Leser v. Lowenstein

• Decision Date: 16 September 1916
• Docket Number: 52.
• Citation: 98 A. 712,129 Md. 244
• Parties: LESER et al. v. LOWENSTEIN et al.
• Court: Maryland Court of Appeals

98 A. 712

129 Md. 244

LESER et al. v. LOWENSTEIN et al.

No. 52.

Court of Appeals of Maryland

September 16, 1916

Appeal from Circuit Court, Frederick County; in Equity; Hammond Urner, Glenn H. Worthington, and Edward C. Peter, Judges.

Bill by David Lowenstein and another against Oscar Leser and others constituting the State Tax Commission of Maryland, Alfred W Gaver, the Supervisor of Assessment for Frederick County, and Frank M. Stevens, and others, constituting the Board of County Commissioners of Frederick County. From an order overruling the defendants' demurrer to the whole bill they appeal. Order reversed and bill dismissed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON STOCKBRIDGE, and CONSTABLE, JJ.

Edward M. Hammond and Albert C. Ritchie, both of Baltimore (D. Princeton Buckey, of Frederick, on the brief), for appellants.

Leo Weinberg, of Frederick, for appellees. BURKE, J.

The state tax commission of Maryland, acting under the powers which it claimed to have been conferred upon it by the act of 1914, chapter 841, and the act of 1916, chapter 629 determined to order a general assessment of all taxable real estate in the counties of Maryland, and it directed that assessors be appointed in all the counties of the state to assess real estate only within said counties. The board of county commissioners of Frederick county, in obedience to the orders and directions of the commission, was about to appoint the several assessors for Frederick county, and were about to instruct them to assess only real estate situated within the said county. The assessment in all the counties was to be limited to real property. It was not proposed that there should be, under the present orders and instructions of the state tax commission, an assessment of any property in the city of Baltimore. The appellees, who are residents and taxpayers of Frederick county, filed a bill in the circuit court for that county against the state tax commission of Maryland, Alfred W. Gaver, the supervisor of assessments for Frederick county, and the county commissioners of Frederick county, in which it was prayed that an injunction be issued, restraining the defendants from proceeding to make any assessment on any property in that county under the order and direction of the state tax commission. The defendants filed a demurrer to the whole bill, and this appeal was taken by all the defendants from the order of the lower court overruling the demurrer.

It is contended for the appellees that the state tax commission of Maryland has no power under the acts of assembly, under which it is proceeding to act, to make the proposed assessment, and therefore its action is ultra vires, illegal and void.

Four reasons have been urged in support of the plaintiffs' contention. Three of these are stated in the opinion of the court below, and were decided adversely to the plaintiffs. That part of the opinion which deals with these three objections is here transcribed:

"The point mainly urged by the bill of complaint in opposition to the proposed reassessment is that it will not apply equally to all portiens of the state, but that, being restricted to the counties by the terms of the statute, all property in Baltimore city will be excluded from the revaluation. It is contended that such a discrimination renders the act invalid. We can have no hesitation in overruling this contention. There is no constitutional limitation upon the power of the Legislature which requires it to include in a single statute the provisions through which it intends to secure an equal and uniform valuation of property for the purposes of taxation. There are separate enactments by which property in Baltimore city is subjected to a continuing process of revision in order that it may be assessed for state and municipal taxes according to its real value. If the Legislature was convinced that this standard has been uniformly observed in the assessment of Baltimore city property, but that a lower measure of taxable value has been applied elsewhere in the state, it was not, in our opinion, constitutionally necessary to subject the city to the expense of a superfluous reassessment merely because the county valuation may need readjustment.

The objection that the proposed reassessment is illegal because the state tax commission has given instructions, as alleged, that it shall apply only to real estate seems to us to be likewise untenable. The act of 1916, under which the reassessment has been ordered by the commission, and whose validity as a statute is assumed for the purpose of this objection, does not direct that all classes of property shall be revalued at the same time, and the Constitution does not obligate the Legislature to impose such a requirement.

The contention that no sufficient notice of the reassessment is prescribed for the benefit of the owners of the property to be valued is met by the provision of the act of 1914 for a hearing at the instance of any taxpayer, as to the assessment of his property, before the county commissioners, and on appeal before the state tax commission. It has been held by the Court of Appeals in the case of Monticello Company v. Baltimore City, 90 Md. 428, 45 A. 212, that personal notice of an assessment of property for taxation is not necessary. 'It is sufficient,' said the court, 'if notice be given by a law designating the time and place where parties may contest the justice of the valuation."'

We fully concur in the conclusions reached by the court below upon these objections, and in the principles of law upon which the conclusions rest.

But the court sustained the plaintiffs' right to an injunction upon the facts stated in the bill upon the ground that the act of 1916, chaper 629, was void, and that no general assessment could be made under the act of 1914, chapter 841. The act of 1916, chapter 629, was held to be void because it contained an unlawful delegation of power to the state tax commission to provide uniform rules for separate assessment of land and classification, and subclassifications of improvements on land and personal property. The court properly held that this was a duty and power invested solely in the Legislature under article 15 of the Declaration of Rights, as amended by the act of 1914, chapter 390, and adopted by the people in November, 1915. The sole ground upon which the act of 1915, chapter 629, was held void was that by section 249 of that act there had been an unlawful delegation of that duty and power to the state tax commission. The court further held that no general reassessment could be ordered by the state tax commission until the Legislature had provided, as was its duty to do, the uniform rules for assessment and classification enjoined by the constitutional amendment above referred to. If the legal position taken by the lower court be sound, the conclusion reached by it is correct, and there can be no general reassessment of property in the state until the Legislature shall have provided the rules contemplated by the amendment. We are unable to agree with the conclusion of the lower court upon this branch of the case. It gives an unwarranted scope and effect to the amended article of the Declaration of Rights. That amended article is here inserted:

"That the levying of taxes by the poll is grievous and oppressive and ought to be prohibited; that paupers ought not to be assessed for the support of the government; that the General Assembly shall, by uniform rules, provide for separate assessment of land and classification and subclassifications of improvements on land and personal property, as it may deem proper; and all taxes thereafter provided to be levied by the state for the support of the general state government, and by the counties and by the city of Baltimore for their respective purposes, shall be uniform as to land within the taxing district, and uniform within the class or subclass of improvements on land and personal property which the respective taxing powers may have directed to be subjected to the tax levy; yet fines, duties or taxes may properly and justly be imposed, or laid with a political view for the good government and benefit of the community."

The questions which lie at the very threshold of the discussion are: First, what effect did this amendment have upon the law of the state existing at the time it became effective secondly, what limitations and restraints did it impose upon the power of the General Assembly with respect to future legislation? As to the first question it is undoubtedly true that it abrogated or superseded article 15 of the Declaration of Rights as it appeared in the Constitution of 1867. There is no expression in the amendment to indicate that it was the intention of the people to give it a retroactive effect; and, in the absence of such an intention, the accepted rule of construction requires that it shall be given a prospective and not a retroactive effect. Some of its provisions are prohibitory and self-executing, and require no act of the Legislature to make them effective: (1) It prohibits the poll tax. (2) It declares that paupers should not be assessed for the support of the government. These provisions are found in the fifteenth article of the Declaration of Rights of 1867. (3) It declares that all taxes hereafter provided to be levied by the state for the support of the general state government, and by the counties and by the city of Baltimore for their respective purposes, shall be uniform as to land within the taxing districts, etc. This provision refers not to assessments, but to future levies for taxes. The provision of the amendment which declares "that the General Assembly shall, by uniform rules, provide for separate assessment of land and...