Leser v. Wagner
| Decision Date | 13 May 1913 |
| Citation | 87 A. 1040,120 Md. 671 |
| Parties | LESER et al. v. WAGNER et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court of Baltimore City; Carroll T. Bond, Judge.
Suit by Philip Wagner and others against Oscar Leser and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed and bill dismissed.
S. S Field, of Baltimore, for appellants. George Washington Williams and Alfred S. Niles, both of Baltimore, for appellees.
The decision of the questions presented on this appeal involves the construction and validity of the act of 1912, chapter 688, known as "the Special Paving Tax" Act for Baltimore city. The title of the act is as follows: "An act levying a special paving tax upon property in Baltimore city specially benefited by improved paving, the proceeds of said tax to go into or augment the new paving fund provided by the act of 1906, chapter 401, and the act of 1908, chapter 202, and to be spent by the paving commission provided for by said acts, and to authorize the appeal tax court and the city collector to perform certain duties relating to said special tax." The appellants on the record are the Judges of the Appeal Tax Court and the Tax Collector of Baltimore City, and the appellees are the Safe Deposit & Trust Company of Baltimore, trustee, and Philip Wagner, Incorporated, holders and owners of landed property abutting upon certain public streets and highways of the city, as set out in the record now before us. The questions to be determined arise upon a demurrer to a bill in equity for an injunction to restrain the collection of the special paving tax, upon the ground that chapter 688 of the Acts of 1912, imposing the tax, is invalid and unconstitutional, as in conflict with the fifteenth and twenty-third articles of the Declaration of Rights of the state and also with the Constitution of the United States.
The objection to the jurisdiction of the court below to hear and determine the questions raised on the record, we think, was properly overruled. In Joesting v. Baltimore City, 97 Md. 590, 55 A. 456, it was distinctly held that a court of equity has jurisdiction to restrain the levying of taxes which, if levied, would be unlawful. The objection in this case is against the validity of the assessment fixed in the act itself, and a court of equity had full power to entertain it, under the averments of the bill filed in the case. Wannenwetch v. Baltimore, 115 Md. 452, 81 A. 3; Baltimore City v. Starr Church, 106 Md. 281, 67 A 261; Baltimore v. Gittings, 113 Md. 119, 77 A. 319.
Secondly Is the act of assembly of 1912, chapter 688, valid and constitutional? The court below held the act to be unconstitutional as to the assessments in this case, and from an order overruling the defendants' demurrer to the plaintiffs' bill, this appeal has been taken. By an act of the General Assembly passed at the January session 1906, chapter 401, amended by chapter 202 of the Acts of 1908, provision was made for the creation of a paving commission for the city of Baltimore, with powers to carry out a plan or scheme for a complete system of improved pavements of the streets of the city. A fund of $5,000,000 by means of a loan, was provided for the purpose, and this loan, as authorized by the act, was submitted and approved by the people at an election held on the 2d of May, 1911. These acts were approved by this court in the case of Bond v. Baltimore et al., 118 Md. 159, 84 A. 258. The object and purpose of the act of 1912 is to raise an additional fund of $5,000,000, to complete the plan adopted by the city for improved pavements throughout the city, and this is to be done by a special paving tax upon property in the city specially benefited by improved paving, as provided by the act.
Section 2 of the act provides that on the first day of every month the city collector shall account for and pay over to the comptroller, to be by him deposited with the city register and to be placed to the credit of the new paving fund provided in the acts of 1906 (chapter 401) and 1908 (chapter 202), and to be exclusively applicable to the cost of the work authorized by the acts or by any amendment or amendments thereof.
The first section of the act provides "that there is hereby levied and imposed upon property in the city of Baltimore specially benefited by improved paving (said property being hereinbelow specified), a special paving tax of the amount hereinbelow specified, said tax to continue as to each property for ten years from the time it attaches thereto, and the entire proceeds thereof to be used for improved paving in Baltimore city, as hereinbelow provided."
The second section of the act defines the property specially benefited by improved paving, and upon which the tax is laid as follows: "All landed property in Baltimore city adjoining or abutting upon any public highway which has been or shall hereafter be paved with improved paving without special assessment of any part of the cost upon the abutting or adjoining property owners by the city of Baltimore or the state roads commission, or other public commission or agency, or by said city, and such commission or agency, or by either or both, and any railroad or railway company occupying with tracks a portion of such highway, is hereby declared to be specially benefited by such improved paving to an extent greater than the entire amount of the special tax hereby levied thereon."
The property made subject to the special paving tax is divided by the act into three classes, designated as Classes A, B, and C.
The amount of this special tax levied by the act (section 4), on all property embraced in Class A, shall be 15 cents per year per front foot or lineal foot, adjoining or abutting upon the public highway. On all property in Class B 10 cents per year per front foot, and in Class C 5 cents per year per front foot.
The act also provides for a proper classification and listing of the property under the special tax, and the appeal tax court shall give a prior notice to the owner of the property,
The act defines improved paving in section 3 as follows:
We have thus stated the material provisions of the act somewhat at length, because we are satisfied that when these provisions are considered in connection with its object and purpose, the objections here urged against the act will be found to be without merit and force.
The amount of the tax, it will be seen, is fixed by the act itself, and it is well settled that where the Legislature fixes the amount of the tax, no notice is necessary; and, in the absence of clear evidence that the tax is arbitrary or oppressive, the legislative decision is conclusive on the courts. Hager v. Dist., 111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 569; Faust v. Bldg. Asso., 84 Md. 186, 35 A. 890; Parsons v. District, 170 U.S. 52, 18 S.Ct. 521, 42 L.Ed. 943; Hyattsville v. Smith, 105 Md. 323, 66 A. 44.
The act of 1912, however, provides that a notice shall be given to the owner of the property, to be heard in reference to the liability of the property for the tax and its proper classification. All the provisions of existing laws relating to notice and to appeals from the actions of the appeal tax court are made applicable to the notice to be given and to the right of appeal from their actions under the act. The act, we think, provides for ample notice. Spencer v Merchant, 125 U.S. 345, 8 S.Ct. 921, 31 L.Ed. 763; Baltimore v. Ulman,...
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