Did Maryland's municipal home-rule restriction on new fees apply to St. Mary's County commissioners?

Plain-English summary

A Maryland delegate asked whether Article XI-E of the State Constitution, including its restriction on municipal taxes and fees, applied to St. Mary's County commissioners. A county attorney cited a statute calling county commissioners a “corporation” and court decisions calling them a “municipal corporation.” The Attorney General adopted an attached Assistant Attorney General letter explaining why that label had a different scope in the municipal home-rule article.

The answer was no. Article XI-E concerned incorporated cities, towns, and villages, not St. Mary's County. The fact that commissioners could be called a municipal or public corporation for other legal purposes did not put the county within the constitutional article.

The attached letter expressly did not decide whether St. Mary's County could impose the regulatory fees that prompted the inquiry. It addressed only whether Article XI-E's municipal restriction applied. The AG's own signed letter was brief and adopted the attached counsel analysis, which is reproduced in the official PDF.

Currency note

This opinion was issued in 2005. 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.

Historical summary

County commissioners and county attorneys

The opinion removed Article XI-E as the constitutional basis for analyzing the county's particular fee question. It did not supply a substitute grant of fee authority. The attached lawyer's letter said that the county's current power to impose those fees had not been reviewed.

Taxpayers and local-government researchers

The AG distinguished the use of “municipal corporation” as a broad description of a public corporation from the narrower class governed by the municipal home-rule article. That distinction was the opinion's holding; a particular fee's validity remained an open question.

Common questions

Was St. Mary's County a municipality under Article XI-E?

No. The AG agreed with counsel that the article covered incorporated cities, towns, and villages, rather than county commissioners.

Why did some Maryland cases call county commissioners a municipal corporation?

The attached analysis said commissioners were a public corporation for some purposes. It explained that the phrase did not carry the same meaning for Article XI-E's home-rule scheme.

Did the opinion approve a particular St. Mary's County regulatory fee?

No. A footnote in the attached letter said the county's authority to impose the fees behind the question had not been reviewed.

Background and statutory framework

Article XI-E, §5 limited the ability of covered municipal corporations to impose specified new taxes and fees without legislative authorization. The attached analysis traced the constitutional article's municipal home-rule purpose and concluded that it did not extend to a county board of commissioners. The AG adopted that conclusion while leaving fee authority under other law undecided.

Citations and references

• Article XI-E, §5: municipal tax and fee provision that prompted the question.

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/search-opinions.aspx
• Original PDF, including the attached counsel letter: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2005/90oag24.pdf

Original opinion text

24
[90 Op. Att’y

COUNTIES

S T. M ARY’S C OUNTY N OT A “M UNICIPAL C ORPORATION” FOR P URPOSES OF A RTICLE XI-E OF THE S TATE C ONSTITUTION

January 28, 2005

The Honorable John L. Bohanan, Jr.
House of Delegates

On behalf of the St. Mary’s County Office of Law, you have requested our opinion on the application of Article XI-E, § 5 of the Maryland Constitution to St. Mary’s County. Assistant Attorney General William R. Varga recently provided you with a letter of advice, which concluded that St. Mary’s County is not a municipal corporation for purposes of Article XI-E of the Constitution. We have reviewed Mr. Varga’s analysis and agree with his conclusion.

J. Joseph Curran, Jr.
Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice

Attachment

December 22, 2004

The Honorable John L. Bohanan
House of Delegates

I am writing in response to your request for advice concerning the application of Article XI-E of the Maryland Constitution to St. Mary’s County. Your request was in response to an inquiry from Heidi E. Dudderar, Assistant County Attorney, questioning the

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application of Article XI-E, §5 of the Constitution 1 to the County and the County’s ability to impose certain fees.

In her letter, Ms. Dudderar cited Article 25, §1 of the Annotated Code of Maryland, declaring the county commissioners to be a corporation, and a number of Maryland court decisions recognizing the county commissioners as a municipal corporation. Ms. Dudderar is correct that the Board of County Commissioners is a municipal corporation for certain purposes. See, e.g., County Comm’rs of Carroll County v. Gross, 301 Md. 473, 476, 483 A. 2d 755 (1984) (Court of Appeals considers county commissioners to be municipal corporations). That is to say, the Board of County Commissioners is a public corporation, an instrumentality of the State. Andy’s Ice Cream, Inc. v. City of Salisbury, 125 Md. App. 125, 155, 724 A. 2d 717 (1999) (internal cites omitted); see also Neuenschwander v. Washington Suburban Sanitary Comm’n, 187 Md. 67, 74, 48 A.2d 593 (1946) (terms “municipal corporation” and “public corporation” synonymous). However, a county government is not a municipal corporation for purposes of Article XI-E, the constitutional amendment that granted home rule to Maryland’s municipalities.

Article XI-E of the Constitution, proposed by the Legislature and ratified by voters in 1954, granted home rule to “all incorporated cities, towns, and villages in the State, except the City of Baltimore.” Hitchins v. Mayor and City Council of Cumberland, 208 Md. 134, 139, 117 A.2d 854 (1955).2 Perhaps the best way to consider the scope of Article XI-E is to consider its historical development. The municipal home rule amendment resulted from a recommendation of

1
Article XI-E, §5 of the Constitution provides in relevant part:

No such municipal corporation shall levy any type of tax, license fee, franchise tax or fee which was not in effect in such municipal corporation on January 1, 1954, unless it shall receive the express authorization of the General Assembly for such purpose, by a general law which in its terms and its effect applies alike to all municipal corporations in one or more of the classes provided for in Section 2 of this Article.
2
Baltimore City is governed as a charter county pursuant to Article XI-A of the Maryland Constitution.

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[90 Op. Att’y

the Commission on Administrative Organization of the State, frequently referred to as the "Sobeloff Commission.” See Second Report: Local Legislation in Maryland (1952). The Commission’s focus was on minimizing the burden on the Legislature in dealing with local legislation each session. The first recommendation in this report was as follows:

A provision should be added to the Maryland Constitution prohibiting the enactment of local laws relating to municipal corporations, except for local laws establishing local property tax and debt limits. Such a Constitutional provision should authorize municipalities to amend their own charters or adopt new ones.

Id., p. 3. The Commission defined the term “municipalities” for purposes of its report: “[t]he term “municipalities” ... includes only areas which are specifically incorporated by law as cities and towns and which have authority to select officers to perform such municipal functions. Municipalities do not include counties or unincorporated areas sometimes identified as cities, towns, or villages, or legally established special tax areas, special districts, administrative areas, or special improvement districts.” Id., p. 10 (emphasis supplied). The Sobeloff Commission dealt separately with the concern of local laws considered each session pertaining to
county governments. 3
The Legislature adopted this
recommendation, with minor amendments, leading to adoption of Article XI-E of the Constitution. See Chapter 53, Laws of Maryland 1954.

During the 1955 session, the Legislature adopted legislation for the implementation of Article XI-E. Chapter 423, Laws of Maryland 1955. That legislation added for purposes of the home rule subtitle of Article 23A a definition of municipal corporation:

3
In recommendation 2 of its report, the Commission recommended a constitutional amendment that would have restricted the Legislature’s ability to enact local laws for individuals counties and changes to Article XI-A of the Constitution to make charter home rule more workable. Second Report: Local Legislation in Maryland, p. 5-7. However, the Commission’s second recommendation pertaining to counties was never adopted.

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(a) As used in this subtitle the term
“municipal corporation” shall include all cities, towns and villages, now or hereafter created under any general or special law of this State for general governmental purposes, which are subject to the provisions of Article XI-E of the Maryland Constitution, which possess legislative, administrative and police powers for the general exercise of municipal functions, and which carry on such functions through a set of elected and other officials.
The term is not to include any special tax area or district, sanitary district, park or planning district, soil conversation district or other public agency exercising specific powers within a defined area but which does not exercise general municipal functions and the term is not to include the Mayor and City Council of Baltimore.... The General
Assembly hereby finds, determines and declares that the term “municipal corporation” in Article XI-E of the Maryland Constitution does not embrace or include any such special tax area or district or the board, commission, authority or public corporation administering the same.

(b) The term “municipal corporation” does not embrace or include the Washington Suburban Sanitary Commission, or the
Washington Suburban Sanitary District under the jurisdiction of such Commission; the term “municipal corporation” does not embrace or include the Maryland-National Capital Park and Planning Commission, or the Maryland- Washington Metropolitan District or the
Maryland-Washington Regional District under the jurisdiction of such Commission.

Article 23A, §9(a) and (b). To be sure, the statutory definition does not explicitly exclude counties in the manner that other governmental entities are excluded. However, it is clear that Article XI-E of the Constitution was never intended to, nor has it ever been interpreted by the courts to, extend to boards of county commissioners.

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[90 Op. Att’y

In summary, the Board of County Commissioners of St. Mary’s County is not a municipal corporation for purposes of Article XI-E of the Constitution.4 Although not an opinion of the Attorney General, this letter does reflect my considered views on this matter.

William R. Varga
Assistant Attorney General

4
Ms. Dudderar’s letter focused on the application of Article XI-E, § 5 of the Constitution to St. Mary’s County. She did not ask, and I have not reviewed, the current authority of the County Commissioners in connection with the regulatory fees that generated her inquiry.