Joesting v. City of Baltimore
| Decision Date | 01 July 1903 |
| Citation | 55 A. 456,97 Md. 589 |
| Parties | JOESTING v. MAYOR, ETC., OF BALTIMORE. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court No. 2 of Baltimore City; John J. Dobler Judge.
Bill for an injunction to restrain levy of unlawful taxes by Henry Joesting against the mayor and city council of Baltimore. From a decree dismissing the bill, plaintiff appeals. Reversed.
Argued before McSHERRY, C.J., and FOWLER, BOYD, PAGE, PEARCE, and SCHMUCKER, JJ.
Isidor Rayner and Isaac Lobe Straus, for appellant.
Olin Bryan and Charles W. Field, for appellee.
There are two questions in this case. The first is this: Is the act of assembly of 1902 (chapter 130, p. 199) constitutional? And the second is this: Has a court of equity jurisdiction to restrain the levying of taxes which, if levied, would be unlawful? These two questions will be disposed of in the order in which they have just been stated.
First. By an act passed at the January session of 1888, and known as chapter 98, p. 113, provision was made for annexing to the city of Baltimore part of the territory then within the limits of Baltimore county. By that act the voters residing in the districts intended to be annexed to the city were given an opportunity to decide by ballot whether those districts should be brought within the city's limits. The majority of the voters in two of the districts cast their votes in favor of annexation. In the other the majority was against annexation. By section 19 of the act of 1888 (Acts 1888, p. 127, c. 98) it is enacted in substance that until after the year 1900 the property situated in the annexed districts should remain assessed at the valuation fixed by the Baltimore county authorities, and that the owners of that property should only be charged at the rate of 60 cents on the $100, that being the Baltimore county rate which was current when the act of 1888 went into effect. The same section further provided that from and after the year 1900 "the property, real and personal, in the said territory so annexed, shall be liable to taxation and assessment therefor, in the same manner and form as similar property within the present limits of the said city may be liable provided, however, that after the year 1900, the present county rate of taxation shall not be increased for city purposes on any landed property within the said 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 storehouses ready for occupation."
The validity of this statute was assailed on various grounds, but in the case of Daly v. Morgan, 69 Md. 460, 16 A 287, 1 L.R.A. 757, it was fully and finally upheld. In the year 1900 the appeal tax court of the city of Baltimore proceeded to revalue the property in the annexed districts, or the "belt," as those districts have been called, and the city levied on the owners for the year 1900 the then current city tax rate, instead of the 60-cent rate contemplated by the statute. That proceeding provoked litigation. Sundry property holders filed bills in equity seeking by injunction to restrain the enforcement of those levies, and the cases were disposed of by this court in 1901. Sindall v. City of Baltimore, 93 Md. 535, 49 A. 645. At the next session of the General Assembly an act was passed that defined the terms used in the original act of 1888 (chapter 98, p. 113), and that is the statute which is now attacked as unconstitutional and void. By this last-mentioned act "landed property" was defined to mean Acts 1902, p. 199, c. 130. The mayor and city council, treating the act of 1902 as invalid, proceeded to levy against the appellant, and others living in the belt and similarly situated, the current city rate for 1903, whereupon the pending bill was filed to restrain the levy and collection of that tax. The effect of the act of 1902 is to retain the 60 cent rate in the belt until the landed property there situated becomes urban property, within the meaning of the terms employed in that act. The sole ground upon which its validity is questioned is this: that it impairs the obligation of the contract supposed to be involved in the act of 1888. If, however, the act of 1888 is not a contract, the contention of the city must fail, and a like result must follow, even upon the assumption that the act of 1888 constitutes a contract, if the city was not a party to that contract.
We have no difficulty, in holding that the act of 1888 neither evidences nor contains the constituents of a contract. The purpose of the act was to enlarge the municipal limits of the city of Baltimore with the consent of a majority of the voters residing within the territory proposed to be annexed. In carrying into effect that purpose provision was made, amongst other details, with respect to the rate of taxation to be levied on the inhabitants brought within the city; but that provision was merely the exercise by the General Assembly of its undoubted authority over the subject of taxation. As was said in Daly v. Morgan, supra, the act of 1888 created separate taxing districts, and fixed within their outlines a definite rate for a prescribed period of years. It therefore conferred upon the city of Baltimore a power to tax individuals who, prior to its passage, had not been within the taxing jurisdiction of the mayor and city council. But the grant of that power to the municipality was not the grant of private property, nor the creation of a vested right; much less was it a contract. Williamson v. New Jersey, 130 U.S. 189, 9 Sup.Ct. 453, 32 L.Ed. 915; New Orleans v. New Orleans Waterworks, 142 U.S. 79, 12 Sup.Ct. 142, 35 L.Ed. 943, and cases cited in the court's opinion. The power to tax conferred by the state upon one of its own municipalities is, in its last analysis, the mere transfer by the state to its own creature of authority to exercise part of the state's attributes of sovereignty, to be used solely for the public good. When exerted in this way, it is the power of the state that acts through the agency of the municipality. M.C.C. v. State, etc., 15 Md. 376, 74 Am.Dec. 572. It is a governmental function, which the state may grant or withhold, and which, when it has been given, may be withdrawn, so far, at least, as the municipality itself is concerned.
Laying out of view the rights of third parties, and dealing with the question solely as one between the municipality and the state which created it, it would be singular and anomalous if the grant by the state to the municipality of a power to tax were beyond the subsequent control of the sovereign, although the very existence of the creature could be terminated at any moment by the same authority that formed it. If the life or duration of the municipality depends on the will and the pleasure of the state (as it does), and therefore is in no sense founded on contract, it is difficult to understand how an attribute of the sovereign, exercised through its own agent, can, as between the sovereign and the agent alone, be treated as a contract, protected by the organic law against impairment, modification, or total repeal. It must be borne in mind that this controversy is between the individual and the municipality, and that the municipality is insisting that the state, by the act of 1902, has impaired the obligation of a contract between the state and the city; whilst the individual is complaining because the city refuses to obey the enactment of the state. The authority given to the city to tax the inhabitants in the belt was a governmental power that was conferred, and, like every other similar power conferred upon a municipality, was subject to the control of the General Assembly. The Maryland cases fully sustain this proposition. State, use Wash. Co., v. B.O.R.R. Co., 12 Gill & J. 437, and other cases referred to in Thompson's Md. Citations, 589-590. The fact that the majority of the voters in two of the districts voted in favor of...
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