Evening star., 1949-01-22
implied Power
Basis Of Council
Election Ru|ino
State Appeals Court
Explains Rejection Of
Anti-Churter Plea

Anti-Churter Plea
The Maryland Court of Appeal
disclosed yesterday that the doc
trine of implied powers" was hel
applicable when it ruled recently il
favor of a special County Council
election in Montgomery County.
In a decision made public il
Annapolis. the court explained VIII,
it rejected an anti-charter plea t,
prohibit the balloting January 6.
Meanwhile, the elected council
which took Office last week-got it
baptism of protest to Governmental
change.
Einar B. Christensen. president o
the Silver Spring Board of Trade
declared that a plan the counci
Is considering to curtail services
at county service buildings in Sill
yer Spring and Bethesda ignores
the welfare and wishes" of tht
citizens.
Plan NOW BEFORE COUNCIL
The reorganization plan wa!
placed before the council at it.
first meeting Tuesday by Acting
County Manager Irving G. McNayr
Mr.. Christensen denounced it in 6
radio interview with Ernie Tanner
over Radio Station WGAY, Silver
Spring.
He declared many citizens" hae
protested the proposed reorganiza-
tion to him, and added that it woulc
represent a "retrogression to the
horse and buggy days He sale
Mr.. McNayr's proposal to transfer
the service building work to Rock
vile would result in a "picayune
saving"
Mr.. McNayr's recommendation i.
amcng matters to be considered
when the council meets Tuesday.
The Court of Appeals decision
outlined reasons for denying the
request of four Republican County
Commissioners who sought to block
the January election. The opinion
was written by Judge Emory H
Niles of Baltimore, who sat as a
member Of the high tribunal in
the case
Order Validated Vote.
Before its Christmas recess. the
court entered a per curjam" order
validating the vote According to
the Associated Press, the court held
yesterday that:
IF the voters of the county have
express power to adopt charter
providing for an elective council,
we believe there can be no reason
able or fair doubt but that they
have implied power to carry out
such authority by providing for the
means ard conditions under which
such election has been held.
Under the well recognized doc
trine of implied powers, the voters
have the power to specify in the
charter the time and manner at
which and in which these vacancies
shall be filled in order that effect
may be given to the charter itself
AS for the Maryland requirement
that county elections be held every
four years only, the court held that
this "was designed for and its effect
is limited to the establishment OF a
system to regulate general elections
e .. 1t is not designed to re-
uuire, nor does it prohibit" special
elections.
Provision Explained.
The opinion went into a lengthy
explanation of the home rule amend
ment provision specifying that mem
bers of a county council should be
elected on the same basis as general
assembly members.
There is no provision in the gen.
eral assembly regulations for special
elections to fill vacancies, the court
pointed out. AS the county charter
and the law under which it was set
I'D call for an elected council, the
court said. there is no provision in
the law of the State of Maryland
applicable to the situation presented
in the case at bar"
Therefore, the opinion said,
"whatever may be the effect OF the
act upon future elections to I'LL the
places of the members of the first
county council after the expiration
of their terms, that act has no ap-
plication to the nomination and elec-
ton of the first county councilmen." "
Answers Contention.
In answer to the contention the
commissioners had their terms cut
short illegally, the court said:
"It need only be said that the
commissioners hold their Office sub
ject to the possibility that they may
be ousted under provisions OF the
home-rule amendment providing for
the adoption of charter.
Questions as to whether their
Offices continue and whether they
are due salaries after establishment
of the county council are not now
before us, and it is therefore not
necessary to make any decision or
express any view upon these points" ."
The opinion stated emphatically
that the county commissioners no
longer had powers of government.
THE charter of Montgomery
County now adopted is an expression
of the will of the people of that
county, acting in accordance with
their rights and privileges the court
said.
ITO nullify its provisions for two
years because of an apparent in
consistency between charter provi-
sions and constitutional provisions
relating to other matters would be
grave step involving serious risks tc
the county"
Death Of VA MESSENGER