Miller v. Wicomico County Com'rs

• Decision Date: 05 March 1908
• Citation: 69 A. 118,107 Md. 438
• Parties: MILLER v. WICOMICO COUNTY COM'RS.
• Court: Maryland Court of Appeals

69 A. 118

107 Md. 438

MILLER v. WICOMICO COUNTY COM'RS.

Court of Appeals of Maryland

March 5, 1908

Appeal from Circuit Court, Wicomico County; Chas. F. Holland, Judge.

Suit by the county commissioners of Wicomico county against Walter B Miller. From a judgment for plaintiffs, defendant appeals. Affirmed.

Robert P. Graham, for appellant.

Joseph L. Bailey, for appellees.

BRISCOE J.

This is a suit at law, brought by the appellees, the county commissioners of Wicomico county against the appellant, a resident of Wicomico county, for the purpose of recovering 8 per cent. upon the gross amount of interest covenanted to be paid in certain mortgages of record in that county, and held by the appellant upon real estate situate in Wicomico county. The act under and by which the tax in this case is sought to be recovered is chapter 794, p. 1320, Acts 1906, entitled "An act to repeal section 183, of article 81, Code of Public General Laws of Maryland, 1904, title 'Revenue and Taxes,' subtitle 'Tax on Mortgages,' and to re-enact the same with amendments." The act provides that all mortgagees or assignees holding mortgages of record in Worcester, Wicomico (and certain other counties named in the act), shall annually pay a tax of 8 per centum upon the gross amount of interest covenanted to be paid each year to said mortgagee or his assigns by the mortgagor, to be collected by the proper authorities as other taxes for county purposes in said several above specially enumerated counties are collected. All of such taxes collected in said several counties shall be applied exclusively therein to county purposes, free, clear, and discharged from any claim of the state or its fiscal officers, and the tax hereby levied shall in each year be due and payable in that one of the above-named counties in which the mortgage is recorded, and if any mortgage is recorded in two or more of said above-named counties, the tax hereby levied shall each year be paid to the county where the greater portion of the property covered by the mortgage is located; and it was specifically provided that the act should only apply to the counties mentioned therein, and not to Baltimore City. The declaration contains nine counts. Seven of them are the usual counts in assumpsit. The eighth and ninth are special counts and are as follows: "(8) And for taxes, with due interest thereon, upon the interest covenanted to be paid each year to the defendant upon mortgages of record in Wicomico county held by the defendant. (9) And for taxes, with due interest thereon, upon the interest covenanted, to be paid each year to the defendant upon mortgages of record in Wicomico county while held by the defendant." The defendant filed the usual pleas of "never indebted" and "never promised," as alleged, to the first seven counts, and demurred to the eighth and ninth counts of the declaration. The demurrer to these counts was overruled, and thereupon the defendant, for pleas to these counts, interposed the same pleas as to the other counts of the declaration. The case was submitted to the court upon an agreed statement of facts, and, from a judgment in favor of the plaintiffs, the defendant has appealed.

The principal question presented on the appeal is the constitutionality of Acts 1906, p. 1320, c. 794, imposing the tax in question, and this is clearly raised, both by the ruling of the court upon the defendant's demurrer to the plaintiffs' declaration and to its action in rejecting the defendant's prayers offered at the close of the case. The objection to the act in question is that it violates article 15 of the Bill of Rights, which provides for equality of taxation; and, secondly, that it is in contravention with section 33 of article 3 of the Constitution, which declares that the General Assembly shall pass no special law for any case for which provision has been made by an existing general law. Now, it will be seen by section 51 of article 3 of the Constitution, amended by Acts 1890, p. 458, c. 426 "that the General Assembly may by law provide for the taxation of mortgages upon property in this state and the debts secured thereby in the county or city where such property is situated." By Acts 1896, p. 160, c. 120, § 146a, the Legislature imposed an annual tax of 8 per centum upon the gross amount of interest covenanted to be paid each year to the mortgagee or his assigns by the mortgagor upon all mortgagees or assignees holding mortgages of record in this state, to be collected as other taxes for state, county, and city purposes. This act was before this court in the cases of Faust v. Building Association, 84 Md. 190, 35 A. 890, and in Allen v. Nat. Bank of Camden, 92 Md. 509, 48 A. 78, 52 L. R. A. 760, 84 Am. St. Rep. 517, where it is held that the tax imposed by the act is valid and free from all constitutional objection. And it was further said, except in cases restricted by the Bill of Rights and the Constitution, the Legislature has the absolute power of taxation over all the property within the state. There is but...