City of Baltimore v. Hurlock

• Citation: 78 A. 558,113 Md. 674
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. HURLOCK.
• Decision Date: 16 November 1910
• Court: Court of Appeals of Maryland

78 A. 558

113 Md. 674

MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. HURLOCK.

Court of Appeals of Maryland

November 16, 1910

Appeal from Baltimore City Court; Henry Stockbridge, Judge.

Petition by Clarence H. Hurlock, executor, against the Mayor and City Council of the City of Baltimore and others for a review of a tax assessment. From a judgment of the Baltimore city court for plaintiff, defendants appeal. Reversed, and new trial awarded.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE THOMAS, PATTISON, and URNER, JJ.

German H. H. Emory, for appellants.

George Washington Williams, Jr., for appellee.

PEARCE J.

This appeal is from rulings made by the Baltimore city court in an appeal to that court from an assessment made by the appeal tax court of Baltimore city, the only ground of complaint urged at the hearing being that the property assessed was overvalued and the assessment unequal as compared with property of the same kind in the same neighborhood. The property assessed was a house and lot No. 2131 North Calvert street, assessed for the purpose of taxation for the year 1910 as follows:

Lot	$1,947
Improvements	3,500
	------

Section 170 of the charter of Baltimore city, under which this appeal was taken, was amended by chapter 167 of the acts of 1908, the amended part of said section being transcribed as follows: "The person or the city appealing to the said Baltimore city court shall have a trial before the court without the intervention of a jury, and the court sitting without a jury, shall hear the case de novo, and shall ascertain and decide on the proper assessment, or classification of the property for the year involved in the appeal; and neither the action, nor the record of the proceedings of the judges of the appeal tax court in the premises shall be held to be, or declared void for any reason whatever; provided due notice of the proceedings shall have been given to the parties entitled, by said judges of the appeal tax court; and the said Baltimore city court shall assess anew, or classify anew, as the case may be, the property forming the subject of appeal; provided however that in the absence of any affirmative evidence to the contrary, the assessment or classification appealed from shall be affirmed." The underscored lines in this transcript embrace every material amendment of this section, and the purpose of these amendments becomes obvious when reference is had to certain decisions of this court affecting that section as it stood before these amendments. It was held in Baltimore City v. Poole, 97 Md. 72, 54 A. 681, that relief against erroneous classification could only be had in a court of equity, and in Consolidated Gas Co. v. Baltimore City, 101 Md. 559, 61 A. 532, 1 L. R. A. (N. S.) 263, 109 Am. St. Rep. 584, an assessment by the appeal tax court had been declared void as no assessment at all; but under that section, as now amended, erroneous classification may be corrected on appeal, and no assessment can be declared void, but the city court must assess the property in question anew. When this appeal came on to be heard, the defendants, before any testimony was taken, moved the court to rule that the duty of opening the cause rested upon the petitioner, but the court overruled this motion, and held that the duty of opening the cause rested upon the defendants, who took the first exception to this ruling.

In 27 Amer. & Eng. Enc. of Law (2d Ed.) p. 728, it is said: "In accordance with the universal presumption in favor of the regularity and validity of official acts, tax assessments, made in the line of official duty, are presumably correct, and the burden of showing the contrary is upon the person claiming to be aggrieved. Accordingly, it will be presumed that proper notice was given; that a correct method of valuation was used, and that a fair valuation was placed on the property." In 1 Cooley on Taxation (3d Ed.) p. 447, note 1, the author says: "Tax assessments made in the line of official duty are entitled to the usual presumption of correctness which attends the acts of public officers;" and there are abundant decisions holding that the valuation placed upon property by official assessors is presumed to be fair. Among these are State v. W. U. Tel. Co., 165 Mo. 502, 65 S.W. 775; Williams v. Bettle, 50 N. J. Law, 132, 11 A. 17, and Chicago Union Traction Co. v. Board of Equalization (C. C.) 112 F. 607, in which Judge Grosscup said: "We are bound to believe that the board will exercise its function as contemplated by law, and will avoid over-valuation." Appeals from assessments for taxation find their closest analogy in condemnation proceedings, and in 15th Enc. Pl. & Pr. 193, it is said: "The courts in the majority of states, following the rule that, in cases where the damages are not fixed in amount or ascertainable by simple calculation, the party seeking to recover them is entitled to open and close the evidence and argument, in condemnation proceedings have awarded the right to open and close to the landowner." The same doctrine is held in 1 Elliott on Evidence, §§ 133, 180, 181. There is not complete uniformity in the cases in this respect, but we think the weight of authority is as stated in the Encyclopedia of Pleading and Practice, above, and the rule stated was upheld in Conn. River R. R. Co. v. Clapp, 1 Cush. (Mass.) 559, and in Winnisimmet v. Grueby, 111 Mass. 543. In 16 Cyc. 931, it is said: "The rule regulating the burden of proof in special judicial proceedings is the same that governs where an issue has been formulated by the pleadings. He who asks affirmative relief, one, for example, who appeals from an order, *** has the burden of convincing the court that action should be taken in his favor." The right to open and close accompanies the burden of proof, unless otherwise clearly provided by law. Hence it follows, as stated in 15 Enc. Pl. & Pr. 183, 184, "The test is that the right belongs to the party against whom judgment would be rendered if no evidence were introduced on either side." In Consol. Gas Co. v. Balt., 101 Md. 559, 61 A. 539, 1 L. R. A. (N. S.) 263, 109 Am. St. Rep. 584, this court expressly declared that "presumptions are in favor of the correctness of assessments"; citing 27 Amer. & Eng. Enc. L. (2d Ed.) 728, supra, though it held there was error in that case in granting a prayer that the burden of proof was on the gas company to show by a preponderance of testimony that the assessment was erroneous; but this was only because the court had held there was in that case no valid assessment, and that there must be a valid assessment before there can be a presumption in favor of its accuracy. It will be seen that the amended section under which this case arises embodies and emphasises in its closing proviso the presumption of accuracy, of assessments thus brought under review, which is declared in 101 Md. 541, 61 A. 532, 1 L. R. A. (N. S.) 263, 109 Am. St. Rep. 584, supra, to exist.

We must assume that the ruling we are now considering was based upon the requirement to hear the case de novo, and in analogy to the practice in appeals from justices of the peace, which are required to be heard de novo, and in which the plaintiff below has the burden of proof, and must open the cause, whether he be appellant or appellee; and the argument of the appellee in the case before us proceeds upon the theory that the same rule and reason necessarily applies here. But that view ignores the proviso which requires the affirmance of the assessment in the absence of any affirmative evidence to the contrary, and it thereby gives to the words "de novo" an effect and scope clearly denied to them by that proviso. Construing that section as a whole, the full intended effect is given to those words, by holding that the assessment is to be "de novo," or "anew," in order to avoid a total failure of any assessment, such as occurred in 101 Md., supra, and would occur under the original section 170, whenever it became necessary to set aside an assessment appealed from. Whatever conclusion might be drawn from the words "de novo," if the burden of proof was not fixed by the proviso embodied in this section, effect must be given to that proviso, which thus becomes decisive of this question. In 15 Enc. Pl. & Pr. 198, it is said that where on appeal the trial is de novo the same rule applies as if the cause had been instituted in the appellate court, and it was so held in Ind. R. R. Co. v. Cook, 102 Ind. 133, 26 N.E. 203.

If, in the case before us, even under the ruling appealed from, the city had offered no evidence, and the petitioner had offered none, the court would have been compelled, under the operation of the proviso, to affirm the assessment, thus demonstrating the correctness of the test given above in the Encyclopedia of Pleading and Practice as to the right to open and close in this case. We have been referred in a supplemental brief, filed by the appellee since the argument of this case, to the case of Mayor & City Council of Baltimore v. Smith & Schwartz Brick Company, 80 Md. 458 31 A. 423, as establishing a different rule. That was an appeal to the Baltimore city court from an assessment of benefits in an award of the commissioners for opening streets, and it was held that the burden of proof in such case "was on the city to establish the benefits this property was to be charged with." But the distinction in principle between the two cases is obvious and fundamental. All property has some value for assessment for taxation, and all property is required to be assessed for that purpose by official assessors, whose valuation is presumed to be fair, until shown to be unfair. There is no question in those cases as to the...