Board of Com'rs of Anne Arundel County v. Buch

• Decision Date: 23 April 1948
• Docket Number: 142.
• Citation: 58 A.2d 672,190 Md. 394
• Parties: BOARD OF COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY v. BUCH.
• Court: Maryland Court of Appeals

58 A.2d 672

190 Md. 394

BOARD OF COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY v. BUCH.

No. 142.

Court of Appeals of Maryland

April 23, 1948

Appeal from Circuit Court for Anne Arundel County; James Clark Judge.

Proceeding by Justin G. Buch for a writ of mandamus requiring the Board of County Commissioners of Anne Arundel County to grant petitioner a hearing as to alleged undervalue assessments of realty owned by others than petitioner. From an order sustaining petitioner's demurrer to respondent's answer and granting the writ, respondent appeals.

Affirmed.

Benjamin Michaelson, of Annapolis, for appellants.

H Vernon Eney and Philemon B. Coulter, both of Baltimore (Armstrong, Machen & Eney, of Baltimore, on the brief), for appellee.

Hall Hammond, Atty. Gen. (Richard W. Case, Asst. Atty. Gen., on the brief), amicus curiae by State Tax Commission.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

HENDERSON Judge.

Justin G. Buch, a taxpayer and resident of Anne Arundel County, and president of the Citizens Protective Association of Anne Arundel County, Incorporated, filed a petition with the County Commissioners on July 21, 1947, demanding a hearing by that body in regard to 'the inequitable, unjust and undervalue assessments' of 47 parcels of real estate and improvements in Anne Arundel County, particularly described in the petition, owned by taxpayers other than the petitioner. On August 14, 1947, the Commissioners wrote counsel for the petitioner: 'In view of the fact that all property in Anne Arundel County has been assessed or is now being assessed as provided by statute, under the supervision of the State Tax Commission, the petition for a hearing is out of order and cannot be used as a basis for a hearing on assessments.' On September 15, Buch filed a petition in the Circuit Court for Anne Arundel County for a writ of mandamus requiring the Board to grant him a hearing. The Commissioners filed a demurrer and answer; the petitioner demurred to the answer. The appeal is from an order of the Court sustaining the petitioner's demurrer and directing the writ to issue as prayed. The State Tax Commission did not intervene in the proceeding below, as authorized by Section 175(13) of Art. 81 of the Code, but a brief was filed here on its behalf by the Attorney General as amicus curiae.

The appellant contends (1) that the granting of a hearing is wholly discretionary with the County Commissioners, and not subject to judicial review, and (2) that in any event the remedy for a refusal of a hearing is by way of appeal to the State Tax Commission, and not by resort to mandamus. The brief filed by the Attorney General attacks the order on the broader ground that under the statute a taxpayer has no right to a hearing except in relation to the assessment of his own property. We shall discuss the latter contention first.

Sections 190 and 191 of Art. 81 of the Code provide:

'190. Any taxpayer, or city, or the Attorney General on behalf of the State, may demand a hearing before the County Commissioners or the Appeal Tax Court of Baltimore City or the assessing authorities of any other city as to the assessment of any property or any unit of tax value, or as to the increase or reduction or abatement of any such assessment, or as to the classification thereof, for the next ensuing year; and no formal proceedings shall be required. In case of any such hearing any party in interest may file data and information bearing thereon, without regard to the technical rules of evidence. Any such person or corporation so demanding a hearing may also in writing file information with the County Commissioners or the Appeal Tax Court of his address or the address of the agent or attorney to which any notices pertaining to said matter shall be sent, provided such agent or attorney, representing such person or corporation has first filed with such County Commissioners or the Appeal Tax Court of Baltimore City or the assessing authorities of any other city his right or power of attorney to represent such person or corporation. If any such address shall be filed it shall be the duty of the County Commissioners or the Appeal Tax Court to cause a statement of the order or action or refusal to act of such County Commissioners or Appeal Tax Court to be posted in the United States Mail, postage prepaid, to such address, and no action or refusal to act shall be operative as against the person giving such address until such statement shall be so mailed. No demand for a hearing shall be granted under this section unless filed in the counties before the date of finality for the taxable year in question or in Baltimore City before July first preceding the taxable year in question.'

'191. Any taxpayer, any city, or the Attorney General on behalf of the State, or a supervisor of assessments as provided in Section 177 of this Article, claiming to be aggrieved because of any assessments or classification, or because of any increase, reduction, abatement, modification, change or alteration or failure or refusal to increase, reduce, abate, modify or change any assessment, or because of any classification or change in classification, or refusal or failure to make a change, by the County Commissioners, the Appeal Tax Court of Baltimore City or the assessing authorities of any other city, may by petition appeal to the State Tax Commission therefrom, and the State Tax Commission shall hear and determine all such appeals within sixty days from the entry thereof with said Commission. * * * no appeal on behalf of a taxpayer shall be allowed under this section from a failure or refusal to abate, reduce or reclassify an existing assessment unless application in writing for such action shall have been filed by the appellant with the assessing authority appealed from within the time limited for the filing of a demand for a hearing by Section 190 of this Article.

Upon its face, the language of Section 190 that 'any taxpayer * * * may demand a hearing before the County Commissioners * * * as to the assessment of any property or any unit of tax value, or as to the increase or reduction or abatement of any such assessment', would appear to be clear and unambiguous, and so sweeping as to forbid its limitation, by construction, to the assessment of property owned by the particular taxpayer demanding the hearing. It may also be observed that the express authorization of a hearing in the event of a reduction or abatement of assessment would seldom be availed of by a taxpayer so fortunate to obtain that particular relief.

The Attorney General attempts to meet these difficulties by arguing that the provision for a hearing set out in Section 190 of the present Code was merely a paraphrase of Section 238 of Chapter 841 of the Acts of 1914, creating the State Tax Commission, codified along with other sections by Chapter 226 of the Acts of 1929. But we think that Section 238 was fully as broad as Section 190, in according to any taxpayer a right to 'demand a hearing * * * as to the assessment of any property,' although it did not contain the clause referring to increase, reduction or abatement of assessments. The second paragraph of section 238 provided that 'any taxpayer * * * having been assessed by the order of the County Commissioners * * * after a hearing as hereinbefore provided, may appeal to the State Tax Commission'. Assuming that this paragraph limited the right of appeal to a taxpayer who had been assessed, it does not follow that the right to a hearing was so limited. The appeal allowed in the present section 191 so 'any taxpayer * * * claiming to be aggrieved', is not in terms so restricted.

The concept that a taxpayer may have an interest in, and a legal right to complain of, the underassessment or non-assessment of property owned by other taxpayers, is not foreign to our jurisprudence. In Schley v. Lee, 1907, 106 Md. 309, 403, 67 A. 252, 257, a taxpayer, on behalf of himself and others, filed a suit in Equity to enjoin the State Tax Commissioner from making certain deductions in assessing the shares of bank stock, which would result in their underassessment or non-assessment. The Court said: 'We have no doubt of the right of the appellee to resort to equity for relief by injunction in the present case. It is apparent that, if the tax commissioner be permitted to make the proposed assessment in accordance with his avowed purpose, serious loss and injury would result to the taxpayers of Montgomery County through the consequent reduction of the basis of taxation for county purposes. From this unlawful assessment, if it should be made, the taxpayer would have no appeal.' In Baltimore Steam Packet Co. v. Baltimore, 1931, 161 Md. 9, 22, 155 A. 158, 164, the appellant complained that it was taxed on certain vessel property, while its competitors were exempt under what was claimed to be an invalid statute. The Court said: 'If this be true, its remedy lies, not in attempting to be relieved of the tax itself, but in restraining the proper taxing officials from allowing the...