Mayor of Baltimore v. Proprietors of Green Mount Cemetery

Le Grand, G. J., delivered the opinion of this .court. This case comes before us on an appeal from a pro forma judgment, rendered by the Superior Court of Baltimore city on a case stated. The statement of the facts may be thus abbreviated; By the act of 1837, ch. 164, the appellees were incorporated. As a corporation they are seized and possessed, for the purposes mentioned in the charter, of a quantity of land whose western boundary is the York avenue, within the limits of the city of Baltimore.

In the year 1851, an application was made .by the proprietors of a majority of the feet of ground binding and fronting on the York avenue, in the city of Baltimore, between the north side of Oliver street and the north side of North avenue, in the said city, to have the aforesaid part of the York avenue paved, in conformity with the ordinances of the Mayor and City Council of Baltimore. After notice by advertisement, the proper authorities determined that the avenue, as asked, should be paved, which was accordingly ⁵³³ done in the year 1852; and, in pursuance of the ordinances of the city, a tax was imposed upon the owners of property fronting on the said part of York avenue, equal in amount to the whole expense thereof, excluding the cross-streets, the amount assessed on the appellees being $3790.12. There is no question in the case in regard to the regularity of the proceedings of the corporate authorities of the city; the appellees resting their defence to the claim set up against them exclusively upon the language of their charter, the third section of which provides, that at least fifty contiguous acres of the land of the appellees “shall be forever appropriated and set apart as a cemetery, which, so long as used as such, shall not be liable to any tax or public imposition whatever.” The appellees insist, under this clause of their charter, they are exempt from all liability to pay for the paving in front of their property, alleging that the demand is a “tax” and a “public imposition ,” and being such, they are expressly relieved from all responsibility for the same by the words of the grant to them from the State. The decision, therefore, of the case, depends entirely on the true interpretation of the words which we have quoted from the act of incorporation.

The ordinances of the Mayor and City Council expressly designate, and the Court of Appeals, in the case of Eschbach vs. Pitts, 6 Md. Rep., 71 , recognize, the levy for paving as a “tax.” There is, therefore, no question in regard to the fact of its being such: the only question being, is it such a tax as is within the meaning of the act of 1837, ch. 164? The words, “ any tax or public imposition whatever,” most certainly are very comprehensive, and would, if strictly construed, apply to every possible form of taxation or imposition, and, as a consequence, necessarily include a paving tax. But, on the fullest consideration, we are unable to satisfy our minds that the statute in question should receive such an exposition. We think the legislature intended nothing mote than to exempt the property of the proprietors from all taxes or impositions levied or imposed for the purpose of revenue, and not to relieve it from such charges as are inseparably incident to its location in regard to other property.

At the time of the passage of the ⁵³⁴ act of 1837, (he York avenue was designated as a public street, and as such, was liable to be paved within the discretion of the city authorities, on the application of the proprietors of a majority of the feet of the land fronting on it. The effect of words of exemption from taxation has never been decisively settled by the Court of Appeals, although the question was presented in the case of Dolan & Foy, vs. The Mayor & City Council, 4 Gill, 394 . In that, as in this case, the claim was for paving in front of a grave-yard. The appellants there claimed exemption under the 2nd sec. of the act of 1841, ch. 23, which provided, that nothing contained in it should be “.construed to authorize the assessment of, or levy of any tax upon, the property belonging to the United States, to this State, or to any county or city within this State, or to any incorporated literary or charitable institution, county schools, houses of public worship, burying-grounds,” &c.

Baltimore county court, sitting in equity, held that the exemption only extended to public taxes, and not to a release of all liability for benefits conferred; such as might result from the opening or paving of streets. And this view was not only taken in connection with the category in which “ burying-grounds” was found in the act, but independently of it and in view of the nature of the thing itself. When the .case on appeal came before this court, the decree was., by a majority of the court, affirmed on grounds having no bearing on this question; one of the judges, however, did pronounce on the question, concurring in opinion with the court below. The county court recognized the authority of the case of The Mayor, &c., of New York, 11 Johnson, 80 , as also did this court in the subsequent case of Alexander & Wilson, vs. The Mayor & City Council, 5 Gill, 396.

In the case reported in 11 Johnson, the commissioners appointed by the court for the enlarging of Nassau street made a report of the estimate and assessment of the damage and benefit to the parlies interested in enlarging the street, by which it appeared that they assessed the benefit of the proposed improvement to certain churches in the city of New York. The churches objected to the assessment, on the ground that they were not liable because of a general law, which provided, “that no real ⁵³⁵ estate belonging to any church or place of public worship, &c,, shall be taxed by any law of the