Can Maryland change a county's boundary line by letting all voters citywide or countywide decide, or does only the area being transferred get a vote?

Plain-English summary

Delegate Pauline Menes asked the Attorney General to review a draft bill addressing an unusual jurisdictional quirk: the City of Takoma Park straddled both Montgomery and Prince George's Counties, and the bill would let voters decide, through a referendum, whether to unify the whole city into one county or the other. The proposed procedure called for simultaneous referenda in both the Montgomery and Prince George's sections of the city. Voters in each section would first vote on whether they wanted a boundary change at all, and if both sections favored a change, they would then vote on which county should get all of Takoma Park. If the two sections disagreed on which county to join, a further referendum limited to that single question would follow the next year.

The opinion concluded the bill had two separate constitutional problems. First, Article XIII, Section 1 of the Maryland Constitution requires that when a county boundary line is changed, only the voters residing in the area actually being transferred get to vote on it, not voters in the section that would stay put or in the county as a whole. The draft bill violated this by letting the Montgomery County section vote on whether the Prince George's section moved, and vice versa, each section effectively holding a veto over the other's transfer. Second, the bill unconstitutionally delegated the General Assembly's exclusive lawmaking power to the voters themselves, because it left open both whether any boundary change would happen and, if so, how, rather than having the legislature decide those questions and merely let a referendum trigger a law the legislature had already written.

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion applied Article XIII, Section 1 of the Maryland Constitution as it stood in 1982, along with the historical record of legislative practice under that provision reaching back to 1867. Anyone researching a present-day proposal to alter a Maryland county boundary line, including any multi-jurisdictional situation like Takoma Park's, should verify the current text of Article XIII and any more recent case law or opinions construing it, rather than relying solely on this 1982 analysis.

Common questions

Why couldn't Maryland just let all Takoma Park voters, or all the affected counties' voters, decide together?
The opinion read Article XIII, Section 1 as a limitation on the General Assembly's power, not merely a floor. It concluded the referendum requirement means only the voters in the specific district being transferred from one county to another can vote on that transfer, drawing on the constitutional convention debates of 1864 and a consistent line of Maryland legislative practice going back to an 1872 act creating Garrett County.

Does it matter that the draft bill tried to hold two separate, simultaneous referenda instead of one citywide vote?
No. The opinion treated a structure where the Montgomery County section's vote could block a transfer proposed for the Prince George's section (and vice versa) as constitutionally equivalent to letting outside voters veto a district's own choice, which Article XIII, Section 1 does not permit.

What is the "nondelegation" problem with letting voters decide the boundary question?
The opinion explained that Maryland courts allow the legislature to condition a completed law's effective date or applicability on a future referendum, but the legislature cannot hand voters the underlying decision of what the law should be. Because the draft bill left open both whether a boundary change would occur at all and which county would receive Takoma Park, the voters, not the General Assembly, would effectively be making the law.

Could the General Assembly still gauge citywide opinion in some way?
The opinion noted that a non-binding "straw ballot" question could be placed before all Takoma Park voters to gauge sentiment, and the General Assembly could then write legislation based on that sentiment. But any legally binding referendum on the boundary change itself would still have to be limited to the voters in the specific area being transferred.

Background and statutory framework

Delegate Menes's request arose from a practical problem: Takoma Park's municipal boundary crossed the line between Montgomery and Prince George's Counties, and a draft bill sought to resolve this by unifying the whole city into a single county through a voter referendum process. The bill would have voters in each county's section of the city first vote on whether they favored any boundary change, and second, if favorable, vote on which county Takoma Park should join; if the two sections chose different counties, an additional referendum limited to the choice-of-county question would follow.

The opinion's first section addressed whether the constitutional referendum requirement could be satisfied by anything broader than a vote limited to the specific area being transferred. Article XIII, Section 1 of the Maryland Constitution requires that county lines not be changed "without the consent of a majority of the legal voters residing within the district" affected by the change. The opinion traced this requirement back to Article X, Section 1 of the Constitution of 1864 and reviewed the 1864 constitutional convention debates, in which delegate James L. Ridgely proposed the language specifically to ensure that residents of an area being shifted into an expanding Baltimore City would have a say, over the objection of delegate Archibald Stirling, Jr., who worried the requirement was too broad. The opinion also reviewed a consistent, unbroken line of Maryland legislative practice, from an 1872 act creating Garrett County through a 1982 act altering the Anne Arundel-Calvert County line, in which referenda were held only in the area being transferred, with the sole historical exception being an 1906 act that a Garrett County circuit court had held unconstitutional for allowing voters outside the disputed area to have a say, a conclusion later confirmed in a 1965 Attorney General opinion addressing the same long-running Allegany-Garrett County boundary dispute.

The opinion's second section addressed the nondelegation problem separately from the referendum-scope problem. It explained the general rule, drawn from cases like Fell v. State and Bradshaw v. Lankford, that while the General Assembly cannot delegate its exclusive lawmaking power to the voters, it can condition a public local law's operation on the outcome of a referendum, so long as the substantive law is already complete when the legislature passes it and the referendum functions only as a triggering contingency. The opinion distinguished this from what the draft bill proposed: because the bill left the voters themselves to decide both whether a boundary change should happen and which county Takoma Park should join, the voters, rather than the General Assembly, would be exercising the judgment and discretion the Constitution reserves to the legislature.

Finally, in a lengthy third section, the opinion flagged for the Delegate's benefit a range of practical implementation issues that any future boundary-change bill would need to address, drawing on precedents from Maryland and other states involving bondholders' rights, franchise contracts, apportionment of assets and liabilities between the old and new county, ownership of planned improvements, utility infrastructure, and public employees' job status, noting that the Contracts Clause of the United States Constitution has frequently been invoked in boundary-change litigation elsewhere, and that prior Maryland annexation acts had typically included express provisions addressing these issues that a future bill could use as models.

Citations

Statutes:

• Md. Const. art. XIII, §1
• Article X, §1 of the Constitution of 1864
• Chapter 618, Laws of Maryland 1947
• Chapter 550, Laws of Maryland 1976
• Chapter 681, Laws of Maryland 1977
• Chapter 212, Laws of Maryland 1872
• Chapter 98, Laws of Maryland 1888
• Chapter 841, Laws of Maryland 1982
• Chapter 730, Laws of Maryland 1906
• Chapter 708, Laws of Maryland 1955
• Chapter 453, Laws of Maryland 1874
• Chapter 546, Laws of Maryland 1894
• Chapter 82, Laws of Maryland 1918
• Chapter 264, Laws of Maryland 1918
• Chapter 283, Laws of Maryland 1918
• Chapter 296, Laws of Maryland 1918
• Chapter 667, Laws of Maryland 1959
• Article I, Section 10, Clause 1 of the United States Constitution

Cases:

• Richards Furniture Corp. v. Board of County Commissioners of Anne Arundel County, 233 Md. 249, 257 (1963)
• Regents of the University of Maryland v. Williams, 9 G. & J. 365, 410 (1838)
• Daly v. Morgan, 69 Md. 460, 472 (1888)
• Hatten v. Bond, 63 So. 612, 613 (Miss. 1917)
• Pressman v. D'Alexandra, 211 Md. 50, 59-60 (1952)
• Fell v. State, 42 Md. 71, 83 (1875)
• Bradshaw v. Lankford, 73 Md. 428, 430 (1891)
• Brawner v. Supervisors of Elections, 141 Md. 586, 600-01 (1922)
• Levering v. Supervisors of Elections, 137 Md. 281 (1920)
• Maryland Co-op Milk Producers v. Miller, 170 Md. 81 (1935)
• Hamilton v. Carroll, 82 Md. 326 (1896)
• Board of Education of City of Lincoln Park v. Board of Education of City of Detroit, 222 N.W. 763 (Mich. 1929)
• Georgia Railway and Power Co. v. Town of Decatur, 262 U.S. 432 (1923)
• Detroit United Railway v. Michigan, 242 U.S. 238 (1916)
• Peterson v. Tacoma Railway and Power Co., 111 P. 338 (Wash. 1910)
• Delta Electric Power Ass'n v. Mississippi Power and Light Co., 149 So.2d 504 (Miss. 1963)
• Washington Gas Co. of Washington v. City of Bremerton, 153 P.2d 846 (Wash. 1944)
• School Commissioners of Wicomico County v. School Commissioners of Worcester County, 35 Md. 201, 206-07 (1872)
• Laramie County v. Albany County, 92 U.S. 307 (1875)
• Kings County v. Tulare County, 51 P. 866 (Cal. 1898)
• Houston County v. Henry County, 47 So. 710 (Ala. 1908)
• Royal Oak Township v. City of Berkley, 16 N.W.2d 83 (Mich. 1944)
• In re Fremont County, 54 P. 1073, 1081 (Wyo. 1898)
• Hogan v. Bleeker, 193 N.E.2d 844 (Ill. 1963)
• Washington County v. Weed County, 20 P. 273 (Colo. 1889)
• City of Chicago v. Weber, 91 Ill. App. 561 (1901)
• Trentman v. City and County of Denver, Colo., 236 F.2d 951 (10th Cir. 1956)
• Royal Oak Township v. City of Ferndale, 15 N.W.2d 707 (Mich. 1944)
• Ford Realty & Construction Co. v. City of Cleveland, 164 N.E. 62 (Ohio 1928)
• City of Beaumont v. Calder Place Corp., 183 S.W.2d 713 (Tex. 1944)
• City of El Cajon v. Health, 196 P.2d 81 (Cal. Dist. Ct. of App. 1948)
• Bell v. City of New York, 61 N.Y.S. 709 (App. Div. 1899)
• People ex rel. Golden v. Roosevelt, 48 N.Y.S. 1043 (App. Div. 1897)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Local Government—Counties—Change in Boundary Lines—Referendum—General Assembly—Delegation of Lawmaking Function—Referendum on Boundary Change to be Limited to Affected Area—General Assembly May Not Delegate Power to Make Law

September 9, 1982

The Honorable Pauline H. Menes
Maryland House of Delegates

You have requested our opinion on proposed procedures to unify the City of Takoma Park, which now traverses both Prince George's and Montgomery Counties, into one county or the other. The draft bill that accompanied your request would establish an elaborate referendum procedure to decide the matter.

In brief, this procedure would call for simultaneous referenda in the Montgomery and Prince George's sections of the City, at which the voters would be asked (i) first, whether they favored an alteration of the county boundary and (ii) if so, whether they wanted Takoma Park to be unified in Montgomery County or Prince George's County. If either section of the City voted against a boundary change, no change would occur. If both sections voted in favor of a boundary change and both also voted for the same county, then Takoma Park would be unified in that county. However, if the two sections differed over their choice of county, additional referenda would be held the following year, at which the choice of county alone would appear on the ballot.1

For the reasons given below, it is our opinion that the draft bill is inconsistent with the boundary change requirements of Article XIII, §1 of the Maryland Constitution and, moreover, would unconstitutionally delegate to the voters a decision vested by law in the General Assembly. For your guidance, we also review below some of the legal difficulties that would likely arise in implementing a boundary alteration and how those difficulties might be anticipated and dealt with in any future bill on the subject.2

I
Referendum on Boundary Change Limited to Area to be Transferred

In our opinion, the draft bill does not conform to the constitutional requirement that county lines not be changed unless the voters in the area to be transferred from one county to another, and only those voters, consent to the change.3

A. The Referendum Requirement

1. Introduction

Article XIII §1 of the Maryland Constitution provides as follows:

"The General Assembly may provide, by Law, for organizing new Counties, locating and removing county seats, and changing county lines; but no new county shall be organized without the consent of the majority of the legal voters residing within the limits proposed to be formed into said new county; and whenever a new county shall be proposed to be formed out of portions of two or more counties, the consent of a majority of the legal voters of such part of each of said counties, respectively, shall be required; nor shall the lines of any county nor of Baltimore City be changed without the consent of a majority of the legal voters residing within the district, which under said proposed change, would form a part of a county or of Baltimore City different from that to which it belonged prior to said change; and no new county shall contain less than four hundred square miles, nor less than ten thousand inhabitants; nor shall any change be made in the limits of any county, whereby the population of said county would be reduced to less than ten thousand inhabitants, or its territory reduced to less than four hundred square miles. No county lines heretofore validly established shall be changed except in accordance with this section." (Emphasis added.)

The immediate predecessor of Article XIII, §1 was Article X, §1 of the Constitution of 1864. That section provided that the "lines of any county [may not] be changed without the consent of a majority of the legal voters residing within the limits of the lines proposed to be changed". In the Constitution of 1867, Article X became Article XIII, the first section of which prohibited an alteration of county lines "without the consent of a majority of the legal voters, residing within the district, which, under said proposed change, would form a part of a county different from that to which it belonged prior to said change".4

There are two possible interpretations of the language of Article XIII, §1. First, the constitutional requirement for a referendum of the voters in the affected portion of the City of Takoma Park, i.e., in the section to be transferred, can be regarded as prescribing merely a minimum requirement. Under this reading, the approval of the voters in the area to be transferred remains a necessary condition for a change from one county to another, but the General Assembly would also be able to condition the transfer on the additional approval of some other group of voters, e.g., those in the other section of Takoma Park, as well. The literal language of §1, taken alone, certainly does not preclude this construction.

Alternatively, this section might be considered a mandate under which the General Assembly is limited to providing for a binding referendum at which only those voters residing within the area to be ceded to a different county would be permitted to vote. We believe this latter interpretation to be correct.

2. Purpose of Requirement

The Constitution of Maryland is not a grant of power to the General Assembly but, rather, is generally regarded as a limitation or restriction on legislative powers. Richards Furniture Corp. v. Board of County Commissioners of Anne Arundel County, 233 Md. 249, 257 (1963). The General Assembly may not exercise any power that is inconsistent with the limitations or restrictions contained in that instrument. See Regents of the University of Maryland v. Williams, 9 G. & J. 365, 410 (1838).

Moreover, the very language of Article XIII, §1, requiring the assent of the voters residing in the portion of the county to be ceded or created, was itself characterized at the 1864 Constitutional Convention as a limitation on the power of the General Assembly. 3 Debates of the Constitutional Convention of the State of Maryland of 1864, 1692 (1864).5 Although the General Assembly is given the power to alter county boundaries, "[n]o county lines heretofore validly established shall be changed except in accordance with this Section". To read §1 as empowering the General Assembly to prescribe binding referenda in areas beyond the one to be transferred would be inconsistent with the limiting character of the provision.

The purpose of this referendum requirement has been described in a leading Maryland case as being "to give constitutional security to local government":

"The people were not to be denied the privilege of living under county governments of their own choice. No portion of the population of a county were to be excluded from it, and transferred to another, unless their consent was given at the polls, through a majority of the voters of the district affected. The right of local government would be violated as much by transferring them to the City of Baltimore without their consent, as it would be by annexing their territory to another county. The essential right of choice is denied in each case." Daly v. Morgan, 69 Md. 460, 472 (1888) (Bryan, J., concurring) (emphasis added).

We also note that at least one other state has specifically interpreted a similar constitutional provision as doing more than merely imposing a minimum requirement. In deciding a challenge to the legislative creation of a new county, the Supreme Court of Mississippi interpreted the following language, appearing in §260 of that state's constitution:

"No new county shall be formed unless a majority of qualified electors voting in each part of the county or counties proposed to be dismembered and embraced in the new county, shall separately vote therefor."

The Mississippi Supreme Court construed this analogue to Article XIII, §1 of the Maryland Constitution as follows:

"[T]he question of the creation of the county could properly be determined only by a majority of the qualified electors voting in that part of the county proposed to be dismembered and embraced in the new county. Certainly it does not mean, as contended by counsel for appellants, that this question of creating the new county should have been voted on by the qualified electors in the territory of the proposed new county and also by the qualified electors in the territory of the old, or remaining, county of Harrison. Such a construction would be erroneous and violent, indeed." Hatten v. Bond, 63 So. 612, 613 (Miss. 1917) (emphasis added).

We think that the language of Article XIII, §1 would be similarly construed by the courts of this State.

B. Constitutional Background

Our construction of Article XIII, §1 is supported by the debates of the Constitutional Conventions of 1851 and 1864.

1. 1851 Debates

During the 1851 Constitutional Convention, the Committee on the Legislative Department suggested the following language for inclusion in a new §23 of Article III:

"No county now established by law, shall ever be reduced by the establishment of any new county, to a population of less than ___ thousands, nor shall any new county be hereafter established with a population of less than ___ thousand." 1 Debates and Proceedings of the Maryland Reform Convention to Revise the State Constitution 124 (1851).

During subsequent debate, several amendments were offered that would have required a majority of the voters in each county involved to approve the formation of the new county. Id., Vol. 2, at 384-39. Several members of the Convention voiced their opposition. The following comments of Elias Brown of Carroll County are particularly relevant:

"There would not be a county in the State in which the majority of the voters of the county would agree to part with any portion of it. Carroll county had been erected right in the teeth of Frederick and Baltimore counties. Although the people who lived in the proposed new county would almost unanimously vote in favor of it, yet the remainder of the voters would out number them." Id. at 338 (emphasis added).

The suggested §23 and proposed amendments to it were not adopted. Id. at 339.

Although these debates focused on the creation of new counties, rather than on the alteration of boundaries between existing counties, the rationale of Mr. Brown's objection is equally applicable to the latter issue. If, for example, all Montgomery County voters, including those outside of Takoma Park, were to be given a voice in a proposal to unify Takoma Park in Prince George's County, a procedure that would be permitted under the alternate reading of Article XIII, §1 as but imposing a minimum requirement, such a vote would directly fly in the face of the objections expressed by Mr. Brown.

2. 1864 Debates

At the 1864 Constitutional Convention, the delegates considered, on third reading, a committee report involving the alteration of boundaries between existing counties. An amendment to add the language at issue here was proposed by James L. Ridgely, of Baltimore County. In his attempt to persuade the Convention to adopt the amendment, Mr. Ridgely stated:

"I will in a very few words explain the object of that amendment. The previous part of the section provides that in the event of organizing a new county, the consent of the majority of the legal voters residing within the limits about to form said new county shall be first obtained. It is also proposed that any portion of the lines of a county may be changed; but there is no provision made to consult the residents within the limits of the lines proposed to be changed. Now I understand very well the effect of this provision about changing county lines, and I have no objection in the world to it. I am free to confess that Baltimore city must necessarily, by reason of its constantly accumulating population, find its way within the limits of Baltimore county. It is the result of that sort of law which nothing in the world can prevent. In time it must find its way there; and I do not propose to throw any obstacle in the way of that end.

But I simply ask that the people, residing within the limits of the district proposed to be included within the increased limits of Baltimore city, shall be consulted for the same reason that you would consult the people residing within the limits of a new county that you propose to form. I ask that the same theory be applied to the people of Baltimore county, in relation to an increase of the limits of Baltimore city, that you would apply in relation to the organization of new counties in the State. I know that Baltimore city must increase and expand, until in process of time it shall absorb a large portion of the area of Baltimore county, and I say Godspeed to it. I do not propose to throw any obstacles whatever in its way. But I simply ask that when they apply to the legislature for an extension of its boundaries, there shall be a limitation upon the power of the legislature to grant, which shall require the assent of the people residing in the portion of the county asked to be included within the limits of Baltimore city. It will have a very serious effect upon our county treasury. The very largest proportion of the taxes received by the county is derived from the suburban population of Baltimore city; and the extension into Baltimore county of the limits of Baltimore city, of course, very essentially affects the financial ability of that county to sustain itself.

And I ask, in view of its importance to our community, that you will at least put in here a provision that the people shall be consulted and their consent obtained before any such extensions of boundary shall be granted to Baltimore city." 3 Debates of the Constitutional Convention of the State of Maryland of 1864, 1692 (emphasis added).

Archibald Stirling, Jr., of Baltimore City, objected to the amendment, saying:

"So far as this matter applies to Baltimore City, I certainly have no desire that anything should be done in respect to extending its limits, which would be unacceptable to the people interested in the matter; anything which would be unjust to Baltimore county. So far as I have any personal interest in the matter, it is rather against any increase of the city limits, than otherwise.

But this proposition affects all the counties of the State; it seems to me it is too broad. It says the legislature shall not change the lines of any county, except upon the consent of those who reside within the lines proposed to be changed. Now it may be necessary to change a county line for a few yards, or a few hundred yards. There might be but one or two people residing within the limits of the proposed change. One man might hold the whole of the land within those limits, and thus you would give to him the absolute control over the matter.

This proposition practically puts it into the power of two or three landholders to decide the whole question of legislative policy in regard to this matter. I do not believe the legislature will do anything which will not be acceptable to the people. I know the people of the city of Baltimore will ask nothing against the interests of Baltimore county." Id. at 1692-93.

Mr. Ridgely responded:

"I do not place it upon that theory at all. I do not understand how the people of Baltimore county get any protection from the city of Baltimore. I do not understand that argument. This is a question of right, one which belongs to the people of the community to be consulted upon the subject. It is a question of the transfer of their relative political position; and I ask this house, upon that ground, to give them protection." Id. at 1693.

After limited discussion of a collateral issue, the amendment was adopted. Id. at 1694.

C. Legislative Implementation

It is an accepted rule that the contemporaneous construction given a constitutional provision by the General Assembly, uniformly followed over a long period of time, is a valuable tool in determining the intention of the framers. Pressman v. D'Alexandra, 211 Md. 50, 59-60 (1952).

Accordingly, we have examined several relevant enactments of the General Assembly and have found that the consistent legislative practice has followed that of the first General Assembly to apply Article XIII, §1, only five years after its adoption in 1867: referenda have been provided for only in the areas to be transferred. See, e.g., Chapter 212, Laws of Maryland 1872 (creating Garrett County); Chapter 98, Laws of Maryland 1888 (extending the limits of Baltimore City); and Chapter 841, Laws of Maryland 1982 (altering the boundary line between Anne Arundel and Calvert Counties).6

D. Prior Legal Construction

In 50 Opinions of the Attorney General 111 (1965), this Office discussed the provisions of Article XIII, §1 in conjunction with legislation designed to end a long-standing dispute over the correct boundary between Allegany and Garrett Counties. In that Opinion, Attorney General Finan detailed the history of the dispute, which included several legislative attempts by the General Assembly to resolve the controversy, as well as litigation in the Circuit Court for Garrett County over the constitutionality of one such attempt: a referendum procedure enacted by Chapter 730, Laws of Maryland 1906.

As described by the Opinion:

"Although it had twice failed to resolve this dispute, the General Assembly tried again, by enacting Chapter 730 of the Laws of 1906, a piece of legislation optimistically entitled an act 'to provide for the definite and final establishment of the boundary line between Allegany and Garrett Counties'." Id. at 123.

Such an enactment was thought necessary because two different boundary lines had been drawn (the "Chisholm Line" of 1872 and the "Bauer Line" of 1898), leaving uncertain the status of the intervening land. Chapter 730 provided for a referendum of "all the qualified voters of the State of Maryland, residing Westward of" the easternmost of the two lines (the Bauer Line) to decide whether the disputed area should belong to Garrett County or Allegany County. The Act thus authorized a referendum of both the voters residing within the disputed area and the voters residing in undisputed areas of Garrett County. The question on the ballot was "For Garrett County" and "Against Garrett County".

In County Commissioners of Allegany County v. Board of Supervisors of Elections of Garrett County, Equity No. 1424 (1906), quoted at length in Attorney General Finan's Opinion, the Circuit Court for Garrett County found Chapter 730 to be defective. If, as the Circuit Court assumed, the sparsely-populated disputed area was then legally a part of Allegany County, and if the majority of those authorized by Chapter 730 to vote on the question ultimately voted "For Garrett County", then, in effect, the voters of Garrett County, those residing outside of the disputed area, would have been able to take territory away from Allegany County, even over the objections of those voters residing in the disputed area. The Circuit Court held that "'[s]uch legislation would not only be unconstitutional, but if it would be upheld, would be most disastrous'". 50 Opinions of the Attorney General at 124-25. According to the Circuit Court, the Act was defective because, among other reasons, it did not "'leave it to those within the district affected [the disputed area between the Chisholm and Bauer Lines] to determine'" whether the area was to be annexed to Garrett County. Id. at 125.7

The legislation specifically at issue in the 1965 Opinion of the Attorney General was yet a later attempt by the General Assembly to lay to rest the controversy over the boundary between Allegany and Garrett Counties: Chapter 708, Laws of Maryland 1955. Chapter 708 again purported to establish the Bauer Line as the boundary between the counties. However, because Chapter 708 "did not provide for a plebiscite at which those residing between the Chisholm and Bauer Lines could express their preference", the Opinion concluded that the Act was invalid under Article XIII, §1 of the Constitution. Id. at 132-34.

E. Summary

From this history, we find that all those before us who have been asked to implement, construe, and apply the provisions of Article XIII, §1 have uniformly shared the same view: this provision does not permit a referendum in which persons other than those residing in the affected area are permitted to have a say in, let alone a veto over, the proposed change.

In summary, then, it is our opinion that Article XIII, §1 of the Maryland Constitution contemplates that the required referendum be held only in the area encompassed by the boundary line alteration, and in no other. For this reason, the draft bill, which would permit those outside the affected area to vote against and effectively prevent a transfer desired by a majority of those in the affected area, would be unconstitutional.

II
Improper Delegation

It is firmly established that the General Assembly has the exclusive power to make laws in the State. That is, the power to legislate may not be delegated by the General Assembly to the people. Fell v. State, 42 Md. 71, 83 (1875); Bradshaw v. Lankford, 73 Md. 428, 430 (1891). This doctrine, as stated in the Bradshaw case, is based on the following grounds:

"Now it can hardly be necessary to say that, by the Constitution of this State, the power to enact laws belongs to the General Assembly, composed of the Senate and the House of Delegates; and this being so, it is a well-settled principle of constitutional law, that the power thus delegated cannot be redelegated to the people themselves. Our government is a representative government, and to the members of the General Assembly the people have confided the power to pass such laws as they, in the exercise of their judgment, may deem best for the public interest; and they have no power to substitute the judgment of others in matters of legislation for the judgment of those to whom this sovereign trust has been committed." 73 Md. at 430.8

Although a legislature cannot delegate its power to make laws, it may condition the operation of a law on the happening of a certain contingency or future event. 2 Sutherland, Statutory Construction §33.07 (C. Sands 4th ed. 1973). The rule is stated in 16 C.J.S. Constitutional Law §141 (1956):

"It is the general rule that where an act is clothed with all the forms of law and is complete in and of itself, it is fairly within the scope of the legislative power to prescribe that it shall become operative only on the happening of some specified contingency, contingencies, or succession of contingencies. Such a statute lies dormant until called into active force by the existence of the conditions on which it is intended to operate."

In Maryland, it is clear that the General Assembly may condition the operation of a public local law, although not a public general law, on a vote of the people in the locality affected. Brawner v. Supervisors of Elections, 141 Md. 586 (1922); Levering v. Supervisors of Elections, 137 Md. 281 (1920); Bradshaw v. Lankford, 73 Md. 428 (1891); Fell v. State, 42 Md. 71 (1875). However, the act submitted to the voters must be complete in itself and have been made law by the General Assembly; only the effect and operation of the law may be made dependent on the referendum contingency. Maryland Co-op Milk Producers v. Miller, 170 Md. 81 (1935); Brawner v. Supervisors of Elections, 141 Md. at 602; Fell v. State, 42 Md. at 85.

In Fell v. State, 42 Md. 71 (1875), the Court of Appeals upheld the provisions of Chapter 453, Laws of Maryland 1874. Section 1 of that Act called for a referendum at which the voters were to cast ballots "for the sale of spirituous or fermented liquors" or "against the sale of spirituous or fermented liquors". Section 2 provided that, if the majority voted against the sale of liquors, "then it shall not be lawful for any person, or persons, or body corporate to sell spirituous or fermented liquors" in the district. Section 3 stated the penalty for a violation, and Section 4 stipulated that the Act was to take effect immediately after the referendum. In construing the law, the Court queried:

"Now what has been delegated to the voters by this act of Assembly? Certainly not the power to make the law, or to repeal existing laws. They are called on by the first section simply to express, by their ballots, their opinion or sentiment as to the subject-matter to which the law relates. They declare no consequences, prescribe no penalties and exercise no legislative functions. The consequences are declared in the law, and are exclusively the result of the legislative will. The Act of Assembly is 'a perfect and complete law as it left the halls of legislation and was approved by the Governor;' but by its terms, it was made to go into operation in any district, upon the contingency of a majority of the legal voters within the district, being ascertained to be in favor of the prohibition maintained in the second section." Id. (Emphasis added.)

Thus, the critical distinction is between the delegation of power to make law, which necessarily involves discretion and judgment as to what the law should be, and a statutory provision that has become law but that depends on a contingency for its execution. The former is prohibited; the latter is not.

In Hamilton v. Carroll, 82 Md. 326 (1896), at issue was Chapter 546, Laws of Maryland 1894, which provided "for the removal of the county seat of Charles County from Port Tobacco to La Plata or Chapel Point, if the legal and qualified voters of said county shall so determine". By terms of the Act, the question submitted to the voters was whether the county seat should be located at La Plata or Chapel Point, the direct question of whether the county seat should be removed from Port Tobacco was not submitted. The appellants argued that the Act, by not first deciding whether the county seat should be removed at all, was not a perfected law, improperly conferring on the voters discretion as to what the law should be. The Court rejected this argument, holding that the Act as passed by the General Assembly, and, therefore, the question as submitted, inferentially provided for the removal of the county seat from Port Tobacco.

Unlike the law at issue in Hamilton, however, the draft bill involving the unification of Takoma Park leaves to the discretion of the voters of Takoma Park the issues both of whether the boundary line between Prince George's and Montgomery Counties is to be altered at all, and, if so, how it is to be changed. Accordingly, it is the vote that will make or alter the law, rather than simply give effect (or not) to the prescriptions of the law. The draft bill, therefore, is not complete, because the General Assembly will not have exercised its discretion and judgment about the expediency of the change in the boundary between the two counties.

For these reasons, it is our opinion that the draft bill, were it to be enacted, would be an unconstitutional delegation of legislative authority to the voters of Takoma Park.

III
Implementation Issues

Finally, we suggest that any bill on this subject take account of the legal complexities of implementing a boundary line change between two counties.

A. Legislative Precedent

First, we note that prior acts of the General Assembly involving such changes have themselves incorporated various express implementation provisions. These acts should be considered for guidance on the subject. See, e.g., the following:

Chapter 212, Laws of Maryland 1872 (officers to hold over; rights and privileges of the inhabitants of the county created; claim and interest in county buildings and other public property; liability for existing debts and obligations; payment of county taxes);

Chapter 98, Laws of Maryland 1888 (applicability of alcoholic beverage, building code, and other public local laws after annexation; ownership and valuation of roads, fire and school property, water and sewer pipes; election precincts; congressional and legislative districts; rate and collection of taxation; school teachers to retain positions);

Chapter 82, Laws of Maryland 1918 (applicability of the public local laws after annexation, including alcoholic beverage laws; voter registration; legislative and congressional districts; taxation; payment for or maintenance of police force, fire department, public highways, public schools, and other governmental functions and property transferred; taxing districts and tax assessments; school teachers; capital improvements; water and sewerage disposal contracts; criminal and civil jurisdiction; officers to hold over);9

Chapter 264, Laws of Maryland 1918, supplementing Chapter 82, Laws of Maryland 1918 (regulating and licensing of horse racing);

Chapter 283, Laws of Maryland 1918, supplementing Chapter 82, Laws of Maryland 1918 (responsibility for bonded indebtedness);

Chapter 296, Laws of Maryland 1918, supplementing Chapter 82, Laws of Maryland 1918 (providing for membership in Teachers' Retirement Fund);

Chapter 667, Laws of Maryland 1959 (real and personal property taxation).

B. Judicial Precedent

We also note for your consideration that several of these and related issues have been litigated in other jurisdictions.

The most common constitutional objection occasioned by laws authorizing the detachment or the annexation of territory is the claimed impairment of contractual obligations, in violation of Article I, Section 10, Clause 1 of the United States Constitution. Although most of the cases involve the enlargement or contraction of municipal boundaries, they are instructive on possible issues that might be addressed in legislation proposing to alter the boundary between Montgomery and Prince George's Counties.

1. Bondholders' Rights

Protection of bondholders' rights is one of the clearest areas of potential contractual impairment. The security underlying the purchase of municipal bonds is the right to enforce collection by a tax on the property of the territory as it existed at the time the bonds were issued. Statutes diminishing the taxing power of the reduced unit of government, thereby materially impairing its ability to meet its pledge obligations, have been declared unconstitutional. See, e.g., Board of Education of City of Lincoln Park v. Board of Education of City of Detroit, 222 N.W. 763 (Mich. 1929). Accordingly, the General Assembly might be advised to incorporate a safeguard provision governing such debts.

2. Franchises

The status of franchise contracts granted by the territorially diminished or expanded unit of local government is also problematic. Courts have held that, when a franchise requires a third party to perform services within a designated area (e.g., garbage collection, water and sewer services, public utilities, transportation), subsequent annexation may render the obligation burdensome, a statutory impairment of contractual rights. Georgia Railway and Power Co. v. Town of Decatur, 262 U.S. 432 (1923); Detroit United Railway v. Michigan, 242 U.S. 238 (1916). But see Peterson v. Tacoma Railway and Power Co., 111 P. 338 (Wash. 1910) (contract held to have contemplated expanded municipal boundaries).

In Delta Electric Power Ass'n v. Mississippi Power and Light Co., 149 So.2d 504 (Miss. 1963), appeal dismissed, 375 U.S. 77 (1963), a refusal to extend a corporate franchise and street lighting contract to an annexed area was based in part on the theory that the municipality, as a creature of the state exercising only delegated powers, had no inherent power to authorize the expansion of a franchise to territory over which the city had no jurisdiction at the time the franchise contract was signed. Other cases indicate that franchises held by obligors of the diminished county unit are automatically terminated. See, e.g., Washington Gas Co. of Washington v. City of Bremerton, 153 P.2d 846 (Wash. 1944).

3. Liabilities and Assets

Unlike several other state constitutions, the Maryland Constitution contains no express provision for apportionment of existing liabilities and assets when one county acquires additional territory from another. In the absence of legislative intent to the contrary:

"Upon general principles of law, as well as upon the reason of the thing, if a part of the territory and inhabitants of a county or town are separated from it, by annexation to another, or by the creation of a new county, as in the present instance, the remaining part of the county, or town, retains all its property, powers, rights and privileges, and remains subject to all its obligations and duties; unless some express provision be made by the act authorizing the separation. This is a well established principle." School Commissioners of Wicomico County v. School Commissioners of Worcester County, 35 Md. 201, 206-07 (1872).10

This result follows from the theory that title to and ownership of all assets are vested in a county as a corporate entity, which remains intact despite the severance of a portion of its territory. Laramie County v. Albany County, 92 U.S. 307 (1875). Thus, if a legislature fails to exercise its authority to divest title by apportioning property and specified indebtedness, annexation will not automatically result in a transfer of assets or liabilities. School Commissioners of Wicomico County v. School Commissioners of Worcester County, 35 Md. 201, 206-07 (1872); Kings County v. Tulare County, 51 P. 866 (Cal. 1898).

However, debts contracted and claims reduced to judgment before the separation remain binding on the detached property. Houston County v. Henry County, 47 So. 710 (Ala. 1908); Royal Oak Township v. City of Berkley, 16 N.W.2d 83 (Mich. 1944); In re Fremont County, 54 P. 1073, 1081 (Wyo. 1898). Similarly, liens for special assessments are considered vested property rights, subject to protection by state and federal constitutional provisions that prohibit the impairment of contractual obligations and the taking of property without due process. Hogan v. Bleeker, 193 N.E.2d 844 (Ill. 1963).

4. Planned Improvements

Another related issue is whether the annexing area has the authority to abandon improvements contemplated by the diminished unit. In City of Chicago v. Weber, 91 Ill. App. 561 (1901), the court dismissed a challenge to the annexing city's abandonment of a planned improvement project. The court found that the annexing municipality inherited the exclusive prerogative to continue or terminate construction plans in the new area. If appropriate, the General Assembly might consider specific provisions on the authority of the annexing jurisdiction to object to planned improvements.

5. Utilities

Although it may be of less concern in the particular boundary change contemplated here, another recurring problem in instances of municipal annexation is the disputed ownership and control of sewer lines and water mains. The litigants are usually the municipal system and a real estate developer in the annexed territory. On a case-by-case basis, the courts have generally upheld the right and duty of a city that has annexed territory to protect the public welfare and safety of the inhabitants of the annexed area and, in so doing, to take control of the water mains and sanitation systems laid in the streets of the newly-acquired territory at the expense of the original property owners. Trentman v. City and County of Denver, Colo., 236 F.2d 951 (10th Cir. 1956); Royal Oak Township v. City of Ferndale, 15 N.W.2d 707 (Mich. 1944); Ford Realty & Construction Co. v. City of Cleveland, 164 N.E. 62 (Ohio 1928); City of Beaumont v. Calder Place Corp., 183 S.W.2d 713 (Tex. 1944). But see City of El Cajon v. Health, 196 P.2d 81 (Cal. Dist. Ct. of App. 1948) (city may not deprive certain users of their connections to a sewer system acquired by acquisition).

6. Public Employees

In New York, certain public servants who serviced areas subsequently annexed by New York City apparently enjoyed the benefit of tenured contracts. Bell v. City of New York, 61 N.Y.S. 709 (App. Div. 1899). Unlike a "public officer", who is "invested with some portion of the sovereign functions of government" [61 N.Y.S. at 711], a school district librarian was held to be a contractual employee of the annexed municipality; consequently, the annexing City of New York was found to assume the burden of the contract, thereby becoming liable for the librarian's salary. Cf. People ex rel. Golden v. Roosevelt, 48 N.Y.S. 1043 (App. Div. 1897) (terms of annexation statute did not vest town policeman with position on city force). Here also, specific consideration by the General Assembly of the status of employment contracts may alleviate future problems.

C. Summary

The possibilities for litigation in the area of municipal/county annexation are virtually inexhaustible, especially in the face of legislative silence. For example, who becomes responsible for uncollected tax assessments? What of anticipated State grants allocated on the basis of previous territorial distribution? Who enforces subsequent building code violations? Is any provision to be made for inhabitants of water, sewer, or fire protection districts who have paid for coverage, but who now may be serviceless due to the proposed annexation?

In this regard, we hope that the preceding discussion will assist you in fashioning an appropriate bill that would permit, with as little legal uncertainty as possible, implementation of any future proposal to unify the City of Takoma Park.

IV
Conclusion

In summary, we believe Article XIII, §1 of the Maryland Constitution contemplates that, in a proposed change of county boundary lines, the controlling referendum is to be held only in the area of a county that is to be ceded to another county. Moreover, the Constitution requires that the General Assembly, and not the voters, initially decide which way the boundary is to be changed.

We do not intend to suggest, however, that the General Assembly is precluded from taking other action to assess voter sentiment throughout the whole of Takoma Park. For example, it could first direct placement on the ballot of a question or questions that would elicit the opinion of voters city wide, although without binding effect (i.e., a "straw ballot"). See 58 Opinions of the Attorney General 282 (1973). The General Assembly could then enact a bill designed to implement the indicated desires of those voters, even though, under Article XIII, §1, it would be required to submit the question for a binding referendum only in the area to be transferred.

Stephen H. Sachs, Attorney General
Linda H. Lamone, Assistant Attorney General
Avery Aisenstark
Chief Counsel,
Opinions and Advice

1 The draft bill is not clear whether, in these later referenda, a majority of each section of the City would have to approve the same county before unification could occur or whether an overall citywide majority would suffice.

2 In the 1982 Regular Session of the General Assembly, a somewhat simpler bill was introduced that would have transferred the Prince George's section of Takoma Park to Montgomery County, subject to the approval of the voters in that section of the City. House Bill 1391. Although this bill did not suffer from either of the two constitutional infirmities noted here, it did fail to address expressly the potential implementation difficulties reviewed below. House Bill 1391 did not pass.

3 A Letter of Advice from Linda H. Lamone, Assistant Attorney General, to Delegate Timothy F. Maloney (March 31, 1982), concerning House Bill 1391 of the 1982 Regular Session, concluded that Article XIII, §1 would preclude the holding of one citywide referendum to approve the consolidation of Takoma Park. As discussed below, we agree with that conclusion.

4 Since 1867, Article XIII, §1 has been amended three times. Chapter 618, Laws of Maryland 1947, ratified on November 2, 1948; Chapter 550, Laws of Maryland 1976, ratified November 2, 1976; Chapter 681, Laws of Maryland 1977, ratified November 7, 1978. These amendments, however, are not relevant to the issues discussed in this Opinion.

5 A more detailed discussion of the purposes of the 1864 provision, as evidenced by these debates, appears below in Part I B of this Opinion.

6 The sole exception to this consistent practice appears to have been Chapter 730, Laws of Maryland 1906, providing for the "final establishment" of the boundary line between Allegany and Garrett Counties. As discussed below in Part I D of this Opinion, however, that Act was held to be unconstitutional.

7 The Opinion indicates that the Circuit Court nonetheless declined to enjoin the referendum "upon 'the general principle that courts of Equity will not use that writ to prevent elections being held'". Id. at 127.

The Opinion then parenthetically noted that a majority of referendum votes were cast for Garrett County. However, we now find that this in fact might not have been the case. In 1945, the General Assembly passed Senate Bill 564, which would have repealed the provisions of Sections 1 and 2 of Chapter 730, Laws of Maryland 1906, as codified in §§37 and 38 of Article I of the Code of Public Local Laws of Maryland (1930 Ed.). Senate Bill 564 was vetoed by Governor Herbert R. O'Conor. In his veto message, Governor O'Conor stated:

"These sections relate to an election scheduled to have been held in 1906 for the purpose of establishing the boundary line between Allegany and Garrett Counties. The Attorney General has advised me that, according to the records in the office of the Land Commissioner this election was never held. The Attorney General has further advised me that the repeal of these sections might cause serious difficulties with respect to the existing boundary line between the two counties, and since the law as it now stands does no harm, its repeal might give rise to serious controversies. I believe that this matter should receive serious study and be made the subject of legislation at some future session of the General Assembly." Laws of Maryland 1945, p. 1973 (emphasis added).

8 In Brawner v. Supervisors of Elections, 141 Md. 586, 600-01 (1922), the Court of Appeals cited Article III, §1 and §§27 through 30, and Article II, §17 as constitutional provisions conferring on the General Assembly the exclusive power of making laws in the State.

9 Concerning the provision in Chapter 82 that allowed officers residing in the territory to be annexed to hold over until the end of their present terms, this Office advised that Notaries Public did not have to be recommissioned, but would continue to "exercise their functions until the end of their terms as if the Annex Act had not been passed". Letter from Ogle Marbury, Acting Attorney General, to Emerson C. Harrington, Governor (August 26, 1918).

10 See also Washington County v. Weed County, 20 P. 273 (Colo. 1889): "[T]he old county retains all assets previously owned by it, including rights of action, funds, and other personal property; also all real estate held in proprietary right, save such, if any, as may be within the territory taken away; it likewise remains bound by its existing contracts, and is subjected to the burden of discharging all existing obligations and liabilities. The new county receives none of the assets, and assumes none of the burdens."