Mayor & City Council of Baltimore v. Perrin, s. 34-37.

• Citation: 12 A.2d 261
• Decision Date: 04 April 1940
• Docket Number: Nos. 34-37.,s. 34-37.
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. PERRIN, and three other cases.
• Court: Court of Appeals of Maryland

12 A.2d 261

MAYOR AND CITY COUNCIL OF BALTIMORE et al.
v.
PERRIN, and three other cases.

Nos. 34-37.

Court of Appeals of Maryland.

April 4, 1940.

12 A.2d 261

Dissenting Opinion of Offutt, J., April 11, 1940.

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Appeals Nos. 34-36 from Superior Court of Baltimore City; Emory H. Niles, Judge.

Appeal No. 37 from Baltimore City Court; Samuel K. Dennis, Judge.

Proceedings by Theodore M. Perrin, by the Talbott Motor Company, Incorporated, and by James Redmond and another, against the Mayor and City Council of Baltimore and another, for writs of mandamus to compel registration of motor vehicles and issuance of registration markers applied for without exaction of personal taxes demanded, and action by the Mayor and City Council of Baltimore and another against W. Lee Elgin, Commissioner of Motor Vehicles for the state of Maryland, for a declaratory judgment. From orders in the proceedings awarding writs of mandamus, the Mayor and City Council of Baltimore and another appeal, and from the declaratory judgment rendered, W. Lee Elgin, Commissioner of Motor Vehicles for the state of Maryland, appeals.

Orders in first two mandamus proceedings reversed, and order in third proceeding affirmed, and declaratory judgment affirmed.

Argued before BOND, C. J., and OFFUTT, PARKE, MITCHELL, and DELAPLAINE, JJ.

Charles C. G. Evans, City Sol., and Lawrence B. Fenneman, Deputy City Sol., both of Baltimore (Michael J. Hankin, Asst. City Sol., of Baltimore, on the brief), for Mayor and City Council of Baltimore and others.

William L. Marbury, Jr., of Baltimore (Joseph Sherbow, William L. Rawls, and G. Van Velsor Wolf, all of Baltimore, on the brief), for Theodore M. Perrin and others.

William L. Henderson, Deputy Atty. Gen. (William C. Walsh, Atty. Gen., on the brief), for W. Lee Elgin, Commissioner of Motor Vehicles.

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BOND, Chief Judge.

These four cases, argued together, present questions of constitutionality, and in the alternative, of the proper construction and application of section 183 of article 56 of the Code, as enacted by the Acts of 1939, chapter 744, requiring payment of personal taxes of residents of Baltimore City as a prerequisite to registration of motor vehicles, and the issue of registration markers for them. The first three appeals are from decisions that the statute is unconstitutional because of a deficient title, and from the consequent awards of writs of mandamus to compel registration and issue of markers applied for, without exaction of taxes demanded; and the fourth appeal is from a declaratory judgment upholding the constitutionality of the statute, determining that the taxes become due and owing from and after January 1st of the year for which they are levied, and requiring the Commissioner of Motor Vehicles to refuse registration for the year 1940 unless the taxes for that year have been previously paid.

Motor vehicles in Maryland are licensed from March 31st of one calendar year to March 31st of the next; and registration and the issue of number plates for each vehicle owned on that date must be procured on or before then, for continued operation without interruption. And the system for imposition and collection of taxes on personal property in Baltimore City provides for an assessment to owners on October 1st, and an ordinance making the levy in the following November. "The taxes levied under said ordinance in the month of November in each year shall be the taxes to be collected for the fiscal year next ensuing after the said month of November, and shall be due and may be paid to the City Collector on or after the first clay of January next ensuing. The taxes included in said levy on real estate or chattels real and on all forms of personal property * * * shall be in arrears on the first day of July next ensuing the date of their levy, and the taxes on all forms of property after they become in arrears as aforesaid shall bear interest at the rate of six per centum per annum." Baltimore City Charter, sec. 51. And see Code, Suppl. Art. 81, sec. 48. A discount of one percent. is allowed on payments made in January and for later payments in diminishing percentages, until one-quarter of one percent. is allowed for payments in May, and collection may be enforced after July 1st.

The Act of 1939, chapter 744, is intended to supersede statutes of similar requirements. By section 183 as it stood before 1939, under the Acts of 1927, chapter 707, and 1929, chapter 407, the Commissioner was directed to refuse to issue any plate or marker, certificate of registration or title, "unless all taxes due and in arrears on the motor vehicle * * * have been paid provided each motor vehicle is separately assessed apart from the assessment of any other motor vehicle or kind or class of assessable property and provided the tax to be levied on such motor vehicle is permitted except in Baltimore City to be paid separate and apart from the payment of all other taxes." It was made mandatory upon County Commissioners to provide for separate assessments and separate tax bills. Sections with similar requirements were numbered as section 184, applying to Queen Anne's County, 184A, to Anne Arundel County, 184B, to nineteen cities or towns in various parts of the state, and 184C, to cities and towns in Allegany County. In all these sections the payments required to be made as prerequisites to registration were those of taxes "due and in arrears." The statute of 1939, chapter 744, by its terms repeals and re-enacts section 183 with amendments, and repeals without re-enacting sections 184 to 184C, but enacting in the place of all of them a new section 184. The phraseology of the new section 183 is changed in only one respect, namely, taxes "due and owing" are required to be paid, instead of taxes "due and in arrears;" and the same change is made in the new section 184. The date of effectiveness of the statute is necessarily brought forward.

The first question argued, and the only one raised in the last appeal of the four, is whether the two expressions, "due and owing", and "due and in arrears," are to be given the same meaning, so that the taxes required to be paid before registration are still those which have become due and in arrears on July 1st, and an applicant for the registration in March would still be entitled to it if he had paid his taxes for the previous year, or whether "due and owing" is the equivalent of due and payable, under the charter and the code, and marks a change in the law. The judges below agreed that the adoption of

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"due and owing" in the amended sections made such a change; that taxes for the current calendar year are due and owing from and after January 1st, and by the terms of the statute must now be paid before registration for 1940. And this court agrees.

The argument to the contrary is, principally, that while, as the charter has expressly enacted, the taxes are due from and after January 1st, they cannot be considered as owing until interest begins to run, and they are enforceable under the law, that is, on July 1st. In other words, it is that the taxes are not owing until payment is required rather than optional. The word "due" alone seems to the court to import a present obligation here. "Statutes generally fix the time when taxes become due and also the time when they become delinquent." Cooley, Taxation, sec. 1246. The Supreme Court of the United States has held that the words "due and owing" in the Bankruptcy Act rendered taxes assessed prior to an adjudication entitled to a preference, although they were not collectible until after the adjudication. New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284. And see Rumley v. United States, 2 Cir., 293 F. 532; United States v. State Bank, 6 Pet. 29, 8 L.Ed. 308. And the change of expression by the Legislature, from "due and in arrears" to "due and owing", would of itself seem to indicate that a difference in effect was sought. Such would be a natural inference of the legislators, and their understanding and intention determine the meaning of their enactment. Duncan v. Graham, 155 Md. 507, 510, 142 A. 593; Porcelain Enameling Co. v. Jeffrey Co., Md., 11 A.2d 451. The taxes are owing, of course, when there exists an obligation for their payment. In a suit in assumpsit by the city for real and personal taxes, the court, in Dugan v. Mayor & City Council, 1 Gill. & J. 499, expressed the opinion that the imposition and assessment of a tax created a legal obligation to pay it, "The tax for which this suit was brought was imposed by virtue of that act, the imposition and assessment of which created the legal obligation to pay, on which the law raised an implied assumpsit." But there was no question in that case of a time allowance before enforcement; the suit was entered after the year of the taxation. And a similar holding was that of Gordon v. Mayor & City Council, 5 Gill. 231, 242. In Baltimore C. & A. Ry. Co. v. Com'rs of Wicomico County, 93 Md. 113, 129, 48 A. 853, however, the court emphasized the fact that it was the imposition and assessment which created the obligation.

An owner of property in the city on October 1st, holds it from that time subject to the exaction of a proportionate contribution to the expenses of government during the next calendar year. "The liability for taxes is an incident to property, and essential to the support of the government." Bonaparte v. State, 63 Md. 465, 471. It is a liability undetermined only in amount. The assessment and levy determine that, and by January 1st there is a liability definitely fixed, and unescapable, and payment from and after that date is prepared for and expected. Section 53 of the charter provides that the City Collector shall complete the tax bills for the coming year, "and shall have them ready for payment by the taxpayers on the first day of January next ensuing said levy." The inducements to early payment, the penalties for late payment...