Phillip Wagner v. Oscar Leser

• Decision Date: 29 November 1915
• Docket Number: No. 28,28
• Citation: 239 U.S. 207,60 L.Ed. 230,36 S.Ct. 66
• Parties: PHILLIP WAGNER, Incorporated, Plff. in Err., v. OSCAR LESER, A. B. Cunningham, and John Gill, Jr., Judges of the Appeal Tax Court of Baltimore City, and Jacob W. Hook, Tax Collector of Baltimore City
• Court: U.S. Supreme Court

239 U.S. 207

36 S.Ct. 66

60 L.Ed. 230

PHILLIP WAGNER, Incorporated, Plff. in Err.,

v OSCAR LESER, A. B. Cunningham, and John Gill, Jr., Judges of the Appeal Tax Court of Baltimore City, and Jacob W. Hook, Tax Collector of Baltimore City.

No. 28.

Argued October 25 and 26, 1915.

Decided November 29, 1915.

Messrs. Charles J. Bonaparte, George Washington Williams, and John Holt Richardson for plaintiff in error.

[Argument of Counsel from Pages 208-211 intentionally omitted] Messrs. S. S. Field and Alexander Preston for defendants in error.

Mr. Justice Day delivered the opinion of the court:

Phillip Wagner, a corporation, filed its bill on behalf of itself and other taxpayers owning property in Baltimore city, adjoining or abutting upon a public highway which has been paved with improved paving without having been assessed for any part of the cost thereof, and who are similarly situated with the complainant, who is the owner of certain real estate, improved by seven two-story dwelling houses, situated on Philadelphia road, a public highway within the limits of Baltimore city, which property abuts and adjoins upon the public highway, which had been paved with improved paving, to wit, vitrified brick, which property, or its present or former owner, had never been specially assessed for any part of the cost of said improved paving. The bill was filed for the purpose of enjoining the enforcement of a certain act of the general assembly of the state of Maryland (1906, chapter 401; 1908, chapter 202, of the Laws of Maryland), by which statute the general assembly enacted that a special tax be levied and imposed upon property in the city of Baltimore benefited by improved paving of the amount specified; said tax to continue as to each property for ten years from the time it attached thereto, the proceeds to be used for improved paving in the city of Baltimore, as provided in the act. The act provided that, for these purposes, all landed property in the city of Baltimore, adjoining or abutting upon any public highway which had been or should thereafter 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, was declared to be specially benefited by such improved paving to an extent greater than the entire amount of the special tax levied under the act. The property so benefited was divided into three classes: Class A to include all landed property in the city of Baltimore, adjoining or abutting upon a public highway paved with improved paving and having a width of not less than 30 feet so paved; Class B to include all such landed property in the city of Baltimore adjoining or abutting upon a public highway paved with improved paving and having a width of less than 30 feet, and not less than 15 feet, so paved; Class C to include all such landed property in the city of Baltimore adjoining or abutting upon any public highway paved with improved paving and having a width of less than 15 feet so paved. The appeal tax court of the city of Baltimore is authorized and directed by the act to proceed to classify and list for taxation, as provided by the act, for the year 1913, all landed property in the city of Baltimore which, on the 1st day of November, 1912, was in a situation to come under the requirements of either of said classes. Before classifying any property under the special tax provided in the act, the appeal tax court was required to give notice to the owner of the property, designating a certain time when the owner might appear before the court and be heard with reference to the liability of his property for the tax, and the class to which it properly belonged. After having given the owner reasonable notice and an opportunity to be heard, the appeal tax court is required to proceed to make the classification provided, and to certify their action, in making such classification, to the city collector in the same manner as in cases of classification of real and leasehold property in the annex for the different rates of taxation as provided under the act relating thereto; and the city collector is authorized to add the special tax to the tax bills of the property, to be called 'special paving tax,' and to collect the same in the manner as ordinary taxes on real estate are collected. The city collector is required to 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 a new paving fund provided in the Acts of 1906, chapter 40, and 1908, chapter 202, and to be exclusively applicable to the cost of the work authorized by said acts, or by any amendment or amendments thereof. Section 3 of the act defines improved paving to mean any substantial, smooth paving above the grade of ordinary macadam, and to include granite or Belgian blocks, vitrified brick or blocks, wood blocks, asphalt or concrete blocks, sheet asphalt, bitulithic bituminous macadam and bituminous concrete. Section 4 specifies the amount of the special tax to be as follows: On all property embraced in Class A, 15 cents per year per front foot or lineal foot adjoining or abutting upon the public highway; on all property embraced in Class B, 10 cents per year per front foot or lineal foot adjoining or abutting upon the public highway; and on all property embraced in Class C, 5 cents per year per front foot or lineal foot adjoining or abutting upon the public highway.

The bill recites that, under and by virtue of that act, chapter 688 of the Acts of 1912, the general assembly has attempted to levy and impose upon the property of the plaintiff and other property owners similarly situated, taxes under the three classes mentioned, and that the appeal tax court of Baltimore is proceeding now to list and classify for taxes the property so attempted to be levied upon by said act, and has classified said property of the plaintiff, designating it as belonging to Class A. The bill then sets forth various grounds upon which it is claimed the act is illegal, the one with which this court is concerned being that it is in violation of the 14th Amendment to the Constitution of the United States.

The act of 1906, to which reference is made in the act just recited, chapter 401, as amended by chapter 202 of the Acts of 1908, provides for the creation of a paving commission for the city of Baltimore, with powers to carry out a plan for a complete system of improved paving of the streets of the city. The court of appeals in its opinion in this case states that a fund of $5,000,000 was procured by means of a loan provided for this purpose, which loan was approved by the people at an election held on the 2d of May, 1911, and that the act was sus- tained by the court of appeals in the case of Bond v. Baltimore, 118 Md. 159, 84 Atl. 258; and that the object and purpose of the act of 1912 was to raise an additional fund of $5,000,000, to complete the plan adopted by the city for improved pavements throughout the city, and that this is to be done by a special paving tax upon property in the city specially benefited by improved paving as provided in the act.

The bill was demurred to upon certain grounds: that the complainant had an adequate remedy at law; that the act of 1912 in question did not violate the Constitution of the United States or the Constitution or Bill of Rights of the state of Maryland; that the houses of the plaintiff were enjoying special benefit and advantage, fronting upon a street improved with vitrified brick pavement, while other houses in the city are upon unhealthy and unsightly cobblestone streets, for which special advantage the charge put upon the houses of the plaintiff by the act in question amounts to $1.80 per year upon each of the houses, or $18 upon each house for the entire ten years. The demurrer sets forth certain other reasons why a court of equity should not intervene, not necessary to repeat. The demurrer was overruled in the circuit court of Baltimore city, and upon appeal to the court of appeals of Maryland, that court reversed the lower court and sustained the constitutionality of the act as against the attacks thereon both under the state and Federal Constitutions. (120 Md. 671, 87 Atl. 1040.)

We will notice such matters as are deemed necessary in order to dispose of the contentions concerning the alleged violation of rights secured to the complainant under the Federal Constitution. The provision of that instrument to which appeal is made by the complainant is the 14th Amendment in the protection secured thereunder against state action which has the effect to deprive of property without due process of law. This court has frequently affirmed that the general taxing systems of the state are not to be presumed lacking in due process of law because of inequalities or objections, so long as arbitrary action is avoided. It is not the purpose of the 14th Amendment to interfere with the discretionary power of the states to raise necessary...