Evening star., 1943-04-25
J,sbond Smith Assdi|s
Montgomery Charter
As Ineffective
oBoord Urged to Make
7 est Case in Court
On Documents Powers

Declaring the proposed Montgom-
cry County charter is "palpably in
effective as an instrument Of gov
ernment," J. Bond Smith last night
advised the Charter Board to give
serious and immediate considera-
ton" to instituting a test case to
secure judicial opinion as to the
effectiveness of the document under
the Maryland constitution.
Mr.. Smith, one of five opponents
of the charter who ran for the
Charter Board in November said,
that under a constitutional limita-
tion required to be included in the
charter, Montgomery County would
be without legislative body for IL
months of every year.
In a 14-page brief compiled in
answer to a request by Frederic
p. Lee, chairman of the charter
board. for suggestions concerning
the preliminary draft of the pro-
posed charter, Mr.. Smith cited the
mandatory requirements OF the con-
stitution that charters for various
counties shall provide that county
council shall not sit for more than
one month in each year for the
purpose of enacting legislation and
that all legislation shall be en-
acted in that month, to be deslg-
mated by the charter.
Points Out Defects.
He said that while the drafters
of the charter had attempted TO
vest the county council with powers
to adopt ordinances by designating
1t as an executive power that could
act throughout the year, in my
opinion it is wholly ineffective, -
since. he said the Maryland con-
stitution specifically includes ordl-
nances as legislative enactments'
which. in the case of the Montgom-
ery County charter, could only pe
enacted during the month of April
Citing a number of cases IN Whlch
courts have held that ordinances
applying to zoning and garbage COL
lection in communities have been
held legislative and not executive
actions. Mr.. Smith pointed out that
under the charter as it now STANDS.
MONTGOMERY would be without the
means for providing laws which
might become necessary from time
to time in rapidly growing COM
munity.
Quoting an opinion by Alfred
Bettman, Cincinnati zoning author
ity that he could find no escape
from that "one-month clause and
the damage it would do" Mr.. Smith
said it is impossible to ignore these
exnressions as to the effect of this
provision of the Maryland constl-
tuition.
Conflict of Authority.
"Inevitably I must regard the pro-
visions in question as a fatal de-
feet which your board was required
to incorporate in any charter pre-
pared under the provisions OF the
constitution.
Notwithstanding the device en-
ploved by you of designating as
executive acts obviously legislative in
their nature, it seems evident that
the county council would be power
less except during the month OF
April to enact ordinances or regula-
tions, emergency or otherwise, al
fecting health, police protection,
electrical or other regulations or
ordinances which obviously require
the attention of any governing body
of any county throughout the year
TT would seem to follow that were
any of these ordinances or regula-
tions to be declared invalid by
court. Montgomery County under
the charter would be powerless to
remedy the defect, or to enact
valid ordinance or regulation for a
period of as much as IL months.
During this time there would be
no ordinance or regulation on the
subject.
Suggests Test Case.
Under these circumstances, I am
forced to conclude that the charter
prepared by your board, containing
as it does this inherent and funda-
mental defect, is palpably ineffec-
tive as an instrument of govern
ment."
In suggesting that test case be
brought to obtain court conStruc-
ton on whether the constitutional
section limiting legislative sessions
under the charter to one month a
year would also limit the passing
of ordinances and regulations to
that period Mr.. Smith pointed out
that it would be preferable if the
people of the county secured such
a construction from the Court of
Appeals before rather than after the
vote on the charter next year.