Sams v. Fisher

66 A. 711, 106 Md. 155, 1907 Md. LEXIS 75

Opinion

Briscoe, J.,

delivered the opinion of the Court.

This is an appeal from a decree of the Circuit Court of Baltimore city overruling a demurrer to the plaintiff’s bill of complaint, and directing an injunction to issue as prayed in the bill.

It appears from the bill, that the plaintiffs are owners of real estate, situate in that part of Baltimore City, known as the Annex, and under the terms and provisions of the Act of 1888, chap. 98, as amended by the Act of 1902, taxes had heretofore been levied for municipal purposes, upon the property at the rate of sixty cents on the hundred dollars of the assessed value including the year 1906.

The bill charges, that the sixty cent rate continued down to and including the year 1906, but that the Appeal Tax Court of Baltimore City, after notice given, was about to list or classify the property for purposes of taxation at the full city rate for 1907, which rate is $1.97^ on the one hundred dollars of its assessed value. It then charges that the Appeal Tax Court has no power or authority to classify the property, other or differently than the same is now classified on the tax rolls of the city, and that any attempt to re-classify the real estate or to change it from the tax lists on which the same is now listed for purposes of municipal taxation or to put it on any other or different tax list so that the same may be subject to a higher or greater rate of taxation is ultra vires, illegal and void.

The prayer of the bill is that the defendants be restrained ■ by injunction, first, from listing or classifying the property for municipal taxation at a higher rate than the sixty cent rate, and secondly, that any attempt to so classify or list the property for purposes of taxation or any classification heretofore made, be declared ultra vires, illegal and void, and that the Appeal Tax Court be directed to remove, erase and strike the same from the list or tax rolls of the City of Baltimore.

A demurrer was interposed to the bill, which upon hearing was overruled. The Court below, holding that the order and classification by the Appeal Tax Court of the property in question at the full city rate of taxation for the year 1907, was ultra vires, illegal and void, decreed that an injunction ’ issue as prayed by the bill. From this decree an appeal has been taken.

The question here presented is an important one, both to the city of Baltimore and to the tax-payers owning property situate in that part of Baltimore City formerly Baltimore County, which was annexed to the city under the Act of 1888, chap. 98.

The question immediately before us, is this, has the Appeal Tax Court of Baltimore City the power and authority under the provisions of the Acts of 1888 and 1902 to take property situate in the annex, and which has become subject to taxation at the full city rate, out of the sixty cent rate and to list or classify it at what is called the full city rate.

The answer to this question must be found in the construction to be placed upon sec. 19 of the Act of 1888, chap. 98, as amended by the Act of 1902, and upon certain sections of the Baltimore City 'Charter, conferring powers, on the Appeal Tax Court of Baltimore City.

By sec. 19 of the Acts of 1888, it is provided, in part, that from and after the year 1900, the property real and personal, in the annex shall be liable to taxation and assessment, in the same manner and form as similar property within the present limits of the city may be liable, provided that after the year 1900, the present Baltimore county rate of taxation shall not be increased for city purposes on any landed property within the territory until avenues, streets, or alleys shall have been opened and constructed through the same, nor until there shall be upon every block of ground so to be formed at least six dwellings or store-houses ready for occupation.

The Act of 1902, chapter 130 subsequently passed, declared what should be considered “landed property” within the terms of section 19 of the Acts of 1888.

In this case, the bill does not allege that the property, has not reached that stage of development which is required by the statute to subject it to the full city rate for the year 1907, so under the pleadings and for the purposes of this case it must be assumed that the condition of the property in controversy is such as to meet the reqüirements of the Act, and to subject it to the full city rate. And this brings us to the vital question in the case, and that is, has the Appeal Tax Court of Baltimore City, the power to list or classify such property, situate in the annex, so as it will be subject to the tax rate which the Legislature manifestly intended it should be.

There can be no doubt; it seems to us, that the action of the Appeal Tax Court in this case was entirely legal and within their delegated powers.

The Legislature has defined the class of annex property which shall be liable to the full city rate, and when it reaches the standard of development required by the statute it becomes the duty of the Appeal Tax Court to so list, classify or adjust the property upon the tax books in order that it may be liable to the proper tax.

In other words, the Legislature has said that the property in the annex should be exempt from the payment of taxes -at the full city rate for a definite period, but after the year 1900, and when it has attained a certain stage of development it should be taxed at the full city rate. When, therefore, property in the annex reaches the prescribed development, it falls within the class of property the Legislature clearly meant should pay the city rate.

The statute fixes the standard and the class of property, •and this being so, the Appeal Tax Court has the undoubted right and power, under the broad powers conferred .upon it by . the city charter, to transfer, list and classify the property on its .books, so as it will pay the correct tax. Act of 1898, chapter 123, secs. 6, 40, 147, 157, 161.

The right and power of the Appeal Tax Court 'to list and .classify, annex property has been upheld by a number of cases decided by this Court.

In. Baltimore City v. Poole & Son, 97 Md. 67, this Court .said: “When therefore the Appeal Tax Court may be informed, or have reason to believe, that any property within the territory annexed under the-Act of 1888, has been brought .within those conditions of the Annexation Act which will warrant the imposition-,of the regular city rate of taxation, they .should,.give a reasonable notice to the owner, of their purpose to' impose this rate, fixing a time and place when he can be -heard in relation; .to'.the matter. We have not been advised ■of, and have not discovered, any specific provision of law, prescribing how, and by-what authority,1 property in the annexed ¡territory, which has been, brought within the conditions of the :Act of 1888,, warranting the imposition of the city rate of taxation, is to be put into that category upon the books of the -Appeal Tax Court, but it would seem in the absence of such ¡specific provision, that that Court should have power to make ¡such classification. The correctness" of■ such classification, .■however, is a question of fact dependent -Upon proof as to the -opening of avenues, streets and alleys, through the property and the erection of the prescribed number of houses upon a -block as ptovided in the Annexation Act, and if no tribunal .has- been., ptovided for the determination of that question, it .follows that:relief against such'erroneous classification can be had .onlyi through the restraining power of a Court-of -equity; and the exercise of that power in1 cases involving the ¡question .of, the rate of taxation under the Annexation Act, was sustained-in Sindall’s case, 93 Md. 526; Goebels case, idem, 749; and Kuenzel’s case, idem, 750, where the injunction ,,was denied only because the amount involved was not sufficient to give a Court of equity jurisdiction.”

Poole’s case, was cited and approved, in the later case of Joesting v. Baltimore City, 97 Md. 597, and there is nothing in that decision in conflict with what was said in Poole’s case, supra, or in the previous cases on this subject.

To sustain the appellees contention in this case would practically defeat and annul the clearly expressed intention of the Legislature in sec. 19 of the Act of 1888, because it is conceded, that if the Appeal Tax Court has not the power to list and classify annex property for taxation when it measures up to the development required by the act, then no tribunal is clothed with the authority so to do. It would be impossible to impose more than the sixty cent rate, upon any annex property, notwithstanding the fact it may have reached the condition which renders it under the statute subject to the full city rate.

As to the question of notice, it is only necessary to say that it appears to have been given in this case. Sec. 157 of the Baltimore City Charter expressly provides, that the Appeal Tax Court may “Summon before them any person, whose account of taxable property may, in their judgment require revision and correction and examine such person on oath touching the same.”

While the provision for notice and hearing may not be contained in the act itself, yet a hearing is amply provided by the section of the charter above cited. Fowble v. Kemp 92 Md. 630.

We therefore hold that the Appeal Tax Court of Baltimore City has ample authority and power to list and classify annex property, as subject to the full city rate, when the property reaches that condition of development provided by the Acts 01 1888 and 1902 and that it has the further power to give the necessary notice and a hearing to the property holders, whose property is to be affected thereby. As the view thus taken is decisive of the case, the other questions presented on the record need not be considered by us.

For the reasons given, the decree of the Circuit Court ot Baltimore City will be reversed, and the bill of complaint dismissed. Decree reversed, bill dismissed with costs.