Scharf v. Tasker

• Decision Date: 22 January 1891
• Citation: 21 A. 56,73 Md. 378
• Parties: SCHARF, COMMISSIONER, v. TASKER.
• Court: Maryland Court of Appeals

21 A. 56

73 Md. 378

SCHARF, COMMISSIONER, v. TASKER.

Court of Appeals of Maryland

January 22, 1891

Appeal from circuit court, Anne Arundel county.

Argued before MILLER, BRYAN, IRVING, and MCSHERRY, JJ.

James M. Monroe, for appellant.

Elihu S. Risley, for appellee.

MCSHERRY J.

During the January session of 1890, the general assembly passed an act entitled "An act to provide for the assessment of the unclaimed military lots and tracts of land in Allegany and Garrett counties, and for the collection of state and county taxes thereon, by selling the delinquent lands, and turning the net proceeds into the state treasury." By the first section, after directing that public notice should be given, warning the owners of unassessed military lots lying in the two counties named to establish their title thereto on or before the 1st day of April, 1891, it was provided that upon failure of the owners to comply, "all their rights shall be forfeited to the state." The second section is in these words: "That in order to enable the county authorities to trace and define the titles to these untaxed lands in time for the approaching general assessment, that they or their agent shall have free access to the records in the land-office of all patents certificates of resurveys, indexes, etc., that in any way affect the title to these unclaimed and untaxed lands; and that all fees charged to Garrett county for searches heretofore made in the land-office by Hiram P. Tasker, as agent for the commissioners of Allegany and Garrett counties be, and the same are, hereby remitted in consideration of the state taxes to be hereafter collected annually from these unclaimed lands." After the approval of the act. Tasker the appellee, as the agent of Allegany and Garrett counties, applied to the commissioner of the land-office for permission to make, free of charge, searches of the records in his office respecting the title to these lots. Col. Scharf, the commissioner, refused, and based his refusal on the ground that the act was unconstitutional. Thereupon the appellee made application to the circuit court for Anne Arundel county for a mandamus against the commissioner of the land-office. After answer and hearing, a peremptory mandamus was ordered, and, from that order, this appeal has been taken. By the fourth section of article 7 of the constitution, the salary of the commissioner of the land-office is designated, and it is declared that he "shall charge such fees as are now, or may be hereafter, fixed by law." He is required to "make a semiannual report of all the fees of his office * * * to the comptroller of the treasury," and "to pay the same semi-annually into the treasury." Under the act of 1874, c. 66, (Code, art. 54, § 13,) other duties were imposed upon the commissioner, and he was allowed to retain the fees authorized by that act to be charged by him. Tasker, the appellee, had made numerous searches in the land-office for the county commissioners of Garrett county, and quite a large bill of costs had accumulated, which costs were due by the county to the commissioner when the act of 1890 was passed. Unless the act of 1890, c. 513, gives the appellee the right to make, without charge, the searches he desires to make among the records in the landoffice, his application for a mandamus must be denied, because it is only by virtue of that act that he possesses the right he contends for. Whether the act in question does confer that right or not depends mainly upon whether that act is constitutional and valid. That it is invalid and unconstitutional is the defense which the appellant made unsuccessfully in the court below, and now renews in this court. The first section of the act of 1890 is palpably in conflict with the organic law of the land. After the close of the revolutionary war, the state of Maryland divided large tracts of land lying west of Ft. Cumberland into lots of 50 acres each, and allotted to every commissioned officer of the Maryland line four, and to every private soldier one, of those lots, which are now known as "Military Lots." Owing to lapse of time and other causes the present owners of many of these military lots are unknown, and the object of the first section of the act of 1890 was to compel these unknown owners to establish their title so that the property might be placed upon the assessment books of Allegany and Garrett counties. But the legislature exceeded the limits of its authority when it undertook, in the same section, to forfeit the property--the title and estate--of all unknown owners upon their failure to produce, within the time designated, the evidence of their title. It needs no argument and no citation of authority to show that the title of the unknown owners of these lots cannot be forfeited without due process of law; and that such legislation as this is far from having even the semblance of due process of law. While it might not be appropriate to comment upon, or to criticise, the questionable propriety of this fruitless effort to confiscate the property which the state, more than 100 years ago, in a spirit of gratitude, voluntarily...