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Emmitsburg: The Municipal Corporation 

Joseph S. Welty

Part 2

The first major supplement to the town's charter came with passage of Chapter 107 of the 1831 Session of the General Assembly. By this act, the commissioners were empowered to pass ordinances to prevent introduction of contagious diseases; to pave and keep in repair side or foot walks; to regulate party walls and partition fences; to provide for, regulate, and fix rates for sweeping or burning of chimneys; to regulate and keep in repair all streets and alleys; to restrain or regulate gaming; to provide for regulating, licensing, or restraining of theatrical or other public exhibitions and amusements; to enact by-laws for the prevention and extinguishment of fires; to regulate and prevent dogs from running at large, and to tax them; to prevent hogs and horses from running at large; to punish corporally any servant or slave violating town ordinances unless their master or mistress pays the fine; to collect taxes at the rate of not more than $.20 per hundred dollars of taxable property, and to make a new assessment in this connection as often as needed; and, finally, to pass ordinances to carry these powers into effect.

In addition to these new powers, the commissioners were authorized to appoint a constable to enforce the ordinances and to appoint such other corporate officers as may be needed. The burgess was appointed a justice of the peace within the town limits by virtue of his office with all jurisdiction and power accompanying the office except for the collection of small debts. He was charged with faithful execution of the ordinances and he was to report the condition of the town, financial and otherwise, to the commissioners.

Chapter 222 of the 1833 Session of the General Assembly provided that, in the case of death, resignation, disqualification, or removal from the town limits of the burgess, the commissioners shall elect a suitable person to fill the office until the next election.

The government of the Town of Emmitsburg ran into difficulties in April 1843. Chapter 270 of the 1843 Session of the General Assembly indicates that no election was held in Emmitsburg that month as was required under the original act incorporating the town. Chapter 270 directed that an election be held on the first Monday of May 1844 for burgess and commissioners of the town. A voter was required to be a resident for a full twelve months preceding the election instead of the six months required in the earlier act. In addition, this act changed the voting day to the first Monday in May.

This election, however, involved much more than an election of town officials, for the very existence of Emmitsburg as a separate corporate entity was put to question. The act stated as follows: "That the free white male citizens of Emmitsburg aforesaid be authorized to elect, provided, a majority of the voters at the first election held under this law, shall signify their consent to the incorporation of said town, and for the purposes of ascertaining whether a majority of the votes of said town are in favor of this act, the judge holding said election shall inquire of each voter, as he may come to cast his ballot, whether he is for or against the incorporation of said town, and shall make a return of the respective number of votes cast for or against and if a majority of voters shall declare themselves in favor of this act, then this act shall have full force and effect; or otherwise be null and void, a burgess and six commissioners for the said town."

An election must have been held and the corporation approved because later legislation speaks of Emmitsburg as if it had been constantly and without interruption a corporate entity. The very next act passed by the General Assembly affecting Emmitsburg gave the "burgess and commissioners of the town of Emmitsburg" power at their discretion to purchase or build an engine house, a fire engine, and other apparatus for use in the town. Acts subsequent to this also recognize the corporate status of the town. Thus, it appears that the referendum on continued incorporation was approved.

An act was passed in 1954 which repealed many of the acts passed by the General Assembly prior to that time, most notably the original act incorporating the town. This act did not eliminate Emmitsburg as a corporate entity, but was, more than anything, an updated version of the charter for the town, merging the original charter with the many amendments made to that date. However, this act also added certain provisions to the charter.

For instance, one of the provisions of the new charter allowed the corporation to own property, but this particular power was limited to a value ceiling of $10,000. In addition, a blanket approval was given by the General Assembly to all acts and proceedings taken by the "Burgess and Commissioners of Emmitsburg" pursuant to the authority vested in them by the original incorporating act and all amendments thereto, and those acts were made binding in law.

As far as I can tell, this seems to be the first time that the burgess was given any power of veto over actions taken by the commissioners. The original incorporating act did provide that all ordinances and by-laws of the corporation were to be signed by the burgess but that could have been for many reasons, particularly to safeguard proper procedure in the passage of ordinances.

However, nothing in the wording of the original act indicates that the burgess could prevent an ordinance from becoming effective by refusing to sign it, as long as passage of the ordinance by the commissioners was regular in procedure. There is no way to tell whether this question was ever tested in Emmitsburg since I did not have access to town minutes for meetings held prior to 1878. However, the new act was more precise in its wording and provided as follows: "And they [the commissioners] shall have all power and authority to enact and pass, subject to approval of the Burgess, all laws and ordinances necessary to preserve the peace and good order of the town, to preserve the health thereof."

Additional power was given to the town for the purpose of installing and maintaining sidewalks. The earlier charter authorized the burgess and commissioners to provide for streets, alleys, footways, and sidewalks. Under the new charter, the burgess and commissioners were given authority to set the standards for sidewalks and to require the property owners to do the work. If a property owner refused, the town could authorize the work at the owner's expense.

If the owner refused to pay the bill, the commissioners were given power to enforce payment by distress if necessary. Town minutes as early as September 9, 1890, indicate that the commissioners were well aware of their powers in this particular area and that they asserted this authority. On September 9, 1890, seventeen property owners, including St. Euphemia's School, were directed to repair or make certain alterations to their sidewalks.

Another provision provided for the contingency that the town might miss another election, as it had in the past. It provided specifically that lack of an election on the proper date would not affect the power of the town to hold an election or to continue as a corporation. In case an election was not held on the proper date, the incumbent burgess and commissioners held office until an election was held. An interesting provision of this charter allows the burgess to act as a justice of the peace with respect to violations of the corporation's by-laws and ordinances. He was given power to issue warrants, try cases, impose penalties and fines for violation, and direct incarceration if the fines were not paid.

In looking over the docket of the cases of the burgess in the only volume I could find in the town office, I found that, at least sporadically in the town's history, the burgess took his duty as enforcer of the town's ordinances very seriously. The docket indicates that for the years between 1911 and 1937, the burgess heard approximately 287 cases involving violations of the town's ordinances. Of the 287 cases heard during that period, and of which we have written records, it appears that the burgess was diligent in not only hearing cases but also in finding for conviction of ordinance violation.

During this period of time the various burgesses rendered 276 decisions for conviction, which, for those not mathematically inclined, amounts to a conviction rate of over 96 per cent. In many of the cases heard, a guilty plea was entered by the defendant.

The town charter was not amended or changed substantially until 1908 when the burgess and commissioners were authorized "to borrow money necessary for the improvements of streets, alleys, and crossings of said town, not exceeding the sum of twenty-five hundred ($2,500.00) dollars, and to issue bonds therefore." A bond issue was discussed specifically by the Burgess and Commissioners on March 2, 1908.

That night it was resolved that the town seek authority to borrow this amount from the General Assembly. The General Assembly approved the bond issue, so long as it was approved by town voters. It was reported to the commissioners that a referendum on the bond issue was held on September 25, 1916, and that it had been approved, 81 to 21. Town minutes indicate that the money raised by the bonds was used to contribute toward payment of work performed by the State Roads Commission in paving Frederick Street from the fountain on the square to town limits, and Gettysburg Street from the fountain on the square to the corporate limits.

The next major revision of the town charter came about in 1910. One can find several references to the "New Charter" in the town minutes. For instance, on May 13, 1910, the first ordinance was passed under the "New Charter" setting monthly board meetings for 8:00 to 9:00 P.M. every second Tuesday in each month, and opening the meetings to the general public. On May 16, 1910, the board discussed the possibility of starting a new ordinance book which would contain the "New Charter" and the town ordinances. On December 13, 1910, the Commissioners entered into a contract with E. H. Rowe "to codify the charter and rewrite same in new book rewrite the ordinances and to have $25.00 for services of same."

The town still has in its possession the handwritten copy of "Charter of the town of Emmitsburg in Frederick County, Maryland, Codified and Corrected to December 15, 1910 for the Burgess and Commissioners of Emmitsburg by Edward H. Rowe." This charter contained the most comprehensive powers clause for the municipal corporation up to that time. It gives the commissioners power to tax and regulate use and construction of electrical plants, electrical wires, telegraph and telephone lines, gas pipes, electric light conduits, railroad tracks, and drains. Veto power is specifically granted to the burgess, and the commissioners are required to muster a 100 percent vote in order to override a burgess' veto.

The power to regulate utilities, however, had been exercised by the burgess and commissioners prior to this time. On February 26, 1903, the town minutes indicate that Mr. Uhler and Mr. Knode appeared before the board "to advocate the placing of Telephone Poles on the Main Street." The result of that meeting was passage of Ordinance No. 104 (a copy of which I have been unable to find), which allowed for and regulated the placing of telephone or telegraph poles and wires in the streets or alleys of the town. The ordinance, according to town minutes, specifically prohibited poles on the main street of the town.

After passage of the charter amendments, town minutes from November 14, 1911, also indicate that the town taxed the C&P Telephone Company on the basis of telephone and telegraph poles it owned within corporate limits. The commissioners also asserted their power when approached for permission to construct facilities for the production and transmission of electric heat, light, and power. The franchise in the town was granted to B. M. Kershner, his heirs and assigns, and later to the Emmitsburg Electric Company.

The ordinance in each case provides as follows: "But the right to control and determine the location of any or all poles, lines, wires, cables, fixtures and appliances is hereby specially reserved to the Burgess and Commissioners of said town of Emmitsburg, Maryland."

Anyone aware of recent events in Frederick City knows that the municipal corporation is now wrestling with the problem of beautifying its main street by burying its utilities underground. We are fortunate in that our previous municipal administrations had the foresight to restrict utilities, where possible, to the alleys and away from the main streets, thus saving us from the cost and disruption of rectifying this unsightly problem.

The next act passed by the General Assembly on behalf of this municipality was to again authorize the corporation to issue a bond for street improvement. Town counsel Vincent Sebold was directed by the Board of Commissioners "to draft a bill and have the same passed by the Session of the Legislature for 1918 to empower the Burgess and Board of Commissioners to have the right to issue another bond to not exceed $7,500.00." On July 19, 1920, an ordinance was passed by the Board of Commissioners in response to a proposal from the State Roads Commission to pave some streets in Emmitsburg only on the condition that the town make a substantial contribution to the project. This ordinance submitted to the town voters the question of whether or not to issue these bonds. These street improvement bonds were issued after a visit to the governor of Maryland by Mrs. Andrew Annan. In response, the governor wrote her a letter which was entered into the town minutes on June 1, 1922:

"Mrs. Andrew A. Annan Emmitsburg, Maryland

Dear Mrs. Annan,

I had a long talk with Mr. Mackall yesterday about the Emmitsburg Street. It is pretty difficult to work out anything, because of the fact that the State Roads Commission has already built more streets in Emmitsburg than any other town of the State.

I am most anxious to see something more done, however, and after a great deal of discussion as to the possible ways, Mr. Mackall said that the town of Emmitsburg had authorized $7,500 bonds for street paving purposes, of which $6,500 was, he thought, unissued. If the town will issue these bonds and contribute this amount of money, then the State Roads Commission will contribute the balance of the cost of paving with concrete the street indicated on the little map you left with me, as being 5/10th miles in length. The total cost, Mr. Mackall said, would be something over $12,000.

The result of this would be that city would pay half and the State half. If this is done, then there will be no town in the whole state for which the State Roads Commission had done anything like as much in street paving as it will be doing for Emmitsburg, and Mr. Mackall feels that it would simply not be possible for the State to do anything more. Do you think this plan could be worked out?

With kindest regards, I am Very Truly Yours

Albert C. Ritchie Governor"

That very night the state's offer was accepted. Another agreement was later reached between the town and the State Roads Commission whereby the town would contribute $7,500 to have the Roads Commission pave West Main Street from the fountain on the square to the town limits.

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