Maryland Advisory Opinions January 01, 2002: 87 OAG 99

Advisory Opinion Text

October 9, 1981

The Honorable Helen L. Koss House of Delegates

This is in response to your request for advice of counsel on which amendment to a county charter would prevail in the event that two are adopted at the same time and both are in irreconcilable conflict. Although a court would certainly make every effort to harmonize apparently conflicting amendments adopted at the same time, if they were indeed utterly irreconcilable, it is my view that neither could be given effect.

The Charter Home Rule Amendment to the Constitution provides that amendments to a charter may be proposed by the council or by petition of the voters. Article IX-A, Sec. 5. A proposed amendment is to be submitted to the voters at the next general or congressional election, and, if a majority of the votes cast

In Ritchmont Partnership v. Board of Supervisors of Elections for Anne Arundel County, 283 Md. 48, 58 (1978), the Court of Appeals referred to a county charter as being, "in effect, a local constitution." See also Cheeks v. Cedlair Corp., 287 Md. 595, 606 (1980). Neither the State Constitution, Art. XIV, Sec. 1, nor thereported cases of the State's courts have dealt with the issue of the simultaneous adoption of irreconcilable amendments. However, it has been said that "where a section of the constitution is amended at the same time by two different amendments, and the amendments adopted are directly in conflict, and it is impossible to determine which should stand as a part of the constitution or to reconcile the same, then they must both fail." 16 Am. Jur. 2d, "Constitutional Law," Sec. 103. The same has been said to be true with respect to simultaneously enacted, irreconcilable statutes. 1A Sutherland Statutory Construction Sec. 23.17 (3 Ed.). These rules would appear to be premised on the view that in the absence of a constitutionally sanctioned way for resolving such conflicts, the courts should not attempt to bring clarity to that which is inherently confused. Thus, although some State Constitutions provide that in the event of the simultaneous adoption of conflicting constitutional amendments, the one receiving the highest vote prevails, 16 Am. Jur. 2d, "Constitutional Law," Secs. 47 and 103, clearly there must be an express provision of the Constitution to bring about this result.

In summary, in the absence of any express provision in Article XI-A, Sec. 5, for determining which amendment to a county charter prevails in the event of the adoption at the same time of utterly irreconcilable amendments, I think that the analogy to amending a Constitution might reasonably be followed with the result that neither amendment could be given effect. I might add that inasmuch as the Constitution itself declares that an amendment to a county charter is adopted when approved by a majority of the votes cast, Art. XI-A, Sec. 5, and as the Court of Appeals has said that the power to amend a county charter is derived directly from the Constitution, Ritchmont at 58-59, and Cheeks at 610, I think that providing for the resolution of conflicts between county charter amendments would have to be done by amendment of the Constitution, rather than the enactment of legislation. By way of contrast, I think that this matter could be dealt with by legislation with respect to municipal charters, inasmuch as Art. XI-E, Sec. 4, expressly deals only with the proposing of amendments to municipal charters, not their adoption, and directs the General Assembly to enact consistent legislation for the amendment of such charters.

While this letter represents my considered view of this matter, it is not an Opinion of the Attorney General

Richard E. Israel

Assistant Attorney General