Moffat v. County Commissioners

Boyd, J., delivered the opinion of the Court. The appellant filed a bill in equity against the County Commissioners and treasurer of Calvert County praying that an assessment and levy of taxes therein mentioned be declared illegal, null and void, and that the treasurer be enjoined from the collection of the taxes. The defendants demurred to the bill and the Court below passed a decree sustaining the demurrer and dismissing the bill. From that decree this appeal was taken.

The bill alleges that the complainant purchased of the Chesapeake Beach Railway Company on the 31st day of May, 1901, certain lots of ground described in a deed filed as an exhibit; that the said land was improved by a building known as the “Club House,” and the County Commissioners at its annual session in the year 1901, for the purpose of assessing property, assessed the “Chesapeake Beach Improvement Company” with certain improvements which are set out, including the “Club House. ” It is alleged that before making the assessment the County Commissioners failed to notify the Chesapeake Beach Improvement Company, or the complainant, the owner of said lots and improvements, of the assessment, and that the property was not assessed and returned by a collector or assessor whose duty it was to assess and return the same. The levy of the taxes on that assessment and the fact that the treasurer was about to proceed to collect them are also charged. The bill purports to have been sworn to by an agent and attorney in fact for the complainant, who made oath “that the matters and things stated in the afore ²⁶⁸ going bill of complaint are true, to the best of his knowledge and belief.” There can be no doubt that the bill was defective because it was not properly verified. We held in the recent case of Fowble v. Kemp, 92 Md. 630 , that an affidavit to a bill for an injunction made by an “attorney and agent for the company” was not sufficient, as it did not show that the affiant had personal knowledge of the facts alleged in the bill.

It was there said, “When the affidavit on its face shows, as this one does, that it is made not by a party to the cause, but by a person who could not know the facts except by hearsay, unless his means of knowing them in such a way as to authorize him to testify be disclosed, a Court has no right to assume that his knowledge is personal rather than hearsay, if it may be either the one or the other. If it be hearsay it is not sufficient to verify a bill for an injunction. If his knowledge be personal, it ought to appear that it is.” The reason of the rule is that there must be at least prima facie evidence of the facts on which the complainant’s equity rests, so that the confidence of the Court may be obtained, before it can be called upon to issue an injunction. That cannot be done by an affidavit of one not a party to the cause, who simply swears that the matters and things stated in the bill are true to the best of his knowledge and belief, but does not inform the Court as to the source of his information or what knowledge he has on the subject.

That defect in the bill was therefore sufficient to justify the Court in refusing to grant an injunction. But there are other objections to the bill which apply to all the relief sought. It does not even allege when the assessment complained of was made—further than to say that it was at the annual session of the County Commissioners in'the year 1901 for the purpose of assessing property. The brief of the appellees states that the meeting was in March.

Although the record does not disclose that fact, there is nothing whatever to inform the Court when it was. Section 49 of Art. 5 of the Code of Public Local Laws contemplates the making of the levy for Calvert County in April of each year, and it ²⁶⁹ may therefore be presumed, in the absence of some allegations to the contrary, that the annual session of the County Commissions referred to was held before the date of the deed to the appellant. It was executed May 31st, 1901, and prior to that time the Chesapeake Beach Railway Company was the owner of the property, while the bill only alleges that the County Commissioners failed to notify the Chesapeake Beach Improvement Company, and the complainant, of the assessment and does not allege that the Chesapeake Beach Railway Company was not duly notified. If the property belonged to the latter company, there was