Eck v. State Tax Commission

• Decision Date: 23 March 1954
• Docket Number: No. 105,105
• Citation: 204 Md. 245,103 A.2d 850,48 A.L.R.2d 415
• Parties: , 48 A.L.R.2d 415 ECK et al. v. STATE TAX COMMISSION et al.
• Court: Maryland Court of Appeals

Page 245

204 Md. 245

103 A.2d 850, 48 A.L.R.2d 415

ECK et al. v. STATE TAX COMMISSION et al.

No. 105.

Court of Appeals of Maryland.

March 23, 1954.

Rehearing Denied April 30, 1954.

James P. Parker and Ward E. Boote, Washington, D. C., for appellants.

Francis D. Murnaghan, Jr., Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen. on the brief), for State Tax Comms., by Joe M. Kyle, Asst. County Atty., Rockville (David Macdonald, County Atty., Rockville, on the brief), for Appeal Tax Court, etc.

Before DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from an order of the Circuit Court for Montgomery County, granting a motion to dismiss a petition for mandamus filed May 29, 1953, against the members of the State Tax Commission of Maryland and entering a judgment of non pros. as to them; and sustaining a demurrer to the petition as against the members of the Appeal Tax Court of Montgomery County and dismissing the petition as to them. In the same order the demurrer of Wilton T. Allen, Supervisor of Assessments for Montgomery County, was overruled, with leave to answer. Believing that an appeal would be premature, no appeal was taken from that action and the matter is not now before us.

In the case of the State Tax Commission, the only question before us is one of venue. The members of the Commission, having been served with summons directed to the Sheriff of Baltimore City, appeared specially and filed a motion to dismiss on the grounds that 'as the State Tax Commission of Maryland, they maintain their office and transact their business pertaining thereto in the City of Baltimore, and, therefore, for all the matters and things which may be inquired into in judicial proceedings relating to their duties aforesaid, they are amenable to suit only in the City of Baltimore.' The petition had alleged, as to the members of the State Tax Commission, their failure to perform certain duties required of them by Article 81, Sections 230 and 239 of the 1951 Code, resulting in a lack of statewide uniformity. The prayer of the petition was that they be required to perform their statutory duties, particularly those relating to assessment procedure and standardization in the use of reports of sales. The Attorney General concedes, for present purposes, that the appeal from the judgment of non pros. is not premature. Cf. Northwestern Nat. Ins. Co. v. Samuel R. Rosoff, 195 Md. 421, 73 A.2d 461.

The appellants contend that the English Statute, 21 Jac. 1, Ch. 12, is still in force in Maryland, by virtue of Article 5 of the Declaration of Rights, and is declaratory of the common law, although not applicable to acts of omission or neglect as distinguished from positive or affirmative acts. They contend that at common law a public officer could be sued in a transitory action wherever found, and the rule has not been changed by Section 158, Article 75 of the 1951 Code, which they say is inapplicable to public officers.

The portion of the statute, 21 Jac. 1, Ch. 12 (1623), set out in 2 Alexander's British Statutes (2d ed.) 589, merely extended the expiration date of, and enlarged to include churchwardens, the earlier statute, 7 Jac. 1, Ch. 5 (1609). This statute allowed a general issue plea to be filed by certain public officers when sued in actions ex delicto and special justification to be given in evidence under that plea. 2 Alexander's British Statutes (2d ed.) 584. Other provisions of 21 Jac. 1, Ch. 12, including the provision that the action could only be brought where the tortious act was committed, were not printed by Alexander. It is stated in a note (p. 590) that 'that part of the latter act, respecting the county in which suits are to be brought and double costs, did not extend to the province. * * *'. This statement paraphrased a statement to the same effect in Kilty's Report (1811) p. 237. We regard these statements as conclusive. Cf. Day v. Day, 4 Md. 262, 271. They are consistent with the conclusion reached by the courts of other states. Gardner v. Keihl, 182 Pa. 194, 37 A. 829; Burger v. Parker, 154 Tenn. 279, 290 S.W. 22; Pearce v. Atwood, 1816, 13 Mass. 324. In any event, the portion omitted by Chancellor Kilty could not avail the appellants here, because it localized the action to the place where the tortious act was committed, and was inapplicable to failures to act in any event. The appellants invoke the statute only to argue that it effected a change in the common law, upon which they rely.

Originally, as a term of English law, 'venue' signified the neighborhood from which the jurors, as witnesses of the facts in issue, had to be drawn. 5 Holdsworth's History of English Law 117. This early concept of fact-venue was altered to one of action-venue, by means of a legal fiction, which in turn gave rise to the well-established distinction between local and transitory actions. Patterson v. Wilson, 1834, 6 Gill & J. 499, 500; Crook v. Pitcher, 61 Md. 510, 513; Gunther v. Dranbauer, 86 Md. 1, 6, 38 A. 33; Superior Construction Co. v. Elmo, Md., 102 A.2d 739. A transitory action was conceived of as one that, in the nature of things, could have happened anywhere and in such a case the rule was that a defendant could be sued wherever found. Thus, we have recognized that in cases to which the venue statutes are not applicable, as in the case of a non-resident defendant, a transitory action will lie in any court of the State. Alcarese v. Stinger, 197 Md. 236, 244, 78 A.2d 651, citing 2 Alexander's British Statutes (2d ed.) 659.

The common law rule that a transitory action would lie wherever the defendant could be reached with process, applied to public officers as well as to private individuals. See Foster v. Baldwin, 1786, 2 Mass. 569; State to Use of Hukill v. Green, 1848, 5 Harr., Del., 270; Note, Ann.Cases 1912C, 345. Indeed, it was this very fact that prompted the enactment of 21 Jac. 1, Ch. 12. The preamble of that Act contained this recital: 'Whereas the plaintiff is at liberty to lay his action which he shall bring against any justice of the peace or other officer in any foreign county at his choice, which hath proved very inconvenient unto sundry of the officers and persons aforesaid, that have been impleaded by some contentious and troublesome persons, in counties far remote from their places of habitation.' Variants of this Act have been enacted in most of the American states, although not in Maryland. In some statutes the relief was extended to acts of omission as well as commission. For a summary of the statutes, see 40 Cyc. 88.

The crucial question is whether the common law rule has been modified by the general venue statute, now appearing as Section 158, Article 75 of the 1951 Code. This section provides that 'No person shall be sued out of the county in which he resides * * * provided * * * that any person who resides in one county but carries on any regular business, or habitually engages in any avocation or employment in another county, may be sued in either county, whether before a justice of the peace or in a court of law or equity; this section not to apply to ejectment, dower, replevin, scire facias on judgment or decree, nor to heirs, devisees or terre- tenants, against whom process may be issued to another county.' The restriction as to residence was contained in Chapter 74, Acts of 1801, Sections 11 and 12, which readopted similar provisions enacted by Chapter 4, Acts of 1714 and Chapter 24, Acts of 1728. Patterson v. Wilson, supra, 6 Gill & J. at page 502; Cape Sable Company's Case, 3 Bland 606, 664. The proviso giving an alternative where the defendant carries on a regular business or habitually engages in any avocation or employment outside the county of residence, was added by Chapter 456, Acts of 1888. We find nothing in the historical background that would indicate a legislative intention to exclude public officials from the all-inclusive word 'person.' The argument of inconvenience, that prompted the enactment, would apply to a public officer with even more force than to a private individual.

In Graham v. Board of Com'rs of Harford County, 87 Md. 321, 39 A. 804, 805, an injunction proceeding was brought in Harford County against the State Comptroller and State Treasurer, neither of whom resided there and whose official place of business was in Anne Arundel County, to enjoin them from reviewing an apportionment of the tax on rolling stock of a railroad made by the State Tax Commission. They were duly summoned and, appearing solely to contest the jurisdiction, filed a demurrer to the bill. It was held that the Harford County court had no jurisdiction. Although the venue statute was not cited, it seems clear that Chief Judge McSherry had it in mind, for he spoke of the confusion and public detriment that might result if public officers could be sued 'not where they reside, or even where they transact the public business'. It was conceded there, as it is in the instant case, that the subject matter was not localized to the place where the suit was brought.

In Phillips v. City of Baltimore, 110 Md. 431, 72 A. 902, 25 L.R.A.,N.S., 711, it was held that a municipal corporation could not be sued outside of its territorial limits in a transitory action, although in the earlier case of Baltimore City v. Meredith's Ford & Jarrettsville Turnpike Co., 104 Md. 351, 65 A. 35, it had been held that this rule could not prevail in the case of a local action for trespass to land. The rule applied in the Phillips case, although it is not universal and has been subject to criticism, is supported by substantial authority. See Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404; note 93 A.L.R. 500; 17 McQuillan, Municipal Corporations (3d ed.) § 49.15. It seems to have no counterpart in the English practice. In holding that the statute dealing with the venue of suits against corporations, Section 62, Article 23, Acts of 1908, Chapter 240, Section 91, Article 23, Code of...