Mayor of Baltimore v. Knell

75 A. 638, 111 Md. 583, 1909 Md. LEXIS 147

• Court: Court of Appeals of Maryland
• Decided: November 17, 1909
• Status: Published

Opinion

Burke, J.,

delivered the opinion of the Court.

The record before us contains forty-nine appeals and thirteen cross-appeals taken from an order of the Circuit Court of Baltimore City by which certain property specified in the order was classified and assessed for taxation for city purposes for the year 1909. The forty-nine appeals were taken by the city, and the cross-appeals by certain of the property owners.

The Act of 1908, Chapter 161, gives a right of appeal to the Baltimore City Court to any person who may claim to be aggrieved because of any assessment, or classification made by the Appeal Tax Court. All such appeals must be taken within thirty days after the.assessment or classification complained of has been made, and the Act prescribes the method by which the appeal shall be taken. A like appeal is given to. the city. The Act confers upon the Court the power to assess anew, or to classify anew the property forming the subject of the appeal; and provides that in the absence of any affirmative evidence to the contrary the assessment or classification appealed from shall. be affirmed. The Court is authorized to consolidate any such appeals, or to hear and decide them separately. An appeal is allowed to this Court within ten days after the rendition of the judgment of the Baltimore City Court.

On the 31st of October, 1908, Frank L. Knell filed a petition and appeal under the Act mentioned alleging that the tax imposed upon his property for the year 1909, in the annexed portion of Baltimore City, was illegal for the following reasons first, because the block of ground in which said prop erty is located is not surrounded by avenues, streets and alleys, opened, graded, kerbed, and otherwise improved from kerb to kerb by pavement, macadam, gravel or other substatial materials;- second, because the block of ground in which said property is located contains more than two hundred thousand superficial square feet of ground; and third because the assessment and classification of the property is contrary to law.

Similar appeals, which had been taken by all of the other property owners whose names appear in the record, were consolidated with the appeal of Frank L. Knell, and all the appeals were submitted for determination without the intervention of a jury. Judge Hablaet, to whom the cases were submitted, by agreement of the parties visited and inspected the area orSimilar appeals, which had been taken by all of the other property owners whose names appear in the record, were consolidated with the appeal of Frank L. Knell, and all the appeals were submitted for determination without the intervention of a jury. Judge Hablaet, to whom the cases were submitted, by agreement of the parties visited and inspected the area or block of ground in which the properties are located, and having considered the questions of law and fact arising in the consolidated cases, decided that the classification of the properties involved in the appeal" as urban properties, and as such liable to the full rate of city taxation made by the Appeal Tax Court was erroneous, and such classifications were set aside. Then proceeding under the authority conferred by the Acts of 1908, Chapter 167, and 1908, Chapter 286, the Court classified and assessed the properties as follows:

Nos. 1901, 1903, 1909, 1911, 1917, 1919, 1925, 1927, 1931, 1935, 1937, 2001, 2003, 2005, 2009, 2033, 2035, 2037, 2039, 2041 and 2043 N. Fulton avenue, 1642, 1644, 1646, 1648, 1650, 1654, 1658, 1660, 1662, 1708, 1710, 1712, 1716, 1718, 1722, 1732, 1734, 1736, 1738 and 1744 W. North avenue, 1611 Clifton avenue, and 2674, 2676 and 2678 Pennsylvania avenue are hereby classified as suburban real estate and subject to taxation for city purposes at one dollar and thirty cents ($1.30) on the one hundred dollars ($100.00) of the assessed value thereof.

And further that Nos. 2608, 2614, 2620, 2626, 2638, 2644, 2648, 2652, 2656, 2662 and 2668 Pennsylvania avenue to a depth not exceeding two hundred feet (200') are hereby classified as suburban real estate, and subject- to taxation for city purposes at one dollar and thirty cents ($1.30) on the one hundred dollars ($100.00) of the assessed value thereof, and so far as the same or any of them shall exceed a depth of two hundred feet (200') such portions of said lots or any of them as are in excess of two hundred feet (200') depth are hereby classified as rural real estate, and subject to taxation for city purposes at sixty-five cents ($.65) on the hundred dollars ($100.00) of the assessed value thereof. It is from this order that the appeals in these oases were taken.

A diagram of the block which is the subject of controversy is here inserted, which shows its situation and the locations and extent of the several properties specified in the Court’s order. The appeal of the city is from the whole order, while the cross-appeals are to so much only of the order as affect the properties fronting on Pennsylvania avenue.

The contention of the city is two-fold: first, that all of the property in the area shown on the plat should be classified as urban property, and taxed at the full city rates; and secondly, that even if this view be not correct, yet the property numbered 1611 to 1617 Clifton street and 2001 to 2045 Pulton avenue should be taxed at the full city rate.

The property owners in the cross-appeals maintain that the property abutting on Pennsylvania avenue should be classified as rural property, because they argue that it fronts on a private way upon which tolls are charged within the city limits. It is thus apparent that the decission of the case involves the construction of the Act of 1908, Chapter 286, relating to the classification, assessment, and taxation of property in the territory annexed to Baltimore City by the Act of 1888, Chapter 98.

The Act of 1908 was approved on April 13th of that year, and took effect from the date of its passage, and in order to determine whether the property involved in these appeals is subject to the full city rate for the year 1909 it is necessary to know the exact condition of the block at the time the Act became operative.

The area, or block of ground, within which the lots and. houses which have been assessed, is located in that part of the city known as the annex, and as appears by the above diagram, is bounded on the northeast by Pennsylvania avenue, on the east by Butcher’s lane, on the south by North avenue, on the west by Fulton avenue, and on the northwest by Clifton street. This area contains four hundred and twelve thousand two hundred and eighty-two superficial square feet.

Since the passage of the Act of 1902, Chapter ISO, known as the Foutz Act, the property located in this block has been taxed at the rate of sixty cents on the hundred dollars for city taxes; but all the property within the area was classified for 1909 by the Appeal Tax Court at the full city rate of taxation.

North avenue, Clifton street and Pennsylvania avenue are improved, from kerb to kerb by stone pavement, and Fulton avenue by asphalt blocks, and all of said streets were so paved prior to 1902. Butcher’s lane was improved throughout its length and width by Belgian blocks in August 1908, prior to which ¿Late it had never been paved at all. Pennsylvania avenue is a turnpike road owned by the Reisterstown Turnpike Company upon which tolls are charged within the limits of Baltimore City; but the only toll-gate on this turnpike, within the city limits, is located one-half mile northwest of Pennsylvania avenue and Clifton street.

The dirt lane, or passage ways, designated as Bruce alley on the above diagram, has never been legally opened, graded, kerbed, or paved; nor has it ever been graded, kerbed or paved, except that it was paved with cobble stones and has wooden kerbing from Clifton street to the ten-foot alley in the rear of houses Nos. 1611 to 1617 Clifton street, a distance of 106 feet, which pavement and kerbing was done at the expense of the adjoining property owners. Bruce alley is used principally as 'á driveway and approach from Butchers lane to the rear ends of the properties fronting on Pennsylvania avenue. It also appears that some blocks in the old city limits exceed two hundred thousand superficial square feet, and that one block in the annex, containing 255,8,40 square feet, has been classified and taxed at the full city rate.

Is this property, or any of it, in the condition we have described it to be, liable to the full city tax rate for the year 1909 under the Act of 1908, Chapter 286? This is the principal question in the case. The Act makes it the duty of the Appeal Tax Court, as soon as possible after the Act takes effect, to divide aE real and leasehold property in the annex into three separate classes, to be known as urban, suburban and rural property, for the purposes of city taxation for the year 1909, and to revise said classification annually thereafter for city taxation on or before October 1st, in each and every year for succeeding years in accordance with the following classification, said three classes to be defined and subject to city taxation as follows: (1) “All real and leasehold property in said territory which is now legally liable to full city taxation, and all real and leasehold property situated in said annexed territory, located in a block of ground not exceeding 200,000 superficial square feet formed and bounded on all sides by intersecting streets, avenues or alleys, opened, graded, kerbed and otherwise improved from kerb to kerb by pavement, macadam, gravel or other substantial material, shall be classified as urban property, and shall be subject to the same rate of city taxation as real and leasehold property within the old limits of said city may be subject.

(2) Every lot, or piece of real and leasehold property to a depth not exceeding 200 feet, situate in said territory, which fronts, binds or abuts on any public street, avenue or highway, lighted at public expense and completely paved from kerb line to kerb line, including gutters, with bitulithic, asphalt blocks, Belgian blocks, vitrified brick, macadam in good condition as heretofore laid before this section of this Article took effect, or if laid subsequent thereto, laid without direct assessment for the cost thereof, in whole or in part, upon the abutting property owners, unless the owners of a majority of front feet of property binding upon said street, avenue or highway, or part thereof to he paved, expressly assent to said direct- assessment, and laid in accordance with existing standards of proper macadam construction as laid under the supervision of the City Engineer or other improved pavements (or with cobble stones laid before this section of this Article took effect, or laid subsequent thereto upon the assent of the owners of the majority of front feet of property binding upon said street, avenue or highway, or part thereof to be paved), as distinguished from earth or gravel, which streets, avenues or highways are continuously connected by public or private streets, roads, avenues or highways (other than turnpikes upon which tolls are charged within the limits of said city), paved from kerb line to kerb line, including gutters, with bitulithic, asphalt blocks, Belgian blocks, vitrified bi’icks, macadam or other improved pavement or cobble stone, as distinguished from earth or gravel, Avith the territory embraced Avithin the old city limits, shall be classified as suburban property, and shall be subject for the purposes of city taxation at a rate equal to two-thirds of the rate to which urban property may be liable, but in no year shall the rate for suburban property exceed that of one dollar and thirty cents ($1.30) on one hundred dollars ($100.00) of the assessed Avalué of such suburban property.

(3) All real and leasehold property in said annexed territory which does not come under either the classification of urban or suburban property, as hereinbefore defined, shall be classified as rural property, and shall be subject, for the purposes of city taxation, to a rate equal to one-third of the rate to Avhich urban property may be liable, but in no year shall said rate be less than the rate of sixty-five cents on the one hundred dollars ($100.00) of the assessed value of such rural property; provided that all taxes leAded or assessed in said annexed territory prior to the levy and assessment to be made for the year 1909 shall be subject to the provision of the Act of the General Assembly of Maryland, Chapter 130, Acts of 1902, and all other laws in force relating to the levy and as sessments of taxes in said annex prior to the passage of this Act, etc.

It is very clear that the full city rate for the ye-ar 1909 could not he imposed upon the real and leasehold property in controversy, unless that property on the 13th of April, 1908, the date when the Act went into effect, was legally liable to full city taxation under the law as it existed before the Act was passed, or unless at the time of the imposition of the tax it was in the condition as to size and street improvement specified in the Act. Confessedly, this block was nor and is not now in that condition, and it is not contended that the imposition of the full rate can be sustained under that provision of the Act; but it is contended that it can be upheld upon the ground that it was liable to the full city rate under the pre-existing law.

The city relies upon the cases of Sindall v. Baltimore City, 93 Md. 534; Baltimore City v. Gail, 106 Md. 684; and Baltimore City v. Hiss, 103 Md. 620. It was contended with much earnestness that the facts disclosed by the record bring the ease within the principle announced in those cases.

The Sindall Case involved a construction of the Act of 1888, Chapter 98, the original annexation Act, and it is admitted that this property would be subject to the full rate under the principle of that case; but that Act was amended by the Act of 1902, Chapter. 180. The effect of this amendment was to limit the scope of the decision in the Sindall Case, and to retain the sixty cent rate in the annex, until the landed property there situated became urban property within the meaning of the terms employed in that Act. Joesting v. Baltimore, 97 Md. 589.

It is said in Gail’s Case, supra, that these two Acts “have been considered by this Court in a number of cases, but in none of them has the Court evinced the slightest purpose to weaken the forcé, or narrow the scope of their provisions. In all cases to which they are applicable both the city and the taxpayers of the annex will be held to a compliance with their requirements. The Act of 1888, Chapter 98, as amended by the Act of 1902, Chapter 130, prescribes the condition under which the full city rate may be imposed, and it can only be imposed upon the conditions therein expressed. It would be not only a hardship upon the taxpayer of the annex to impose that rate upon other and different conditions, but to do so would be an unwarranted exercise of the taxing power of the City.” In that case as to lot No. 1 we followed the Hiss Case, supra, and held that the Foutz Act did not apply to that lot. The reason why that Act did not apply to a situation like that with which the Court was dealing' in the Hiss Case is more fully stated by Judge Boyd in Baltimore City v. Schafer, 107 Md. 45: “The block then before the Court only contained 120,000 superficial square feet, and the streets and avenues were paved and otherwise improved like other city property. * * * When the Foutz Act was passed the block of ground before the Court in the Hiss Case was already of the size therein prescribed, and was bounded by intersecting avenues and streets which in every particular complied with the requirements of that Act. As the avenues and streets were then opened, etc., and otherwise improved, and the block was of the size contemplated by that Act, it could not have been intended that the Act of 1902 should apply to such a block because the law provided that the county rate should not be increased until the avenues, etc., shall have been opened, etc., nor until there shall be upon every block of ground so to be formed at least six dwellings. Manifestly those provisions of the Act of 1888 had reference to property through which avenues, etc., were to be afterward opened, and the provision as to six houses applied to a block so to be formed. And when the Act of 1902 explained what was meant by the terms therein mentioned it could not have intended to apply to property which had already been laid out in the manner that Act contemplated.”

The same conditions were found in the Gail Case as to lot No. 1. Here, however, neither the block nor the streets were in the condition which warranted the imposition of the full rate under the Foutz Act. The block was much in excess of the prescribed size, and one of its boundaries, Butchers lane, had never been paved prior to the Act of 1908, Chapter 286. We, therefore, agree with the learned Court below that the property in this block was not legally liable to full city taxation at the time the Act went into effect, and was not liable to that rate under any other provision of the Act.

The block not being subject to the full city rate, there was no authority in the Court to carve out certain portions of it and impose the full rate merely because the owners of certain parts of the block had paved, in the manner shown by the evidence, certain private alleys for the convenience of their lots. Such a construction would produce a condition which the Legislature could never have contemplated. It Would, as stated in the brief of the appellees, practically penalize the owners of property in the block, who had paved their back alleys, by imposing a higher rate of taxation upon them than upon others who neglected to* pave these alleys altogether, or who, in order to escape the higher rate, only paved them in spots.

The contention of the city that this can be done finds no support in Rosenthal’Case, 102 Md. 298, where the conditions were altogether different.

(2) As to the cross-appeals. It is contended that the property fronting on Pennsylvania avenue should not be classified as suburban property; first, because that avenue is a private road; and secondly, that it is a turnpike upon which tolls are charged within the city limits. In support of this position the appellees rely upon the provision of the Act of 1908, Chapter, 286, which we have quoted, which provides as a condition precedent to the classification of property as suburban that such property must front, bind, or abut on a public street, avenue, or highway which streets, avenues or highways are continuously connected by public or private streets, roads, avenues or highways, other than turnpikes upon which tolls are charged within the limits of said city. These provisions must have a rational construction, so as to effect the purpose which the Legislature had in view. Pennsylvania avenue, as we have seen, is completely paved from kerb to kerb as provided by the Act. It is only a short distance from Forth avenue, which before annexation was the northern boundary of the city, and connects with Butchers lane and Clifton street, both of which are now improved city streets, leading into the older portions of the city, and the toll-gate spoken of is more than a half a mile northwest of the property of these appellants, so that they are not required to pay toll in going to and from any part of the old' limits of the city. Under these circumstances, to hold that the Legislature intended by the language employed to forbid the classification of this property as suburban, would be to give the Act not only a very technical, but a very unreasonable construction.

We think that the obvious intention of the Legislature was to require the property owners paying taxes at the suburban or two-thirds rate should have a means of access to and from the old portions of the city over public and paved highways upon which their property abuts and over the connections designated in the Act, without the necessity of paying toll. In Patapsco Electric Company v. The Mayor and City Council of Baltimore, decided at the January Term 1909, 110 Md. 306, we held that turnpike roads established by a corporation under the authority of law are public highways, and the right to exact tolls from those using them comes from the State creating the corporation. In Ulman v. Charles Street Avenue Company, 83 Md. 144, this Court held that the owners of land abutting on that avenue, which was a turnpike road constructed by a corporation under authority of the Legislature, like the Frederick road, could not acquire title by adverse possession to any portion of the bed of the avenue, because it was a public road or highway.

It follows that we are of opinion that there was no error in the ruling of the Court upon the prayers, which will be set out in the report of the case, and the judgment therefore will be affirmed. Upon the facts appearing in the record, the clerk will tax the costs as of two appeals only.

Judgment affirmed, the costs above and below to be paid by the Mayor and City Council of Baltimore.