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The actual date is specified rather than
provided by calculation in order to empha-
size the deadline.
The fifth and sixth sentences are de-
signed, one, to allow charter adoption pro-
cedures now under way pursuant to exist-
ing law to continue, as in Howard County
where the proposal will be submitted to
vote in November 1968; two, to make it
clear that existing charters qualify as in-
struments of government and need not be
readopted. This would apply in the five
areas that have charters now, Baltimore
County, Anne Arundel County, and so on.
Three, it will continue all existing gov-
ernments, including county commissioner
forms, until they are changed in accord-
ance with the Constitution.
Section 7.04 reads as follows: "An
amendment to an instrument of government
of a county shall become effective only
after the affirmative vote of a majority of
the voters of the county voting on the
amendment. An amendment may be pro-
posed by the governing body, or by petition
of the voters in accordance with the instru-
ment of government or by such additional
means as may be provided in the instru-
ment of government or by the General As-
sembly by public general law."
The section makes clear that by which-
ever method is utilized, amendment must
be submitted to referendum of a majority
of the voters of the county voting on the
amendment. You will note there is also an
initiative procedure. Again, the importance
of this is that if the legislature adopts or
prepares an instrument for a county which
has not adopted its own, the voters can
change it if they wish to do so.
Recommendation section 7.05, Powers of
Counties, is the heart of home rule for
counties. It provides that counties share
the State's powers rather than that the
General Assembly must be relied upon to
grant specified powers to counties.
As I said already, the shared powers con-
cept provided by this section clearly recog-
nizes that the General Assembly is vested
with plenary legislative power under sec-
tion 301, which we adopted the other day
in the Committee of the Whole, and pro-
vides that the legislature may by public
general law withdraw any and all power
from the counties. Until the General As-
sembly directly denies the power by public
general law or preempts the field by legis-
lation, each county will be free to perform
any function not denied to it with two ex-
ceptions.
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First is the judicial power. Counties can-
not exercise judicial power. This is covered
by Article 5 of the Constitution. This de-
nial is not intended to prevent counties
from establishing boards and agencies, even
though these might exercise a quasi-judicial
function.
Second, this excludes the power to tax
from among the powers shared by the coun-
ties. Several witnesses, eminently knowl-
edgeable in the area of Maryland's financial
and tax structure, testified that any broad
grants of taxation power to counties could
well result in either deterioration of the
state's excellent credit rating or prolifera-
tion of nuisance taxes, or both.
Moreover, both the Committee on State
Finance and Taxation and the Legislative
Liaison Committee unanimously recom-
mended that the tax power be constitu-
tionally retained in the State.
Accordingly, section 7.05 provides that
the counties may only exercise such taxa-
tion powers as the State grants to them.
The grant of tax power may vary from
county to county as you know. Existing tax
powers are also preserved.
I should observe for the benefit of the
Committee on Style, Drafting and Arrange-
ment that I think section 8.01-I proposed
by the Committee on State Finance and
Taxation does basically what we do here.
As the intention is the same, it is not
necessary to have this provision in both
places.
The major factors leading to our recom-
mended section 7.05, adopting the shared
powers approach are these: first, the re-
strictive Dillon rule would be reversed. I
allured to this earlier. Under this rule a
local unit can exercise only the stated
powers and no others. It could exercise only
those granted in express words, those neces-
sarily or fairly implied in or incidental to
the powers granted, those essential to the
declared objectives and purposes of the
corporation, not those that were convenient
but those that were indispensable.
This narrow rule of interpretation arose
in 1870. In fact before then. It was enunci-
ated in an 1873 volume of Dillon on mu-
nicipal corporations, but I think he ex-
pressed the same idea in his first edition.
Efforts to repeal the Dillon rule by direct-
ing a broad construction in favor of grant-
ing local units powers has been notably
unsuccessful.
New Jersey tried it in 1947 and we un-
derstand it did not work. We are convinced
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