions of separation of powers. City of Baltimore v. Wollman, 123 Md. 310, 316, 91 A. 339. The new Baltimore...