Is there an overall dollar cap on how much debt a Maryland county without home rule, like Somerset County, can take on, or does each borrowing project need its own separate state law?

Plain-English summary

Kirk G. Simpkins, County Attorney for Somerset County, asked the Attorney General to identify the debt limitation applicable to the county. The opinion concluded that, because Somerset County does not have home rule status, its county commissioners may only create debt when the General Assembly has expressly authorized it by statute, and neither the Maryland Constitution nor any general law imposes an overall dollar cap on the county's total debt.

Instead, the opinion explained, the General Assembly has historically enacted a series of individual statutes authorizing Somerset County to borrow for specific projects, jail construction, water and sewer assistance, an agricultural office center, and, most recently, landfill improvements, each capping the amount that could be borrowed for that particular purpose. Taken together, these individual project authorizations effectively function as the county's debt limit, since the county cannot borrow beyond what each specific statute allows, but there was no single aggregate ceiling the General Assembly had set for the county as a whole, unlike the percentage-of-assessed-value debt caps that apply to charter counties under Article 25A, §5(P)(1).

Currency note

This opinion was issued in 1995. 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 or borrowing authority mentioned here, particularly since several of the referenced Maryland Code articles have since been recodified.

Common questions

Could Somerset County borrow money for any public purpose it wanted in 1995, so long as it stayed under some overall cap?
No, according to the opinion. Because the county lacks home rule, the opinion concluded it could not create debt for a new purpose without the General Assembly first passing a specific statute authorizing that project; there was no general authorization letting the county borrow for any public purpose subject only to an overall limit.

Where did Somerset County's borrowing limit actually come from, if not a single constitutional or statutory cap?
The opinion explained that each individual authorizing statute (for example, the 1995 landfill financing law capping borrowing at $5,000,000) set its own project-specific dollar limit, and the county's practical debt limit was simply the combined total of whatever such authorizations happened to be in effect at any given time.

Did charter counties in Maryland face the same kind of debt limit as Somerset County?
No. The opinion noted, by way of contrast, that Article 25A, §5(P)(1) allows charter counties to issue bonds up to an aggregate cap tied to 15 percent of the county's assessable property base, a general percentage-based limit that non-home-rule counties like Somerset did not have; Somerset's limit instead came entirely from its collection of individual project-specific authorizing statutes.

Background and statutory framework

Article VII, §2 of the Maryland Constitution provides that the powers and duties of county commissioners "are such as now are or may be hereafter prescribed by law," a provision applicable to non-home-rule counties like Somerset. Maryland courts have long held that county commissioners possess only those powers expressly conferred by statute or reasonably implied from such statutes, construed strictly, including the power to borrow money and create indebtedness, which is "not an incident to local government" and cannot be exercised absent express or necessarily implied statutory authorization.

The opinion catalogued the General Assembly's practice of enacting individual authorizing statutes for Somerset County debt over more than two decades, including laws for water and sewer assistance (1972), capital projects (1974), jail construction (1980 and 1985), an agricultural office center (1987), and landfill improvements (1995), each specifying its own borrowing cap. It contrasted this project-by-project approach with the general aggregate debt ceiling available to charter home rule counties under Article 25A, §5(P)(1), and with two public general laws permitting limited borrowing without specified caps in narrow emergency circumstances.

Citations and references

Statutes:

• Maryland Constitution, Article VII, §2, providing that county commissioners' powers are those prescribed by law
• Maryland Constitution, Article III, §54, requiring statutory authorization for debt created for works of internal improvement
• Article 16A, §35 of the Maryland Code, permitting borrowing without a specified limit for military emergencies
• Article 24, §9-102 of the Maryland Code, permitting borrowing without a specified limit for relief of the destitute
• Article 25A, §5(P)(1) of the Maryland Code, capping charter county bond issuance at 15 percent of the county's assessable property base
• Chapter 45, Laws of Maryland 1995, authorizing landfill construction financing up to $5,000,000
• Chapter 1, Laws of Maryland 1987, authorizing financing for an agricultural office center
• Chapter 6, Laws of Maryland 1985, and Chapter 72, Laws of Maryland 1980, authorizing jail construction financing
• Chapter 278, Laws of Maryland 1974, authorizing capital projects financing
• Chapter 14, Laws of Maryland 1972, authorizing water and sewer assistance financing

Cases:

• Miller v. County Commissioners, 226 Md. 105, 172 A.2d 867 (1961); County Commissioners v. Page, 163 Md. 619, 164 A. 182 (1933); and Chaney v. County Commissioners, 119 Md. 385, 86 A. 1039 (1913), holding county commissioners possess only powers expressly conferred by statute or reasonably implied from such statutes
• Walker v. Board of County Commissioners, 208 Md. 72, 116 A.2d 393 (1955), holding these statutory powers are to be strictly construed

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/1995/80oag96.pdf

Original opinion text

96 [80 Op. Att'y

C OUNTIES ) C OMMISSIONER C OUNTIES ) B ONDS ) D EBT L IMIT
FOR S OMERSET C OUNTY

                    November 15, 1995

Kirk G. Simpkins, Esquire
County Attorney for Somerset County

  You have requested our opinion on the debt limitation

applicable to Somerset County. Our opinion is as follows: Like
other counties without home rule, Somerset County may only create
debt as expressly authorized by enactment of the General Assembly.
Therefore, although neither the Constitution nor a general law
specifies an overall debt limit, the limit on the county's authority to
create debt is found in the various authorizing statutes.

                               I

                     Creation of Debt

  In relevant part, the Maryland Constitution provides that the

"powers and duties of the County Commissioners ... are such as now
are or may be hereafter prescribed by law." Article VII, §2. This
article applies to counties, like Somerset, that do not have home rule
status.

  In considering the powers of county commissioners, the Court

of Appeals has held that these officials have only those powers that
are expressly conferred by statute or that may reasonably be implied
from such statutes. See, e.g., Miller v. County Commissioners, 226
Md. 105, 114, 172 A.2d 867 (1961); County Commissioners v. Page,
163 Md. 619, 632, 164 A. 182 (1933); Chaney v. County
Commissioners, 119 Md. 385, 387, 86 A. 1039 (1913). Moreover,
these powers are to be strictly construed. Walker v. Board of County
Commissioners, 208 Md. 72, 86, 116 A.2d 393 (1955).

 Accordingly, it has been understood that county commissioners

may create debt only in accordance with express statutory
enactments of the General Assembly. See County Commissioners v.
Page, 163 Md. at 632. As a leading commentator observed: "The
power to borrow money and create indebtedness is not an incident
to local government, and such power cannot be exercised unless it
is conferred either expressly or by necessary implication." 15
Eugene McQuillan, The Law of Municipal Corporations §39.07 (3d
ed. 1995) (hereafter "McQuillan"). To create debt for works of
internal improvement, the Constitution expressly requires statutory
authorization. Article III, §54.

  The practice of the General Assembly of enacting laws that

expressly authorize the Somerset County Commissioners to create
debt for various purposes clearly reflects an understanding that the
commissioners could not create debt without such enactments. See
Chapter 45, Laws of Maryland 1995 (landfill); Chapter 1, Laws of
Maryland 1987 (agricultural office center); Chapter 6, Laws of
Maryland 1985 (jail); Chapter 72, Laws of Maryland 1980 (jail);
Chapter 278, Laws of Maryland 1974 (capital projects); Chapter 14,
Laws of Maryland 1972 (water and sewer assistance).

  These laws not only authorize the creation of debt but also

prescribe a maximum amount of debt for each authorized project.[1]
The aggregate amount of these individual authorizations could be
described as the debt limitation for the county. To be sure, there are
at least two public general laws that allow borrowing without
specified limits in certain circumstances. Article 16A, §35 of the
Maryland Code (military emergency); Article 24, §9-102 of the
Code (relief of the destitute). Nevertheless, the limited purposes of
these provisions would effectively serve as a debt limit.

                             II

                        Conclusion

  Although the General Assembly could enact a statute generally

authorizing Somerset County to create debt for any public purpose,
subject to some sort of general limitation, it has not done so. Cf.
Article 25A, §5(P)(1) (authorizing charter counties to issue bonds
that, in the aggregate, "shall not exceed 15 per centum upon the
assessable basis of the county").[2] Therefore, the debt limit of the
county is found in the specific authorizations that the General
Assembly has enacted to enable Somerset County to create debt.

                                      J. Joseph Curran, Jr.
                                      Attorney General

                                      Richard E. Israel
                                      Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

[1] For example, the 1995 authorization for landfill construction
financing limited the borrowing to $5,000,000. Chapter 45, Laws of
Maryland 1995.

[2] In the absence of constitutional provisions prescribing the debt
limit undoubtedly this may be fixed by statute, and when so done a statute
may be repealed in toto, ... or may thereafter either diminish or increase
the amount of the debt limit ...." 15 McQuillan §41.05.