Leser v. Lowenstein

Burke, J., delivered the opinion of the Court. The State Tax Commission of Maryland, acting under the powers which it claimed to have been conferred upon it by the Act of 1914, Chapter 841, and the Act of 1916, Chapter 629, determined to order a general assessment of all taxable real estate in the counties of Maryland, and it directed that assessors be appointed in all the counties of the State to asr sess real estate only within said counties. -The Board of County Commissioners of Frederick County, in obedience to the orders and directions of the Commission, was about to appoint the several assessors for Frederick County, and were about to instruct them to assess only real estate situated within the said county. The assessment in all the counties was to be limited to real property. It was not proposed that there should be, under the present orders and instructions . of the State Tax Commission, an assessment of any property ²⁴⁷ in the City of Baltimore.

The appellees, who are residents and taxpayers of Frederick County, filed a bill in the Circuit Court for that county against the State Tax Commission of Maryland, Alfred W. G-aver, the Supervisor of Assessments for Frederick County, and the County Coinmisr sioners of Frederick County, in which it was prayed that an injunction he issued restraining the defendants from, proceeding to make any assessment on any property in that county under the order and direction of the State Tax Commission. The defendants filed a demurrer to the whole bill, and this appeal was taken by all the defendants from the order of the lower Court overruling the demurrer. It is contended for the appellees that the State Tax Commission of Maryland has no power under -the Acts of Assembly, under which it is proceeding to act, to make the proposed assessment, and, therefore, its action is ultra, vires, illegal and void. Four reasons have been urged in support of the plaintiffs’ contention.

Three of these are stated in the opinion of the Court below and were decided adversely to the plaintiffs. That part of the opinion which deals with these three objections is here transcribed : “The point mainly urged by the hill of complaint in opposition to the proposed reassessment is that it will not apply equally to all portions of the State, but that being restricted to the counties by the terms of the statute, all property in Baltimore City will be excluded from the revaluation. It is contended that such a discrimination renders the Act invalid. We can have no hesitation in overruling this contention.

There is no constitutional limitation upon the power of the Legislature which requires it to include in a single statute the provisions through which it intends to secure an equal and uniform valuation of property for the purposes of taxation. There are separate enactments by which property in Baltimore City is subjected to a continuing process of revision in order that it may be assessed for State and municipal taxes ac- ²⁴⁸ : : cording to its real value. If the Legislature was con- ' vinced that this standard has been uniformly observed .: in the assessment of Baltimore City property, but that • a lower measure of taxable value has been applied else- , where in the State, it was not, in our opinion, constitutionally necessary to subject the city to the expense of a superfluous reassessment merely because the county . valuation may need readjustment. “The objection that the proposed reassessment is ' ' illegal because the State Tax Commission has given •’ instructions, as alleged, that it shall apply only to real estate, seems to us to be likewise untenable. The Act of 1916, under which the reassessment has been ordered ■ by the Commission, and whose validity as a statute is assumed for the purpose of this objection, does not direct that all classes of property shall be revalued at the same time, and the Constitution does not obligate the Legislature to impose such a requirement. “The contention that no sufficient notice of the reassessment is prescribed for the benefit of the owners of the property to be valued is met by the provision of the Act of 1914 for a hearing at the instance of any taxpayer, as to the assessment of his property, before the County Commissioners, and on appeal, before the State Tax Commission.

It has been held by the Court of Appeals in the case of Monticello Company v. Baltimore City, 90 Md. 428 , that personal notice of an assessment of property for taxation is not necessary. ‘It is sufficient,’ said the Court, If notice be given by a law designating the time and place where parties may contest the justice of the valuation.’ We fully concur in the conclusions reached by the Court below upon these objections, and in the principles of law upon which the conclusions rest. But the Court sustained the plaintiffs’ right to an injunction upon the facts stated in the bill upon the ground that the Act of 1916, Chapter 629, was void and that no general assessment could be made under the Act of 1914, Chapter ²⁴⁹ 841. The Act of 1916, Chapter 629, was- held to be void because it contained an unlawful delegation of power to the State Tax Commission to provide uniform rules for separate assessment of land and classification, and sub-classifications of improvements on land and personal property. The Court properly held that this was a duty and power invested solely in the Legislature under Article 15 of the Declaration of Eights, as amended by the Act of 1914, Chapter 390, and adopted by the people in November, 1915.

The sole ground upon which the Act of 1916, Chapter 629, was held void was that by Section 249 of that Act, there had been an unlawful delegation of that duty and power to the State Tax Commission. The Court further held that no general reassessment could be ordered by the State Tax Commission until the Legislature had provided, as was its duty to do, the uniform rides for assessment and classification enjoined by the Constitutional Amendment above referred to. If the legal position taken by the lower Court he sound, the conclusion reached by it is correct, and there can he no general re-assessment of property in the State until the Legislature shall have provided the rules contemplated by the Amendment-. We are unable to agree with the conclusion of the lower Court upon this branch of the ease.

It gives an unwarranted scope and effect to the amended Article of the Declaration of Eights. That amended Article is here inserted: “That the levying of taxes by the poll is grievous and oppressive and ought to be prohibited; that paupers ought not to be assessed for the support of the government ; that the General x\ssembly shall, by uniform rules, provide for separate assessment of land and classification and sub-classifications of improvements on land and personal property, as it may deem proper; and all taxes thereafter provided to be levied by the State for the support of the general State Government, and by the Counties and by the City of Baltimore for their respective purposes, shall be uniform ²⁵⁰ as to land within the taxing district,, and uniform within the class or sub-class of improvements on land and personal property which the respective taxing powers may have directed to be subjected to the tax levy; 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.” The questions which lie at the very threshold of the discussion are: First, what effect did this amendment have.upon the law of the State existing at the time it became effective ?. Secondly, what limitations and restraints did it impose upon the power of the General Assembly with respect to future' legislation? As to the first question it is undoubtedly true that it abrogated or superseded Article 15 of the Declaration1, of Eights as it appeared in the Constitution of 1867.

There1 is no expression in the amendment to indicate that it was the intention of the people to give it a retroactive effect, and’ in the absence of such an intention the accepted rule of construction requires that it shall be giveen a prospective and’ not a retroactive effect. S'ome of its provisions are prohibitory and self-executing, and require no act of the Legislature to make them effective: (1) It prohibits the poll tax; (2) It declares that paupers should not be assessed for the-support of the government. These provisions are found in fhe Fifteenth Article of the Declaration of Eights of 1867;: (3) It declares that all taxes hereafter provided to be levied by the State for1 the support of the general State government, and by the counties and by the City of Baltimore for their respective purposes, shall be uniform as to laotd within the taxing districts, etc. This provision refers not to assessments, but to future-levies for taxes. The provision of the amendment which declares “that the General Assembly shall, by uniform rules, provide for separate assessment of land and classification and sub-classifications of improvements on land and personal' ²⁵¹ property, as it may deem proper,” imposed a clear, mandatory duty upon the General Assembly, which it alone could discharge and which it could not delegate, but it was not a self-executing provision.

The General Assembly neglected to discharge that duty, but it does not follow as a result of its failure of duty in this respect, that any valid laws relating to assessments, not in conflict with the amendment, may not be availed of for that purpose. The authorities appear to be uniform in support of the proposition that the failure of the Legislature to discharge a duty of the character imposed by this amendment leaves the valid and existing laws, not in conflict with any of its provisions, in full force and effect. It is said in Cooley on Constitutional Limitations (6th Ed.), 98, that: “But although none of the provisions of a constitution are to be looked upon as immaterial or merely advisory, there are some which, from the nature of the case, are as incapable of compulsory enforcement as are directory provisions in general. The reason is that, while the. purpose may be to establish rights or to impose duties, they do not in and of themselves constitute a sufficient rule by means of which such right may he protected or such duty enforced.

In such cases, before the constitutional provision can be made effectual, supplemental legislation must be had; and the provision may be in its nature mandatory to the legislature to enact the needful legislation, though back of it there lies no authority to enforce the command. Sometimes the constitution in terms requires the Legislature to enact laws on a particular subject; and here it is obvious that the requirement has only a general force; the Legislature ought to obey it; but the right intended to be given is only assured when the legislation is voluntarily enacted. Illustrations may be found in constitutional provisions requiring the Legislature to provide by law uniform and just rules for the assessment and collection of taxes; these must lie dormant until the legislation is had; they do not displace the law previously in force, though the purpose may be manifest to do away with ²⁵² it by the legislation required. * * * A constitutional .provision ■may be said to be self-executing if it supplies a'suflicient rule by means of which the right given may be enjoyed ,and protected, or the duty imposed may be enforced; and it is not ■self-executing when it merely indicates principles, without •laying down rules by means of which those principles may be given the force of law.” In the notes to the case of City of Newport News v. Woodward, 104 Va. 58 , reported in 7 Am. & Eng. Anno.

Cases, 625, it is said: “A provision which is complete in itself and needs no legislative enactment to cany it into effect or-provide means for its 'enforcement, is self-executing. * * * Self-executing provisions are chiefly characterized by language of the detailed character which is intended to be operative, and which would be used by a Legislature' were it enacting such a provision into law. * * * On the other hand, if a provision lays down general principles or is a general one directed to the Legislature, or one which covers an entire subject in a few words, or which fixes only limits of action, or provides no rule for its enforcement, or vests a wide discretion as to the manner in which the mandate shall be carried into effect, it is not self-executing, but it belongs to that class of powers which are dormant and inoperative until validity and vigor are imparted to them by specific .action of the legislative department of the government. * * * Constitutional provisions which are negative or prohibitive in character, their object being to suppress an existing evil, have as a general rule been held to operate immediately ex propria vigore, since they need no legislation to carry the mere prohibition into effect; and provisions which are addressed to the legislative branch of the government have generally been held not to be self-executing. * * * A constitutional provision that the Legislature shall provide a uniform rule of taxation is not self-executing.” The rule is stated in 6 R. C. L., secs. 52 and 54, as follows: ■“A provision may be mandatory without being self-executing. ²⁵³ The question has been said to be onei of intention in every case. A constitutional provision is self-executing where no legislation is necessary to give effect to it. * * * It has been said that the question in every case is whether the language of a constitutional provision is addressed to the courts or the Legislature. A provision that the Legislature should make suitable provisions for carrying a constitutional amendment into effect is obviously addressed to the Legislature and is indicative of the intention that such amendmeent should not become effective until made so by an Act of the Legislature'. This may be illustrated by a constitutional provision that the Legislature should provide by law for a uniform and equal rate of assessment and taxation, and should prescribe such regulations as should secure a just valuation.

Appropriate legislation is clearly necessary to carry these directions into, effect.” In Davis v. Burke, 179 U. S. (L. Ed.), 399, the rule is thus stated: “Where a constitutional provision is complete in itself it needs no1 further1 legislation to put it in force. When it lays down certain general principles, as to enact laws upon a certain subject, or for the incorporation of cities of certain population, or for uniform laws upon the subject of taxation, it may need more specific legislation to make it operative. In other words, it is self-executing only so far as it is susceptible of execution.” These principles appear to be supported by an unbroken line of decisions, many of which are referred to in the authorities from which we have quoted.

That such a provision as that under consideration does not affect existing laws not in conflict therewith is equally well settled. In 8 Cyc. 760, it is said: “Where future legislation is necessary in order to give force and effect to a constitutional provision, all existing laws remain in force until such legislation is enacted, except such laws as are repugnant to such provision when it was adopted. * * * While self-executing constitutional provisions operate wholly independent of legis ²⁵⁴ lative action, a provision that is not self-executing has only a moral force so far as legislative action is concerned; and until such action is taken, existing laws remain in full force and operation.” It is stated in section 27, 6 R. C. Law: “When a new constitution is established it is customary to insert a provision that all statutes in force and not inconsistent with the new constitution shall continue until amended or repealed by the Legislature, though it is generally recognized that such laws remain in force without an express provision to that effect. Although a new constitution may contain prohibitions • as to special legislation, it will not be construed as effecting a repeal of, or malting inoperative, special laws passed before its adoption. When a constitutional provision, instead of ' being restrictive, permits greater freedom of action the same principles seem to apply.

Thus it has been held that a constitutional provision empowering the voters of every city to enact and amend their municipal charter does not, of itself, alter existing charters. All statutes which are actually inconsistent with a new constitution are repealed by.implication, unless they constitute contracts within the meaning of the federal provision prohibiting an impairment of the obligation of contracts. Where, however, the constitutional provision is not self-executing a state statute is not thereby superseded.” This rule has been adopted and applied. Williams v. Detroit, 2.

Mich. 560; Doherty v. County of Ransom, 5 N. D. 1 ; Engstad v. Grand Forks County, 10 N. D. 54 ; Supervisors v. Stout, 9 W. Va. 706 ; New Central Coal Co. v. George’s Creek & Iron Co., 37 Md. 537 ; Brown v. State, 23 Md. 503 , and other cases. We take the principle to be well settled. There is no existing provision of the law upon the subject of assessment, valuation, and classification in conflict with any provision of the amendment. As to the second question.

It was said in Kenneweg v. Allegany County, 102 Md. 119 , that: “The General Assembly possesses all legislative power and authority except in ²⁵⁵ .such, instances, and to such extent as the Constitutions of the State and of the United States have imposed limitations and restraints thereon. In this respect the Legislature differs from the Congress of the United States, which has, and can exercise, only such power as the Federal Constitution expressly or by necessary implication confers upon it. In the General Assembly plenary power to legislate is vested, unless restrained by the Constitution. In the Congress the power to legislate is not vested, unless confided by the Federal Constitution.

In the State Constitution we look, not for the power of the General Assembly to adopt an enactment, but for a prohibition against its adoption. In the Federal Constitution we look, not for the prohibition, but for the delegated power to enact a measure.” The legislation passed subsequent to the adoption of the Amendment which is not in conflict therewith or in conflict with some provision of the State or Federal Constitution cannot be set aside by the Court. And where an Act of the General Assembly is assailed as repugnant to some provision of the State or Federal Constitution, the repugnancy must be clear to justify