Daly v. Morgan

Robtnson, J., delivered the opinion of the Court. The 19th section of the Act of 1888, chapter 98, entitled an “Act to extend the limits of Baltimore City, by including therein parts of Baltimore County," provides: First, that until the year 1900, the rate of taxation for city purposes oji all taxable property within the districts to be annexed, shall not exceed the then existing tax-rate of such property in Baltimore County, and that until said year, no increase shall be made in the assessment of such property. Second, that until the year 1900, the city of Baltimore shall expend, within the districts annexed, an amount equal to the revenue derived therefrom by taxation, in affording to the residents within such districts, the rights and privileges enjoyed by residents within the present limits of the city. The Act further provides, that the question whether the several parts of Baltimore County, shall be annexed to the city, shall be submitted to the legal voters residing therein respectively.

The main questions arising upon the construction of this Act are: First, the constitutional power of the Legislature, to extend the limits of Baltimore City, by including therein parts of Baltimore County. ⁴⁶⁴ And secondly, its power to discriminate in the rates of assessment and taxation, for city purposes, as between property within the districts annexed under the provisions of the Act, and property within the former limits of the city. The power of the Legislature to extend the limits of a city, by including therein parts of the county adjoining, when the city itself is a part of the county, is not and cannot be questioned. It is contended, however, that Baltimore City being a separate and independent territorial division of the State, and not a part of Baltimore County, the Legislature has no power to change the lines of the county by annexing part of its territory to the city. And in support of this contention, the appellant relies entirely upon section 1, of Article 13, of the Constitution.

After providing for the organization of new counties, and for locating county seats, this section further provides: “Nor shall the lines of any county be changed without the consent of a majority of the legal voters residing within the district, which, under said proposed change, would form a part of a county different from that to which it belonged prior to said change." It does not say, as has been argued, that the lines of a county shall not be changed except it be for the purpose of annexing parts 'of one county to another county. It merely provides that when the lines of a county are to be changed for this purpose, it must be done with the consent of a majority ■of the voters residing within the district to be annexed. The object, and sole object, of this provision of section 1, was to provide for the annexation of parts of one county to another. The entire section in fact, and the article in which it is to be found, deals exclusively with the Oorganizatidn of “new counties,” “the location of comity seats,” and the mode by which parts of one county may be annexed to another county, and the ⁴⁶⁵ limitation imposed upon the legislative power is in respect of these matters and these only.

Counties are political divisions of the State, organized with a view to the general policy of the State, and the functions and powers exercised by them have reference mainly to such policy. Besides, their representation in the General Assembly is fixed by the Constitution, and we can understand why it was deemed proper to make some provision in regard to the organization of counties, and the annexation of parts of one county to another. Towns and cities however are ordinarily chartered at the instance, and mainly with reference to the interest, convenience and advantage, of persons residing within the' particular locality incorporated. They are chartered by the Legislature, and their boundaries are fixed by it, and the power to extend them, whenever in its judgment the public interests require it, has been exercised by the Legislature from the earliest days of the colony, bio reason has been suggested why the Constitution should prohibit the exercise of this power, and it would seem strange, that it should provide for the annexation of parts of one county to another, and deny to the Legislature the power to extend the limits of a city, by including therein parts of an adjoining county, even though such county should be a separate and independent territorial division of the State, bio one knew better than the framers of the Constitution of 1867, that the time must come, and that not far distant, when the extension of the limits of a great city like Baltimore would be absolutely necessary to its proper growth and development.

And if they meant to deny the exercise of this power by the Legislature, and to say that its limits as then defined by its charter, should for all time remain the same, it is but reasonable to presume that this intention would have been declared in plain ⁴⁶⁶ and explicit terms. So far from "being expressly declared, there is nothing either in the language or terms of this section from which such an intention can he inferred. The Legislature has, therefore, in our opinion, the same power now which it has always exe.rcised, to extend the limits of Baltimore City hy including therein parts of Baltimore County, and this too, with or ivithout the consent of a majority of the voters residing within the districts annexed. And this brings us "to the question as to the power of the Legislature to prescribe different rates of assessment and taxation for city purposes as between property within the districts annexed under the provisions of the Act, and property within the former limits of the city.

"VVe cannot agree that the discrimination made in this respect hy the 19th section, is in itself inequitable or unjust. The larger part of the territory annexed under the Act of 1888, embraces vacant outlying lots and farming lands, and the plainest principles of justice would seem to require a qualified exemption of such property for a limited period at least, from the heavy burden of city taxation. It must he some time before such property can bé available for building or business purposes, or can enjoy the full benefits and privileges of the city government. And if local taxation is founded on, or in any manner qualified hy, the principle of local benefits, there ought to he in all fairness some apportionment in the rate of taxation between such property, and property more advantageously located.

But the question, it is said, is not one of abstract justice, hut of constitutional power to make such apportionment. And'it is insisted that all property within the limits of a city, without regard to its location, or condition, w;hether improved or unimproved, must, under the Constitution of this State, he subject to the same rate of taxation for city purposes. ⁴⁶⁷ And in support of this contention, the appellant relies upon the Fifteenth Article of the Declaration of Rights, which says, “ that every person in the State, or persons holding property therein, ought to contribute his proportion of public taxes for the support of the government according to his actual worth in real or personal property.” Now it can hardly be necessary to say that this Article in the Declaration of Rights is to be found word for word in every Constitution adopted in this State. We shall not stop to consider the many -cases in which it has been, the subject of construction by this Court, nor the conflict of opinion as to the precise limitation thereby imposed on the taxing power of the State. Whatever may be the diversity of opinion in this respect, all agree, that the contribution by every one, of his proportion of public taxes levied for the support of the government, according to the value of his property, necessarily implies equality of taxation on all taxable property.

We say taxable property, for although the abstract declaration in the Bill of Rights may be said to subject all property to taxation, yet it has always been held, that the Legislature may exempt from taxation such property as in its judgment a sound policy may require. Nor can we agree with the appellees, that this principle of equality -applies only to taxes levied by the State for State purposes. Cities and counties are but local divisions of the State, organized and chartered for the more efficient and economical administration of the government. As such, they have no inherent power of taxation.

The Legislature itself may levy needful taxes to defray the general expenses of such cities or counties, or it may delegate this power to the local authorities. These expenses of a city or county, for example, expenses for the administration of justice, the support of the poor, educational purposes, the maintenance of the public ⁴⁶⁸ highways and other like expenses, are public or governmental expenses, and the power of taxation, exercised by the local authorities, to defray such expenses, is a delegated power derived from the Legislature. The Legislature, however, cannot delegate a power prohibited by the Constitution. And the taxing power, therefore, when exercised by the city or county authorities, is but the exercise of the taxing power of the-Legislature delegated to them, and is subject to every constitutional limitation to which the taxing power of the Legislature is subject.

And if so, a tax levied for public purposes, whether levied by the State, county or city authorities, must be equal and uniform throughout the State, county, city, or taxing district, to which it applies. A city however is but the creature of the Legislature, from which its power of taxation and all other powers are derived, and the same power which authorizes the Legislature to make one taxing district of an entire city, equally authorizes it to make two or more taxing districts, if in its judgment the public interests require it. The responsibility for establishing such taxing districts, rests upon the law-making power, and the principle of equality is fully gratified by making local taxation equal and uniform as to all property within the limits of the taxing district. Equality and uniformity as between different taxing districts, whether the district be an entire city, or parts of a city, is not required in local taxation.

Each city, county, or taxing district, may have its OAvn rate of taxation. It may be one rate’in one city, county or taxing district-, and a higher or less rate in another county, city, or taxing district, and such inequality has never been held, or even supposed, to be in conflict with the Fifteenth Article of the Bill of Rights.. Now the effect of the provisions of the nineteenth section, is to make the territory annexed under it a separate ⁴⁶⁹ taxing district, within the limits of the city as thus extended, and the Legislature itself, exercising its reserved right of taxation, fixes for a limited period the rates of assessment and taxation for local purposes, within such district. That it may exercise this power instead of delegating it to the local authorities, is well settled in this State.

State vs. Mayhew, 2 Gill, 487 ; State vs. Sterling, 20 Md., 502 . And the rates of assessment and taxation prescribed by the Act being equal and uniform as to all property within the taxing district or territory annexed, there is no ground on which it can be said that its provisions are in conflict with the Bill of Rights. And such has been the uniform legislative construction of the Bill of Rights for a period now of almost one hundred years. As far back as 1795, the Legislature prescribed a different rate of taxation for property within Baltimore County, and Baltimore Town, which at that time formed a part of the county.

In other words, it made Baltimore Town a separate taxing district. And then again the Act of 1816, chapter 2.09, entitled “an Act to enlarge the bounds of Baltimore City,” provided that no part of the city tax, of two dollars in the hundred pounds, should be imposed on any real or personal property within any of the new wards annexed, “ until there shall be at least five dwelling houses on each acre of land.” And then came the Act of 1817, chapter 148, which provided that commissioners should be appointed by the Governor “to ascertain and mark out the limits within said city so far as the same is, in their judgment, thickly settled, built up or improved,” &c., and that “the Mayor and City Council shall not have power to impose any direct tax upon the property without the said limits so to be ascertained.” The same power was exercised by the Acts of 1823, chap. 185; 1827, chap. 88; 1830, chap. 139; 1838, chap. ⁴⁷⁰ 168, and 1842, chap. 218. These several Acts were passed when the Constitution of 1116 was in full force, in which the Thirteenth Article of the Declaration of Rights is identical word for word with the present Constitution. The constitutionality of these laws has never been questioned; and so far as we know .they have never been supposed to be in conflict with the letter or spirit of the Bill of Rights.

This legislative construction was known to the-framers of the present Constitution and to the people who adopted it, and we must presume they accepted it, as. the proper construction of the power of the Legislature under this Article of the Bill of Rights. The same power, too, has been exercised by the Legislature in other States, under. Constitutions in which the principle of equality and uniformity of taxation is declared in explicit terms ; and its exercise has been sustained by the Courts in these States and by the Supreme Court of the United States. Serrill vs. Philadelphia, 38 Penn., 355 ; Gillette vs. City of Hartford, 31 Conn., 351 ; Gity of Henderson vs. Lambert, 8 Bush, 607 ; Benoist vs. St. Louis, 19 Mo., 179 ; United States vs. Memphis, 91 U. S., 292 .

We do not rest, however, our 'decision upon these cases, entitled as they are to the highest consideration, hut upon what we understand to be the spirit and meaning of our own Constitution. Whether the rate of taxation prescribed by the Act is to he construed as a contract and, therefore, binding-till the year 1900, orf a mere exemption or privilege which a subsequent Legislature may repeal, is a question in regard to which we express no opinion. If it cannot he sustained as a contract because the Legislature has no power to make such a contract with the voters of a county, or with a municipal corporation, or for any other reason, this would not affect the ⁴⁷¹ validity of the entire Act. Parts of an Act may be valid and parts invalid, and it is only when all the provisions are so mutually connected with, and dependent on, each other, that it cannot be presumed the Legislature would have passed the one without the other, that the invalidity of one of the provisions affects the validity of the entire Act.

Mayor and Council of Hagerstown vs. Dechert, 32 Md., 369 ; Township of Fine Grove vs. Talcott, 19 Wall., 666 . (Decided 23rd November, 1888.) One thing is clear, the rate of taxation prescribed by the 19th section is binding until it is repealed, and if it fails as a contract, it is by no means certain, the Legislature would not have passed the entire Act as it is, relying upon the good faith of the State not to repeal the qualified exemption granted under such circumstances. And so with the voters within the districts annexed. Whether it was a contract or a mere privilege rcpealable in the discretion of the law-making power was fully discussed, and the opinions of eminent counsel in regard thereto were published before the vote on the question of “extension” was taken; and for all we know to the contrary, the voters within the districts to be annexed 'may also have relied on the good faith of a subsequent Legislature not to revoke a pledge made in so formal and definite a manner.

Be this as it may, we cannot say the Legislature would not have passed the “City Extension Act,” even though they knew it was within the power of a subsequent Legislature to repeal the qualified exemption granted by the 19th section. For these reasons the order below will be affirmed. Order affirmed, and, bill dismissed. Bryan, J., filed the following concurring opinion: I think that the Act of the Legislature extending the limits of the City of Baltimore is constitutional and valid.

But in my opinion, it would have-been unconstitutional, unless it had required the consent of a majority of the legal voters residing in the territory annexed to the city. As Baltimore City was entirely surrounded hy the county, its limits could not have been extended without changing the lines of the county. Now, the first section of the thirteenth Article of the Constitution, after stating that the General Assembly may provide hy law for organizing new counties, locating and removing county seats, and changing county lines, uses this language: “nor shall the lines of any county he changed without the consent of a majority of the legal voters residing within the district which, under said proposed change, would form a part of a county different from that to which it belonged prior to said change.” This section was intended to give constitutional security to local government. The people were not to he denied the privilege of living under county governments of their own choice.

No portion of the population of a county were to he excluded from it, and transferred to another, unless their consent was given at the polls, through a majority of the voters of the district affected. The right of local government would he violated as much hy transferring them to the City of Baltimore without their consent, as it would he by annexing their territory to another county. The essential right of choice is denied in each case. Nor can we say, that in construing this section the City of Baltimore is not to he considered and treated as a county.

It is a county in all legal and political respects. It has its own Courts, its own representation in the Legislature, and its own local government. It is a distinct political sub-division of the State; and so ⁴⁷³ are the counties, and nothing more. It is so completely recognized hy the law as a county in everything hut the name, that it is declared hy the Code, as one of the rules of interpretation of statutes, that “ the word county shall be construed to include the City of Baltimore, unless such construction would be unreasonable.” (Filed 23rd November, 1888.) Alvey, C. J., filed the following opinion : T do not desire to be understood as dissenting from the order appealed from, refusing the injunction on the' bill in this case.

But I must dissent from the opinion of the majority of this Court, according to-which that order is affirmed. I dissent from the opinion because the practical'effect of it is to nullify that most valuable guaranty, found in the" Constitution of the State, designed. to restrain the power of unequal and arbitrary taxation. The question, whether it be competent to the Legislature to authorize the extension of the limits of the City of Baltimore, by annexing thereto certain districts of an adjoining county, in the manner provided in sections 1, 2, 3, 4, 5, 6 and 7, of the Act of 1888, ch. 98, I think may be answered in the affirmative. The City of Baltimore is one of the political territorial divisions of the State, and.

I can perceive no substantial objection to construing the appellative city as synonymous with that of county; -and I think such construction, while it is not according to the literal reading of Art. 13, sec. 1, of the Constitution, is according to the spirit, and the general object and purpose of the constitutional provision. The Act provides for taking the sense of the people, as it should be expressed by a majority of the legal and qualified voters in the districts to be annexed, as required by ⁴⁷⁴ the Constitution; and therefore the people of the district annexed to the city can have no good cause , to complain of the annexation, the majority of the voters therein having so 'elected. Indeed, the popular election was an indispensable condition; as the Constitution expressly provides, that the lines of no county “shall be changed, without the consent of a majority of the legal voters residing within the district which, under said proposed change, would form a part of a county different from that to which it belonged prior to said change." It would be difficult to suggest a reason why popular consent should he required as a condition of severance for annexation to another county, but not for annexation to the city. Such a distinction, I am sure, was never contemplated.

But it is the 19th section of the Act of 1888, ch. 98, providing for the extension of “the limits of Baltimore City, by including therein parts of Baltimore County, that gives rise to the question upon which I particularly dissent from the opinion of the majority of the Court. By that section it is provided, that, prior to the year 1900, the rate of taxation in the annexed district or districts shall not exceed the present rate of taxation of Baltimore County; and that, until the year 1900, there shall not be, for the purposes of city taxation, any increase in the present assessment of the property now assessed, nor of the property not now assessed, but which may be liable to assessment before the year 1900. It is conceded that the present rate of taxation of Baltimore County is but sixty cents in the $100, while in the City of Baltimore, as bounded before the extension, the rate of taxation is about one dollar and ninety cents’ in the $100, or more than three times the amount of the rate in Baltimore County. It is further provided, by this section, that, until the jear 1900, the City of Baltimore shall expend within the ⁴⁷⁵ annexed territory “ an amount at least equal to tlie amount of revenue derived from taxation on tlie basis therein set forth from said territory, in affording to the' residents within said territory the rights and privileges accorded to and enjoyed by the residents within what are the present limits of said city ; but nothing in this Act shall be so construed as to require the expenditure by said city of any greater sum,” &c.

On the part of the plaintiff, the appellant on this appeal, it is alleged and insisted that the provisions of this 19th section of the Annexation Act are grossly violative of both the letter and spirit of Article 15 of the Declaration of Rights of this State, which declares , that the levying of taxes by the poll is grievous and oppressive, and ought to he prohibited; that paupers ought not to be assessed for the support of the government: but every person in the State, or person holding property therein, ought to contribute his proportion of public taxes for the support of the government, according to his actual worth in real or personal property, yet, fines, duties or taxes may properly and justly be imposed or laid, with a political view for the good government and benefit of the community.” If is insisted by the plaintiff that not only the 19th section of the Act, but the whole statute, is rendered null and void, because of the obnoxious provisions contained in the 19th section before recited. This contention is strongly controverted by the defendants ; and the leading question on this appeal is that in respect to the proper construction and application of the 15th Article of the Declaration of Rights. This 15th Article, as it now stands in the present Declaration of Rights, formed the 13th Article of the Declaration of Rights of 1776, and it has been incorporated in, every Declaration of Rights adopted in the Ktate since that time. And it has been repeatedly ⁴⁷⁶ held, that the Declaration of Rig'lits is to he taken as part of the Constitution of the State; that it declares not only doctrines relating to and confirmatory of personal rights, hut fundamental principles that are to he regarded in administering the powers of government.

Crane vs. Meginnis, 1 G. &.J., 463; The Regents, &c. vs. Williams, 9 G. & J., 411, 412 ; Anderson vs. Baker, 23 Md., 571, 573, 588 . The form of expression employed in the various Articles of the Declaration of Rights, such as we have in the 15th Article, imports a positive limitation of power. The verbal phrase ought means, or necessarily implies, obligation or duty ; and is equally imperative as would he the word shall, if used in the same connection. This is clearly shown by express decisions.

In Crane vs. Meginnis, supra, where the 6th Article of the Declaration of Rights, which declares “ that the legislative, executive and judicial powers of government ought to he forever separate and distinct from each other,” was considered, it was held, that the terms of the Article operated as a positive limitation of power ; and because the provision of one of the sections of a statute was adjudged to be an attempted exercise of judicial power by the Legislature, that section was declared to he absolutely void, though the rest of the statute was held to he valid. And so in the important and leading case of The Regents vs. Williams, supra, involving the consideration of fundamental questions, the Court laid it down with emphasis, that “the division of the powers of the government proclaimed by the 6th Article of the Bill of Rights, and the 21st Article of the same instrument, declaring, ‘ that no freeman ought to be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, hut by the ⁴⁷⁷ judgment of liis peers or hr the law of the land/ were intended as restraints upon the legislative power, by means of the Courts of justice, in which the laws were to be administered, and where all would he entitled to be heard, and have an opportunity afforded them of asserting and defending their rights against any at- ■ tempted invasion.” In the argument at bar, as I understand it, it was conceded by counsel for the appellees, that the 15th Article of the Declaration of Rights does operate as a restraint or limitation upon the power of the Legislature in imposing general taxes upon the State at large, for State purposes, and that such taxes must be equal and-uniform. This concession might well he made; for it has been the established and received opinion, among the ablest of the profession, since the adoption of the Declaration of Rights, that every person ought to contribute to the support of government according to his actual worth, and that this was a fundamental principle embodied in the organic law, and not discretionary with the Legislature, but a binding rule, from which no lawful departure could be made by legislative design. The Tax Cases, VI G. & J., 134, 145.

And the Courts, in many cases, have expressly held, and in other cases assumed it to be unquestionable, that the provision of the Declaration of Rights, embodied in the 15th Article, is a positive limitation upon the legislative power of taxation, requiring all general taxes to be equal and uniform, as near as possible. This is shown in the clearest manner, and beyond the cavil of a doubt, in the cases of Waters vs. The State, 1 Gill, 303 , 308; Mayor & C. C. of Balto. vs. Balto. & Ohio Railroad Co., 6 Gill, 288 ; State vs. Sterling, 20 Md., 502, 516 ; Tyson vs. State, 28 Md., 577, 586, 587 ; State vs. Cumberland & Penn. Railroad Co., 40 Md., 28 , 50; State vs. P. W. & B. Railroad Co., 45 Md., 361 . ⁴⁷⁸ But while thus conceding the restrictive force of the Article, as applied to the levy of general taxes for State purposesj it is denied to have any application to, or restraining effect upon, the power of the Legislature, in authorizing the levy of general taxes for county or municipal purposes. To this proposition I cannot assent.

There is nothing in the terms of the Article of the Declaration of Rights to indicate such distinction, nor does the reason or principle upon which the Article is founded justify such discrimination. It is matter of common knowledge that by far the heaviest and most oppressive taxation is that levied for municipal and county purposes; and it is in that taxation that the greatest abuses most frequently occur. If the object of the provision of the Declaration of Rights was to restrain the possible abuse of power, why should it be confined to the levy of taxes for the State at large? If the principle be sound and valuable as a means of protection to the people, why should it not equally apply to the general taxes levied for municipal and county purposes, as to those levied for the