Evening star., 1948-10-14

Disputed Section Of
Charter Constitutional
The Montgomery County Circuit
Court was In error when 1t held q
section Of the proposed charter form
Of county government would violate
the State Constitution.
This was brought to light in q
detailed opinion fled yesterday by
the Maryland Court Of Appeals and
written by Chief Justice Ogle Mar
bury.
A reversal Of the Circuit Courts
ruling was announced October 6 by
the high tribunal, but the question
of whether the constitutional issue
had been ruled upon remained un-
clear until the detailed opinion was
filed.
"Since our conclusion is that the
portions Of the charter held invalid
by the chancellors are not void,"
the Appeals Court opinion said, ut
follows that the charter Gas drafted)
should be voted upon at the Novem-
Der election"
The chancellors referred to were
Judge Stedman Prescott and Char
les Woodward Of the Montgomery
County Circuit Court.
0l.~y> n~ss.S n>~SS>S
Twice during the opinion and
again at the end, for purposes EN-
phasis, the high court said 'our
decision here does not involve any
further construction of the proposed
charter than we have indicated, nor
have we passed upon it except to
decide the single point discussed in
this opinion"
Judge Marburys decision also de-
Tended the courts rights to review
the, constitutionality of a charter,
or sections of it, even before it has
been voted upon and been made
law. But no single portions of it
may be removed, he said. Mont
gonery County residents will ballot
on whether to accept the home
rule" plan when they 60 to the polls
November 2.
Specifically, the Supreme Court
held that the charter section relat-
ing to setting annual budgets by
the proposed County Council, would
not violate the constitution.
Had Sought Injunction.
Hubert A. Schneider, Bethesda
and Washington attorney, con-
tended the appropriation section
was unconstitutional and also
sought an injunction to prohibit the
Board Of Election Supervisors from
placing the charter question on the
ballot.
The Circuit Court had ordered
removed from the suggested plan
Of government a provision which al
lowed the appropriation Of funds
In June executive sessions. It held
that appropriation was a legisla-
tive function and that legislative ses-
sions were provided for in May
therefore appropriations must be
made in May.
Taking note of the defendants
contention that "the courts cannot
interfere with legislative processes"
the Marbury opinion had this to
say:
I'm this State we have actually
passed upon the validity of pro-
posed constitutional or charter
amendments and have enjoined sub
mission of an invalid charter
amendment. In the cases cited
there were presented specific ques-
tiens which would necessarily have
arisen after approval by the voters
and which could Just as conveniently
be decided before submission as
afterwards. We think such q ques-
tton is now presented as the court
should consider In advance Of sub
mission.
Cannot Delete Sections.
but In 90 doing We are deciding
none Of the questions which con-
ceivably may arise a. to the valid.
ity, construction or application of
various other provisions Of the pro-
posed charter or Of action taken
hereunder"
The high court regarded as
strange" the absence, anywhere in
the proposed charter, Of any pro-
vision for fixing and levying the
county tax.
The charter as they 0udges Of
the Circuit Court have ordered It
submitted to the voters is emascu-
lated and is not the charter sub
nitted by the Charter Board" the
Supreme Court observed. 1--WE have
been referred to no case which au-
thorizes the courts to strike out, be-
fore submission, part Of a proposed
enactment which the people are to
vote upon. II they find such pro-
posal partly invalid they may 50
hold, but they cannot delete the
invalid part and submit the re-
mainder. The only charter which
can be submitted, If any, is the one
drafted by the Charter Board with
out deletions." .