Gittings v. City of Baltimore

• Decision Date: 18 June 1902
• Citation: 52 A. 937,95 Md. 419
• Parties: GITTINGS v. MAYOR, ETC., OF CITY OF BALTIMORE.
• Court: Maryland Court of Appeals

52 A. 937

95 Md. 419

GITTINGS v. MAYOR, ETC., OF CITY OF BALTIMORE.

Court of Appeals of Maryland

June 18, 1902

Appeal from circuit court No. 2 of Baltimore city; Pere L. Wickes Judge.

Suit by John S. Gittings against the mayor and city council of city of Baltimore. Bill dismissed. Plaintiff appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE, SCHMUCKER, and JONES, JJ.

Julian I. Alexander, for appellant.

Wm Pinkney Whyte and Olin Bryan, for appellee.

PEARCE J.

This is an appeal from a decree of circuit court No. 2 of Baltimore city dismissing a bill filed to restrain the collection of certain taxes for the year 1901, alleged to be demanded without any legal assessment of the property against which said taxes are charged. This property consists of a tract of land situated in that part of the city known as the "Belt," which was annexed to the city by the act of 1888, c. 98, under the terms of which the rate of taxation for city purposes upon all landed property so annexed could at no time, until the year 1900, exceed the tax rate for Baltimore county for the year 1887, which was 60 cents in the $100; nor could there be until the year 1900, for the purpose of city taxation, any increase in the assessment of such property as then assessed. In Sindall's Case, 93 Md. 526, 49 A. 645, this provision of the annexation act was construed, and it was held that such property was not liable either to any increased assessment, or to taxation at the current city rate, until after the year 1900. That case was decided June 12, 1901. Before that time, however, in October, 1900, this plaintiff had filed a bill in equity against this defendant, alleging his ownership of these lands, and that they were, prior to the year 1900, assessed at $82,510, but that defendant pretended another assessment of said property had been made at the value of $2l7,650, on which assessment taxes were demanded from plaintiff at the rate of 60 cents per $100, amounting to $1,306.56, which he refused to pay, but tendered $495.36, being the true amount of taxes at said rate upon the former assessment, which the tax collector refused to receive, and plaintiff prayed an injunction to restrain the levying and collection of taxes upon said pretended assessment, and the refusal to receive the amount of taxes so tendered. Upon this bill a decree pro confesso was obtained, defendant having neglected to answer in time, and in January, 1901, a final decree was passed granting the injunction prayed. In April, 1901, a petition for a rehearing was filed; but in October, 1901, this petition was dismissed, the decision in the Sindall Case, in the meantime, having set at rest the question then at issue between plaintiff and defendant. In November, 1901, the present bill was filed, reciting at length the proceedings in the former case, and asserting that it was conclusively determined by the decree therein that the said pretended assessment of said land was null and void, and that defendant could not under existing laws levy any taxes for city purposes on said lands upon any other than the previous assessment of $82,510, nor at a higher rate than 60 cents on the $100. The bill further alleged that defendant had delivered plaintiff a tax bill for 1901 on said lands for city purposes, upon said assessment of $217,650, amounting to $1,306.56, which he had refused to pay, but had tendered the proper sum of $495.36, which the tax collector refused to receive, and was about to distrain for the amount unlawfully demanded. The bill further alleged that no new legislation had authorized any new or other mode of assessment of said lands than that which existed when the former bill was filed and the former decree was passed, "and that defendant has not in fact made, nor pretended to make, any new or other assessment of said property than that mentioned in the former bill," and the plaintiff prayed an injunction as in the former bill. There was a decree pro confesso which was subsequently stricken out, and a demurrer was filed, the ground of demurrer being that under section 170 of the city charter (Laws 1898, c. 123) the plaintiff had an ample remedy in a court of law which has sole and exclusive jurisdiction for the purpose of review of said assessment and valuation, and that, having failed to avail himself of that remedy, he must abide by the action of the appeal tax court in reference to said assessment. The circuit court No. 2 sustained the demurrer and dismissed the bill.

Section 170 of the city charter, which the defendant relies on to sustain its demurrer, provides that "any person aggrieved because of any assessment made by the appeal tax court, or because of its failure to reduce or abate any existing assessment, may by petition appeal to the Baltimore city court to review the assessment. *** The petition in such appeal shall forth that the assessment is illegal, specifying the grounds of the alleged illegality, or is erroneous by reason of overvaluation, or is unequal, *** and that the petitioner is, or will be, injured by such alleged illegality, unequal or erroneous assessment. *** All such appeals shall be taken within thirty days after an assessment has been made as aforesaid, or after refusal to reduce or abate an existing assessment, and shall be heard not less than five, nor more than thirty days, after the expiration of the thirty days limit for taking appeals as aforesaid. *** The person 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 ascertain or decide on the proper assessment," which decision or ascertainment is required to be certified by the Baltimore city court to the judges of the appeal tax court, and is made by said section 170 "final and conclusive in every respect, unless an appeal be taken to the court of appeals." In Stoddert v. Ward, 31 Md. 563, 100 Am.Dec. 83, where an injunction was sought to restrain the collection of taxes, this court said: "In the execution of the revenue laws, the constitution and the acts of assembly have provided for the selection of certain public officers charged with the duty of assessing and collecting the public taxes; if any errors, omissions, or irregularities occur in the discharge of their duties, such errors may be corrected by the means which the tax laws provide;" and the injunction was accordingly refused. In Commissioners of Alleghany Co. v. Union Min. Co., 61 Md. 545, the mining company claimed that a portion of the tax levied upon its property was illegal and void, and asked that the county commissioners and the tax collector be...