Emory v. State

Bartol, C. J., delivered the opinion of the Court. This is an appeal from an order of the Superior Court, directing that a peremptory writ of mandamus be issued, requiring the appellant to pay to the Treasurer of the State certain taxes for the years 1870, 1871 and 1872, levied upon the capital stock of the company. The taxes claimed are 19 cents on the $100, imposed by the Act of 1868, ch. 371, and of one cent on the $100, laid by the Act of 1870, ch. 422, sec. 18. These taxes, making 19^- cents on the $100, it is alleged were levied by the Mayor and City Council of Baltimore for each of the years, 1870 and 1871, and are payable to the Treasurer of the State, as provided by the Code, Art. 81, sec. 93.

And tor the year 1872, a tax of 19 cents on each $100 in value of the shares of capital stock of the company, levied under the Act of 1872, ch. 419, according to the assessment thereof made by the Comptroller as provided by the Act of 1872, ch. 90. The answer of the appellant sets up several defences, and a replication thereto was filed by the appellee; and by agreement of counsel the cause was heard as upon demurrer to the answer; without prejudice as to the issues' of fact raised by the pleadings. We shall proceed to consider the several defences relied on in the answer. 1st. It is said the mandamus ought not to be granted against the appellant; because he was not President of the company before the 4th day of March, 1873, a period subsequent to the time when the taxes were due and payable, if due at all.

No better or more satisfactory answer to this objection is required, than is found in the opinion of the Judge of the Superior Court. Upon this point, we are content to rest our judgment upon what has been so well said by him ; merely referring in support of his views to The State vs. Mayhew, 2 Gill, 487 . 2nd. It is contended that the payment of the taxes for 1870 and 1871, cannot be enforced by this proceeding, for ⁵⁴ two reasons — First, because under the Acts of 1868, ch. 311 and 366, and 1810, ch. 422, sec. 18, they were required. to be levied by the Mayor and City Council, and to be collected by the local collector appointed for the City, and were not payable directly to the Treasurer of the State; the Act of 1868 having operated to repeal secs. 93 and 105 of Art. 81 of the Code; and if this be not so, then secondly, because by the Act of 1812, ch. 419, sec. 93, Art. 81 of the Code was expressly rej)ealed, and the power of the Treasurer (if he ever had it,) to require payment to himself of the taxes levied in 1810 and 1811, was thereby taken away. In our judgment,-this argmnent is based upon a misconstruction of the Acts of Assembly referred to.

By 1868, ch. 311, the levy of an annual tax of 19 cents in the $100, was directed to be made by the Mayor and City. Council; but the Act expressly required that the tax “ should be collected in the manner prescribed by the Oode.” Now the Code Art. 81, sec. 93, as to the State tax on the capital stock, required the same to be paid by the proper officer of the corporation, to the Treasurer of the State. So far from repealing this -provision of the Code, the Act of 1868 recognizes it as in force, and expressly directs that the tax thereby required to be levied, “ should be collected as prescribed by the Oode of Public General Laws ; ” That is as respects the tax upon capital stock by the Treasurer of the State; and as respects the tax irpon other property, by the local collector. Chapter 366 of the same year provides for appointment of collectors and prescribes their duties, in regard to the collection of State taxes upon other property, but has no reference to taxes levied upon the capital stock of the incorporated companies.

The argument on the part of the appellant, that because the Act of 1868 directs the levy to be made by the Mayor and City Council; it follows that the particular tax in question must be collected by the local collector, find» no ⁵⁵ support in the provisions of the Act. On the contrary, as we have before seen, the mode of collection is declared to be the same as prescribed by the Code. There is nothing in the Act of 1870, ch. 422, sec. 18, which prescribes a different mode of collecting the,,tax thereby imposed. We conclude therefore that under the Acts of 1868 and 1870, the taxes for the years 1870 and 1871, for which this suit was brought, were payable to the Treasurer of the State.

The next question to be considered is the effect of the Act of 1872, ch. 419, which repealed sec. 93, Art. 81, of the Code, and enacted another section in lieu thereof. It is argued that “as the Act of 1872, contains no reservation as to taxes payable to the Treasurer directly under sec. 93, which might remain unpaid, the power of the Treasurer to require them to be paid directly to himself, is taken away.” The same question arose in “ The Insurance Co. vs. Mayor & C. C. of Balto., 23 Md., 296 .” That was a proceeding by mandamus, to compel the company to return a list as required by the Code, Art. 81, sec. 97. The objection was made, that the 97th section had been repealed by the Act of 1864, ch. 391, “ and the repeal of the law on which the proceeding was founded, and which alone created the duty, if duty it was, to return the required list, precluded the issue of a mandamus to enforce the performance of an act, which had ceased to be a duty.” (Argument of Mr. Schley, p. 307.) But the Court held that the provision of the Code, under which the mandamus was asked, had not been repealed by the Act of 1864, except for the purpose of re-enacting the same with amendments, not changing the original provision ; and that the Act of 1864 interposed no obstacle to the affirmance of the order granting the mandamus. It will be found by reference to the Act of 1864, and the provision of the Code then under consideration, that ⁵⁶ the question then decided was the same as'the one now presented, and arose in the same way.

The Constitution, Art. 3, sec, 29, requires the General Assembly, in amending any Article or section of the Code, “ to re-enact the